I found this article to be very interesting. The Supreme Court should tackle all of these issues.
Roughly a year and a half since the first Snowden disclosures, there's already been a judicial order to shut down the National Security Agency's bulk metadata collection program.
The lawsuit filed by Larry Klayman, a veteran conservative activist, would essentially put a stop to unchecked NSA surveillance. And at the start of 2015, he remains the only plaintiff whose case has won when fighting for privacy against the newly understood government monitoring. However, it's currently a victory in name only—the judicial order in Klayman was stayed pending the government’s appeal.
DC Circuit Court of Appeals may confirm ruling that ended practice, was stayed.
"I think it's impossible to tell which case will be the one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide the constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic Frontier Foundation, told Ars.
Rumold is one of the attorneys in First Unitarian Church, a case that is challenging government surveillance much like Klayman. Along with that pair, headline watchers should set alerts for cases such as American Civil Liberties Union (ACLU) v. Clapper, United States v. Moalin, and United States v. Muhtorov. Not only are there several other related cases that will likely be influenced by these decisions, but those five cases represent the strongest and most direct legal challenges to the current NSA surveillance state.
Ain't no party like a third party!
Before outlining the relevant cases, it's important to note the government's general justification for the legality of bulk metadata collection: the third-party doctrine.
This theory was codified most recently from a 1979 Supreme Court decision in Smith v. Maryland. In the case, the court found that individuals do not have an inherent privacy right to data that has already been disclosed to a third party. So with telecom data for instance, the government has posited that because a call from one person to another forcibly transits Verizon’s network, those two parties have already shared that data with Verizon. Therefore, the government argues, such data can't be private, and it’s OK to collect it.
But legal experts say that recent surveillance and privacy Supreme Court decisions could lead the courts to reconsider. The first Snowden revelation (published in June 2013) was that Verizon (and presumably other telecom firms) are routinely handing over all call records to the NSA. The metadata records include the date, times, and lengths of the calls.
In October 2013, the third-party doctrine was upheld. A Foreign Intelligence Surveillance Act Court (FISA Court) judge ruled that there was no privacy interest in such metadata collected and analyzed by the NSA. In short, if it's OK to collect third-party data on one person, it's OK to collect it on a bunch of people.
Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.
In sum, because the Application at issue here concerns only the production of call detail records or "telephony metadata" belonging to a telephone company, and not the contents of communications, Smith v. Maryland compels the conclusion that there is no Fourth Amendment impediment to the collection. Furthermore, for the reasons stated in—and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. Indeed, there is no legal basis for this Court to find otherwise.
Court allows warrantless searches in "exigent" cases like abductions, bomb plots.
But consider two recent Supreme Court cases: United States v. Jones (2012) and Riley v. California (2014). Both were decided by rare unanimous opinions, and both indicate an awareness that modern tech has changed reasonable privacy. Jones determined that law enforcement does not have the authority to place a GPS tracker on a suspect without a warrant. Meanwhile, the court found in Riley that law enforcement cannot search a person’s phone incident to arrest without a warrant.
"[These cases] are strong signs that the Supreme Court is aware that rules that were created in a period of time when the court analyzed targeted surveillance do not blindly apply where the government is collecting huge quantities of information," Patrick Toomey, an attorney with the American Civil Liberties Union, told Ars.
"As the quantity expand, a new constitutional analysis arises. We think the same type of principle applies here. Smith v. Maryland is one suspect’s data over three days as opposed to the information contained in everyone’s call records contained for 10 years or more."
For his part, the EFF's Rumold agreed with this reasoning.
"Riley signals that the Supreme Court recognizes that technological distinctions matter, and we can't blindly apply old precedent to new technology," he added. "Jones, or at least the concurrences inJones, signal that the scope and duration of surveillance makes a difference for constitutional purposes. Those twin principles put much of the NSA's domestic spying programs on pretty unsound constitutional footing."
Klayman versus Goliath
Case name: Klayman v. Obama
Status: Argued before District of Columbia Circuit Court of Appeals in November 2014, awaiting ruling
Klayman filed his federal lawsuit at the District of Columbia District Court on June 6, 2013, the day after the first published disclosures from the Snowden leaks. That initial revelation showed that Verizon routinely handed over all metadata on its customers to the NSA. So as a Verizon customer, Klayman argued that his constitutional rights—not to mention the rights of all other Verizon customers—were violated as the result of this data handover. The government relied on the third-party doctrine in its defense.
Indeed, the question in this case can more properly be styled as follows: when do present-day circumstances—the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the government, is now.
In sum, the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.
Unlike any of the other metadata-related cases thus far, Judge Leon ordered the government to immediately halt the Bulk Telephony Metadata Program and to destroy "any such metadata in its possession that was collected through the bulk collection program." However, he noted, "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal."
