If You Have Nothing to Hide You Have Nothing to Fear?

Outside the NSA's new Utah Data Center is a sign saying "IF YOU HAVE NOTHING TO HIDE YOU HAVE NOTHING TO FEAR." 

A recent decision by U.S. District Judge Richard J. Leon implicitly questions that nostrum.

Judge Leon, a George W. Bush appointee, ruled against the U.S. Government on the constitutionality  of the NSA's data-sweep from cell phone companies. It is a fascinating decision because of the extent of distrust of governmental shibboleths usually left unchallenged by judges afraid of challenging governmental activities in the name of "national security". Maybe there is, in fact, "something to fear" after all.

Judge Leon granted a preliminary injunction (which he stayed pending appeal) against the continuation of a U.S. Government program whereby telecommunication companies like Verizon are required to provide to the National Security Agency, on a daily basis, "call detail records" or "telephony metadata" relating to the incoming and outgoing electronic communications of their cell phone subscribers.  The court held that there was a likelihood that, after a full hearing, he would find that the program was an unreasonable search under the Fourth Amendment, and that the plaintiffs' interest in the privacy of their cell phone calls outweighed the public interest asserted by the government in support of the program. Klayman v. Obama, No. 13-0851 (RJL), 2013 WL 6571596 (D.D.C. Dec. 16, 2013).

An interesting but essentially irrelevant sidelight about one of the two individual plaintiffs: Larry Klayman is a veteran self-styled, usually-right-wing, pubic interest "activist." In 2012 he announced that President Obama and Vice President Biden had been "indicted" by a "citizens grand jury" for having willfully released classified national security information.  One of his websites proudly states that he "has been credited as being the inspiration for the Tea Party movement." Is it not apt and fitting that this particular case came to be only because two such disparate people as Larry Klayman and Edward Snowden crossed paths in this case?

The program was revealed in June 2013 by the Guardian, a U.K.-based newspaper, based on the revelations of a former NSA contractor, Edward Snowden. Shortly thereafter, the government confirmed the authenticity of the April 25, 2013 order of the Foreign Intelligence Surveillance Court ("FISC") compelling Verizon to provide the data to the government. The government also confirmed that the Program applied to other cell phone providers besides Verizon. 

This is how the government describes the program in its pre-hearing brief:

[T]he NSA obtains, through orders of the Foreign Intelligence Surveillance Court (FISC), bulk telephony metadata—business records created by telecommunications service providers that include such information as the telephone numbers placing and receiving calls, and the time and duration of those calls. The Government does not collect, listen to, or record the content of any call under this program, nor does it collect the name, address, or financial information of any subscriber, customer, or party to a call. The program operates under FISC-imposed restrictions, together with stringent supervision and oversight by all three branches of Government, to prevent access to, use, or dissemination of the data for any purpose other than foreign intelligence. Specifically, the NSA may only query the collected metadata for counter-terrorism purposes, and even then, only if there is a reasonable, articulable suspicion that the selection term (e.g., the telephone number) to be queried is associated with a specified foreign terrorist organization approved for targeting by the FISC. This requirement bars the type of indiscriminate querying of the metadata, using identifiers not connected with terrorist activity, to create “comprehensive profiles” of ordinary Americans’ lives as Plaintiffs speculate. As a result, only a tiny fraction of the collected metadata is ever reviewed, much less disseminated, by NSA analysts.

Government Defendants' Opposition to Plaintiffs' Motions for Preliminary Injunctions, Nov. 12, 2013, at 1-2 (emphasis added).

The Utah Data Center (from the NSA's website)

Judge Leon's handling of two central issues is fascinating for the refreshing irreverence of his thinking: not that he does not take the NSA's role seriously, but that he would not simply swallow whatever the government dished out in his courtroom. Would that federal judges had the guts to do so in all sorts of government cases, including cases not remotely dealing with national security.

Issue No. 1: 

Whether the interception and delivery of the 

data amounts to a "search"

The Fourth Amendment to the Constitution protects against "unreasonable searches and seizures." Judge Leon, the Plaintiffs and the U.S. Government all agreed that the program is not a seizure. Is it a search? Answering this question required the court to distinguish a long-standing Supreme  Court decision that the government argued established that the program is not a search. How he reached that decision reveals something about his apparent distaste for governmental obfuscation.

For purposes of this case, a search occurs when “the government violates a subjective expectation of privacy that society recognizes as reasonable." Based on the allegations in the case, Judge Leon posed the question as follows: "whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets." The judge later restated the question in essentially the same language: "whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval." One may very well say that with such a description of the issue, the judge's resolution was a foregone conclusion.

In the electronic era, at least, there is a thin line between whether a search has taken place and whether society expects that the data gathered are assumed to be confidential. Deciding the issue of whether there is a search begins with an analysis of the methods used to obtain the data and the nature of the data seized.

The government relied on a 1979 Supreme Court case, Smith v. Maryland.  The victim of an alleged robbery informed the police that, after the robbery, someone had been making harassing telephone calls to her. The police learned of the suspect's identity and, without a warrant, requested and received from the telephone company (through a "pen register") information that showed that the suspect had telephoned the victim's home telephone number a few days after the robbery. The Supreme Court held that the use of the pen register was not a search because the pen register did not reveal the contents of the call or even whether the call connected, and because there is no reasonable expectation of privacy in the phone numbers that a person dials. 