Judge: "It appears to me it's the same data" allowed by Smith v. Maryland.
In early November 2014, Klayman arrived at that appeal. The case was heard again, this time before the District of Columbia Circuit Court of Appeals. A ruling is expected in the forthcoming months.
Klayman is likely the first domino. There are a few other current cases making similar claims, and one is from June 2013 in fact. Like Klayman, Smith v. Obama argues that the government is violating plaintiff Anna Smith's rights by routinely collecting her metadata. Initially, a lower federal court in Idaho found that Smith "has no expectation of privacy in the telephone numbers that she dials." The case was heard at the 9th Circuit Court of Appeals in Seattle in December, and that appellate court is likely to rule sometime early in 2015.
Rand Paul v. Obama is a more high-profile Klayman-like example. The Kentucky senator filed in February 2014 in the United States District Court for the District of Columbia. But since the suit was filed in the same district as Klayman, it has been stayed pending Klayman’s appellate ruling.
Most recently, a Pennsylvania lawyer named Elliott Schuchardt joined the bandwagon and filed a suit in June 2014. In his amended complaint, Schuchardt went further than some of these other cases. Schuchardt v. Obama not only challenges metadata collection under the Section 215 of the PATRIOT Act, but it also contests other surveillance programs authorized by Executive Order 12333 and Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FISA AA). The case is still pending before the United States District Court for the Western District of Pennsylvania.
What do free software zealots and gun owners have in common?
Case name: First Unitarian Church v. National Security Agency
Status: Pending in Northern District Court of California
Unlike Klayman and similar cases, First Unitarian Church v. National Security Agency was filed on behalf of a number of religious and non-profit groups. This collective runs the gamut, representing Muslims, gun owners, marijuana legalization advocates, and even the Free Software Foundation. In total, the suit represents the broadest challenge to the metadata collection program so far.
Marijuana users, gun owners, civil rights groups unite—helped by Snowden leaks.
The EFF filed this case in July 2013, and it's based on the idea that the NSA has been conducting dragnet spying for years. First Unitarian Church is by no means the first suit to make this allegation. And it's actually similar to another ongoing case (Jewel v. National Security Agency) that was also brought by the EFF.
Carolyn Jewel is a romance novelist who lives in Petaluma, California, north of San Francisco. In the originalJewel complaint (PDF), Jewel and other plaintiffs alleged that the government and AT&T were engaged in an "illegal and unconstitutional program of dragnet communications surveillance conducted by the NSA and other Defendants in concert with major telecommunications companies." The evidence stemmed from materials leaked byformer San Francisco AT&T technician Mark Klein in 2006. For years, the case stalled in the court system, but it gained new life after the Snowden disclosures in 2013.
First Unitarian Church, meanwhile, takes the bulk collection of data and questions how it may reveal an individual's associations:
Plaintiffs’ associations and political advocacy efforts, as well as those of their members and staffs, are chilled by the fact that the Associational Tracking Program creates a permanent record of all of Plaintiffs’ telephone communications with their members and constituents, among others.
First Unitarian Church demands that the metadata program be declared unconstitutional and be shut down. The plaintiffs’ attempt to hold a court hearing regarding their attempt for summary judgment was denied earlier this month.
In a recent court filing, government lawyers pointed to Smith in their argument against summary judgment.
Indeed, as Plaintiffs acknowledge, it is the issue before the Ninth Circuit in Smith [v. Obama], virtually ensuring that the Ninth Circuit will soon rule on the very same claim, regarding the very same intelligence program, that Plaintiffs assert here. It would simply not be in the interests of judicial economy to hold a hearing on this very issue while it is pending for decision before the Ninth Circuit.
Judge Jeffrey White is also the presiding judge in Jewel, and it seems likely this particular case will wait until the 9th Circuit rules in Smith.
Just like stealing your datebook
Case name: ACLU v. Clapper
Status: Argued before 2nd Circuit Court of Appeals in September 2014, awaiting ruling
In September 2014, the 2nd Circuit Court of Appeals finally heard oral arguments in ACLU v. Clapper. The case was originally filed back in June 2013, days after the first Snowden revelations became public. A decision could come as soon as this month—and if so, it would be the first federal appellate court to rule on the validity of the NSA’s metadata program.
Group wants a judge to declare that "the Mass Call Tracking is unlawful."
ACLU v. Clapper is like the other cases outlined here, but it focuses specifically on the granularity involved in data collection. Clapper argues that the NSA metadata program is "akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations."
"The issues in these cases are similar," Ruthann Robson, a law professor at the City University of New York, told Ars by e-mail. "The first is a constitutional procedural hurdle of the plaintiffs' (challengers) standing to bring the claims. It is possible, however unsettling it may be, that no one has standing to challenge the NSA surveillance program, and thus the federal courts do not have power to consider the claims. Under the Fourth Amendment, the issues are whether the surveillance is a ‘search’ at all, making the Fourth Amendment applicable. And then, if it is a search, is the search ‘reasonable?’"