The government argued in its prehearing brief was that, despite the differences in the scope of a single pen-register request and the sweep of data by the NSA, the latter were not searches: they involve the telephone company's records;  people know when they make a call that this third party will make and keep records of the calls, and do not expect the detail of a call to be private. The government also stressed what it characterized as the limited scope of the data gathered:

Importantly, the call-detail records reveal only phone numbers and other numeric data, not any information identifying the caller or the person called. Thus, these data do not in fact reveal any information about the subscriber’s professions, political activities, or other activities in which they may have a privacy interest. The mere fact that the numbers dialed from a phone could, in some hypothetical sense, reveal the identities of the persons and the places. . . [T]he NSA does not know the identity of anyone making or receiving the calls (apart, perhaps, from the suspected terrorist actors associated with the 'seed' identifiers), and under the terms of the FISC’s orders, cannot use the metadata to detail individuals’ associations.

The latter argument would appear to go to the reasonableness of an expectation of privacy, not whether there was a base level of expectation of privacy. If the appeals court or the Supreme Court wants to protect the program, they will simply rule that Smith controls, notwithstanding the vast differences between the quaint days of single-suspect pen register requests and all-encompassing, indiscriminate data sweeps.

Judge Leon distinguished Smith on a number of grounds, including the length of time covered by the data; the long term, essentially institutionalized nature of the cooperation between the NSA and the cell phone companies; the differences between a one-customer pen register request and an all-encompassing sweeping up of all cell-phone users' metadata; and differences between the nature and quantity of the information gathered by the two methods, including the explosion in the use of electronic communications through cell phones: "the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives." 

 

Issue No. 2:

Whether the search was "reasonable"

Like all standards based on the elusive word "reasonable," the "reasonable expectation of privacy" test requires judges to evaluate governmental actions according to accepted societal standards. In the 1950s the Court reversed, on due process grounds, the conviction of a defendant based on the police pumping his stomach to reveal drugs he had swallowed, because, in the words of Justice Frankfurter, the action of the police "shocks the conscience" and "offend[s] those canons of decency and fairness which express the notions of justice of English-speaking peoples even towards those charged with the most heinous defenses." Rochin v. California, 342 U.S. 165 (1952). Not exactly a bright-line test, that.

In what may be the most significant -- if not vulnerable, because of his patent unwillingness to take the government's word for it -- sections of his decision, Judge Leon, in determining the reasonableness of the Plaintiffs' asserted expectation of privacy, tried to balance the government's need for the information against that desire for privacy. In doing so, the judge considerably shrank the government's asserted need for the data from a generalized need for "identifying unknown terrorist operatives and preventing terrorist attacks" to the much more limited desire "to do so faster than other investigative methods might allow." Judge Leon found, however, that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." This led the judge to conclude that

I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast.

James Madison

The Judge's distaste for lack of governmental candor

This last finding was one of a number of demonstrations of the judge's apparent distrust of the government's rationales, including his distrust of the government's willingness or ability to adhere to the limitations placed on the NSA's use of the gathered data by the NSA itself or by the super-secret Foreign Intelligence Surveillance Court. Other examples from his decision: 

• "I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will “degrade” the program in any meaningful sense."

• "[I]n one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!"

• "While more recent FISC opinions expressly state that cell-site location information is not covered by Section 1861 production orders, see, e.g., Oct. 11, 2013 Primary Order at 3 n.l, the Government has not affirmatively represented to this Court that the NSA has not, at any point in the history of the Bulk Telephony Metadata Program, collected location information (in one technical format or another) about cell phones."

• "The most recent FISC order explicitly “does not authorize the production of cell site location information,” Oct. 11, 2013 Primary order at 3 n.1, and the Government has publicly disavowed such collection. . .  That said, not all FISC orders have been made public I have no idea how location data has been handled in the past. Plaintiffs do allege that location data has been collected, see Second Am. Compl. ¶ 28; Pls.’ Mem. at 10–11, and the Government’s brief does not refute that allegation (though one of its declarations does, see Shea Decl. ¶ 15). . . Recent news reports, though not confirmed by the Government, cause me to wonder whether the Government’s briefs are entirely forthcoming about the full scope of the Bulk Telephony Metadata Program."

• "After stating that fewer than 300 unique identifiers met the RAS standard and were used as “seeds” to query the metadata in 2012, [an NSA official] notes that '[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three ‘hops’ from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records.' Shea Decl. ¶ 24 (emphasis added). The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context."

• "The Government maintains that the metadata the NSA collects does not contain personal identifying information associated with each phone number, and in order to get that information the FBI must issue a national security letter (“NSL”) to the phone company. . . Of course, NSLs do not require any judicial oversight, . . . meaning they are hardly a check on potential abuses of the metadata collection. There is also nothing stopping the Government from skipping the NSL step altogether and using public databases or any of its other vast resources to match phone numbers with subscribers." 

• "Such candor [on the part of one government witness] is as refreshing as it is rare."
  
  

That this George W. Bush appointee delivered this opinion may not be a surprise to those who have read other decisions by this judge, but it is, nevertheless, yet another example of the fact that political pedigree is not always the best predictor of judicial attitudes. It is also, to some degree at the minimum, of the slow, steady decline of confidence in governmental candor as a result of almost fifty years (since Vietnam) of governmental lies and distortions in support of this or that policy or political interest.

In that respect, Judge seems to have followed Holmes' approach to the development of the law in The Common Law (1881):

The life of the law has not been logic: it has been experience. The felt necessitiesof the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.