Nearly a year ago, on December 27, 2013, US District Judge William H. Pauley initially ruled in favor of the government in ACLU v. Clapper. As he wrote:
This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen.
While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds it is.
The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America’s enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record of this case.
Judge Pauley also noted that 15 different FISC judges have upheld the metadata program on 35 different occasions since May 2006.
Congress-approved board says NSA program “lacks a viable legal foundation."
Some subsequent external analysis disagrees with Judge Pauley's assertions. One congressional civil liberties watchdog found in January 2014 that the Section 215 metadata program "has contributed only minimal value in combating terrorism beyond what the government already achieves through these and other alternative means," adding that "cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government’s efforts, while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations."
The Privacy and Civil Liberties Oversight Board (PCLOB) agreed with this outside analysis, concluding that there is "no instance in which the [metadata] program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack."
The September 2014 appeals hearing before the 2nd Circuit ran nearly two hours, an unusually long argument—normally the court gives just 10 or 15 minutes to each side for oral argument in an appeal case. C-SPAN was allowed to record and broadcast the full proceeding, another unusual step in an appeals court that's nearly always closed to cameras.
But like the other cases outlined here, Clapper is entirely focused on the NSA’s metadata collection program, which is authorized under Section 215 of the PATRIOT Act. Presently, Section 215 is set to expire on June 1, 2015 unless it is specifically re-authorized by Congress. As recently as February 2014, James Sensenbrenner (R-WI), author of the PATRIOT Act, said the House would let it expire absent intelligence and judicial revisions to rein in the abuses.
Earlier in 2013, Sensenbrenner filed his own amicus brief in ACLU v. Clapper.
The vast majority of the records collected will have no relation to the investigation of terrorism at all. This collection of millions of unrelated records is built-in to the mass call collection program. Defendants’ theory of "relevance" is simply beyond any reasonable understanding of the word. And it certainly is not what amicus intended the word to mean.
Defendants do not explain why Congress would have enacted such meaningless provisions. The bulk data collection program is unbounded in its scope. The NSA is gathering on a daily basis the details of every call that every American makes, as well as every call made by foreigners to or from the United States. How can every call that every American makes or receives be relevant to a specific investigation?
An $8,500 mistake
Case name: United States v. Moalin
Status: Convicted in Southern District Court of California, appeal pending in 9th Circuit Court of Appeals
In 2015, the 9th Circuit Court of Appeals will likely hear oral arguments in the only criminal case where the government is known to have used metadata collection to prosecute a terrorism-related case.
New outside analysis shows 1 of 225 terrorism cases used metadata, but poorly.
United States v. Basaaly Saeed Moalin involves a Somali taxi driver who was convicted in federal court in San Diego on February 2013 on five counts. The counts include conspiracy to provide material support ($8,500) to the Somali terrorist group Al Shabaab, and Moalin was sentenced in November 2013 to 18 years in prison.
At congressional hearings in June 2013, FBI Deputy Director Sean Joyce testified that under Section 215, the NSA discovered Moalin conversing with a known terrorist overseas.
The case was domestic, but the FBI took over at that point. They began intercepting 1,800 phone calls over hundreds of hours from December 2007 to December 2008. The agency got access to hundreds of e-mails from Moalin’s Hotmail account, and this access was granted after the government applied for a court order at the FISC.
Moalin was arrested in December 2010. His lawyer, Joshua Dratel, did not learn of the NSA’s involvement until well after his client’s conviction. Dratel challenged the validity of the spying in court, requesting that the court compel the government to produce the FBI’s wiretap application to the FISC. The government responded with a heavily redacted 60-page brief, essentially arguing that as the case involved national security issues, such information could not be revealed.
Moalin is currently under appeal on the grounds that the NSA unconstitutionally abused its authority to target Moalin. Nearly all of 2014 has been taken up with delays in the case, even Moalin’s opening brief has yet to be filed. Court records show that it is due April 6, 2015.
"The Snowden disclosures have had a material impact on the case, as in an effort to counteract them (and justify the Section 215 metadata collection program), the government revealed in Congress for the first time (nearly six months after trial) that the investigation was instigated by Section 215 collection," Dratel told Ars by e-mail.
When snooping goes beyond metadata
Case name: United States v. Muhtorov
Status: Pending in District Court of Colorado
Different types of digital surveillance are authorized under various laws, but one particularly thorny one is Section 702 of the FISA Amendment Act. This authorizes PRISM and "upstream" collection programs like XKeyscore, which can capture digital content (not just metadata) primarily where one party is a non-US person outside the US. Executive Order 12333 is believed to generally cover instances where both parties are non-US persons and are both overseas—although EO 12333 can "incidentally" cover wholly domestic communication as well.
There are a number of pending cases impacted by challenges to this more invasive surveillance. While many court watchers have noted that any Section 215-related cases will likely be made irrelevant by Congressional action, cases that challenge Section 702 surveillance are equally, if not more, important.
"Even if one of the circuit courts invalidates the metadata program either under statutory or constitutional grounds, such a decision is likely to be mooted by Congress," Steve Vladeck, a law professor at American University, told Ars. "But there seems little interest in Congress to look at reforms to Section 702, which is why the litigation arising under that provision could be much more significant going forward."
Gov't notified Jamshid Muhtorov in October 2013 that it spied on him.
On January 2014, Jamshid Muhtorov became the first person to challenge warrantless collection of specific evidence in a criminal case against him. (The Supreme Court effectively shut down less-specific petitions last year, and the US government argues such data collection is authorized under Section 702.)
Muhtorov is an Uzbek human rights activist who has lived in the US as a permanent resident and refugee since 2007. He's accused of providing material support and resources to the Islamic Jihad Union (IJU), and the US believes the IJU is an Islamic terrorist group. The criminal trial was scheduled to begin in April 2012, but it's been beset with delays. Muhtorov plead not guilty during his arraignment hearing in March 2012.
Nearly two years ago, the Supreme Court decided in a 5-4 decision that even groups that have substantial reasons to believe that their communications are being surveilled by government intelligence agencies—such as journalists, activists, and attorneys with contacts overseas—have no standing to sue the federal government. The reason? They can't prove that they have been actively surveilled. It's a major catch-22 since those who were being watched weren't exactly going to be told about the surveillance.
All that changed in October 2013 when the Justice Department altered its policy, stating that when prosecutors used warrantless wiretaps against criminal defendants, the defendants must be told. Muhtorov became the first such person to receive such a notification.
Consequently, Muhtorov and his ACLU lawyers (including Patrick Toomey) filed a new motion against the government in his pending criminal case. In a 69-page brief, they argue that the "fruits of the [FISA AA] surveillance" be suppressed on the grounds that Muhtorov's Fourth Amendment rights, protecting against unreasonable search and seizure, were violated.
In October 2014, Muhtorov renewed his claim. In a motion "for notice of the surveillance techniques utilized by the government in its investigation," the defendant asks for notification of other kinds of surveillance, as authorized under Section 215, EO 12333, or other legislation.
Toomey and his other lawyers argued:
Notice of the government’s reliance on these surveillance techniques is essential to the due process rights of the defendants in this case. Without notice, the defendants cannot test whether the government’s evidence was, in fact, lawfully obtained—or whether government surveillance conducted without a warrant and without probable cause violated the defendants’ rights. Notice of surreptitious electronic surveillance is routinely required in criminal cases. Courts confronted this question with the advent of wiretapping decades ago and concluded that the government could not criminally prosecute an individual while keeping the sources of its evidence secret. Instead, defendants are entitled to know how the government monitored their communications and activities, and then to test—in an adversarial proceeding—whether the government’s evidence is derived from that surveillance.
Four other defendants in related cases—one in New York, one in California, and two in Oregon—received similar belated notices of surveillance. As Muhtorov’s attorneys observed, "almost all of them after they had already been tried or convicted." Those cases are United States v. Hasbajrami, United States v. Mihalik, United States v. Mohamud, and United States v. Khan, respectively.
The government’s response to Muhtorov’s motion is due by February 26, 2015.
Case name: N/A
Regardless of the status of these particular cases, the government continues its own argument. The current administration has consistently said the president’s Surveillance Program (PSP)—which Ars has reported on previously—gives the executive branch virtually unchecked authority to conduct extensive surveillance including the kinds outlined above. Surveillance under this legal authority continues to this very day, unabated.
Feds call it “twelve triple three”; whistleblower says it's the heart of the problem.
In the weeks after the first Snowden documents, a leaked classified draft report by the NSA’s Inspector General was published by The Guardian and The Washington Post. It explored the PSP's beginnings and evolution.
The PSP's legal justification has been provided by a still highly classified document that President George W. Bush signed on October 4, 2001, entitled "Authorization for specified electronic surveillance activities during a limited period to detect and prevent acts of terrorism within the United States." In fact, the entire legal analysis of EO 12333 was redacted.
While the authorization has never been published, the Office of the Director of National Intelligence (ODNI) unexpectedly acknowledged it as part of a declassification review in December 2013. According to that NSA Inspector General draft leaked in 2013, the NSA wasn’t even allowed to see the legal authorization for at least two years.
On May 6, 2004, the Office of Legal Counsel within the White House prepared a 74-page memo to the attorney general to outline the legality of "The Program." The publicly released version has substantial redactions. It does, however, contain this noteworthy section:
The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of this authority.