Judge Pauley: Metadata Collection Is Constitutional

On Dec. 27, 2013, U. S. District Court Judge William H. Pauley III issued his opinion in ACLU v. Clapper, in which he upheld the constitutionality of the NSA's collection of metadata of "virtually every telephone call to, from or within the United States."

His opinion runs directly contrary to Judge Richard Leon's opinion, which I discussed in Sunday's op-ed.

Judge Pauley first finds that the NSA's collection of breathtaking amounts of metadata does not amount to a search because a search occurs only when the government looks into an area where the individual has a "reasonable expectation of privacy."

"In Smith v. Maryland, the Supreme Court held individuals have no 'legitimate expectation of privacy' regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. Smith's bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties."

Judge Pauley then sets out what he considered the fatal flaws in the ACLU's arguments.

"The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata. ...

"First, the business records created by Verizon are not 'plaintiffs' call records.' Those records are created and maintained by the telecommunications provider, not the ACLU.

"Second, the Government's subsequent querying of the ... metadata does not implicate the Fourth Amendment -- any more than a law enforcement officer's query of the FBI's fingerprint or DNA databases to identify someone.

"The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search."

Judge Pauley then proceeded to discuss the presidents' "executive" power, when the president acts in national security matters pursuant to congressional authorization.

"The Constitution vests the President with Executive Power ... That power reaches its zenith when wielded to protect national security."

Then citing Justice Robert Jackson's highly regarded concurring opinion in Youngstown Sheet &Tube Co., Judge Pauley wrote, "When the President acts pursuant to an express or implied authorization from Congress," his actions are "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion ... rests heavily upon any who might attack it. ... And courts must pay proper deference to the Executive in assessing the threats that face the nation."

Judge Pauley then explained why such deference is accorded. "Most federal judges do not begin the day with briefings that may describe new and serious threats to our Nation and its people. Any injunction dismantling the section 215 telephony metadata collection program would cause an increased risk to national security and the safety of the American public."

Then, Judge Pauley found that "The effectiveness of bulk ... metadata collection cannot be seriously disputed." By way of contrast, Judge Leon had found 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."

Judge Pauley explains that failure away: "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."

Starting from his finding that the NSA metadata collection program did not amount to a "search," allowed Judge Pauley to focus instead on "national security concerns."

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to reconstruct and eliminate al-Qaeda's terror network."

But in his conclusion, Judge Pauley hedges his bets. Having written earlier that the NSA's collection of metadata was not a search, he concludes by saying that if it was a search, that it was a "reasonable exception" to the 4th Amendment's warrant requirement.

"The right to be free from searches and seizures is fundamental, but not absolute. ... The Bill of Rights is not a suicide-pact. ... Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. The ultimate touchstone of the Fourth Amendment is 'reasonableness.'"

The program, although sweeping, is "reasonable" in his view because it does what it is designed to do.

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice."

He buttresses his finding that the program is "reasonable," writing, "There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks."

And the program is "reasonable" because "The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court."

Posted Online: Jan. 13, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Judge Leon: Madison Would Be Aghast at Spying

In my last op-ed, I described what two federal judges have said about the extent of the NSA's Bulk Metadata Program.

U.S. District Court Judge Richard J. Leon has held that the program is unconstitutional. This op-ed discusses his opinion. Judge William Pauley has held that the program is constitutional. My next op-ed will discuss his opinion.

On Dec. 16, Judge Leon issued his opinion in Klayman v. Obama. In that case, the plaintiffs challenged the constitutionality of the NSA's wholesale collection of phone record metadata of all U.S. citizens. Judge Leon held that what the NSA was doing was an unconstitutional violation of the plaintiffs' Fourth Amendment rights against illegal search and seizure.

The Fourth Amendment provides: "The right of the people to be secure in their ... effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath ... and particularly describing the place to be searched, and the persons or things to be seized."

Judge Leon began his opinion by alluding to the background of the case. "On June 5, 2013, the British newspaper The Guardian reported the first of several leaks of classified material from Edward Snowden, which have revealed -- and continue to reveal -- multiple U.S. government intelligence collection and surveillance programs. That Guardian report disclosed a Foreign Intelligence Surveillance Court (FISC) order, dated April 25, 2013, compelled Verizon ... to produce to the NSA on 'an ongoing daily basis ... all ... metadata created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.'"

Judge Leon noted The Guardian further stated that this order "showed that under the Obama administration, the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk -- regardless of whether they are suspected of any wrongdoing."

Metadata includes information as to "what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted."

Judge Leon first found that that metadata collection was a search. "Having found that a search occurred in this case, I next must examine the totality of the circumstances to determine whether the search is reasonable within the meaning of the Fourth Amendment."

Judge Leon then noted "as a general matter, warrantless searches are per se unreasonable under the Fourth Amendment."

For that reason, he next looked to see if the NSA search might fall within a recognized exception.

"The Supreme Court has recognized only a few specifically established and well-delineated exceptions to that general rule ... Even where the government claims 'special needs,' as it does in this case, a warrantless search is generally unreasonable unless based on some quantum of individualized suspicion."

The judge then summarized the essence of the government's position:

"To my knowledge, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet."

The government's position shocked Judge Leon.

"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. ... James Madison ... would be aghast."

The judge then distinguished his holding from a U.S. Supreme Court precedent, Smith v. Maryland (1979), relied upon by the government.

"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 (circumstances) considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer ... is now.

"The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made (for a period of two weeks from his home) after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction."

Judge Leon's prime concern in refusing to carve out a Fourth Amendment exception appears to be that the same metadata that today can be used to ferret out terrorists, tomorrow can be misused by a dictator to ferret out all opposition.


Posted Online:   Jan. 11, 2014, 9:40 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Is What the NSA Is Doing Constitutional?

James Clapper is President Obama's director of national intelligence.
During a March 12, 2013, U.S. Senate Select Committee on Intelligence hearing, Sen. Ron Wyden, D-Ore., asked Director Clapper, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

Mr. Clapper responded, "No, sir."

Sen. Wyden then asked, "It does not?" and Clapper said, "Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."

Now, two contrary opinions by two U. S. District Court Judges, Richard J. Leon and William H. Paulley III, make it very clear that Director Clapper flat-out lied.

What must be understood, is this: Both Judge Leon (a Bush appointee) and Judge Paulley, (a Clinton appointee) accepted the government's version of the facts. They made their finding based on the government's own description of the NSA's Bulk Metadata Program (BMP).

Under the BMP, which was developed under Section 1861 of the Patriot Act, the NSA collects metadata. That includes information about what phone numbers were used to make and receive calls, when the calls took place, and how long they lasted.

According to the government, the BMP is used to detect:

-- Domestic U.S. phone numbers calling outside of the U.S. to foreign phone numbers associated with terrorist groups;

-- Foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and

-- "Possible terrorist-related communications" between U.S. phone numbers inside the U.S.

But that is only the beginning. Assume a phone call from Pakistan, from number (555) 555-5555, comes into the United States to phone number (123) 456-7890.

If one of 22 designated officials at the NSA determines that either of those numbers is "associated with a terrorist group," then a NSA intelligence analyst -- without seeking a search warrant from a judge -- can authorize a "query" if he decides that facts exist which give rise to "a reasonable articulable suspicion" that either of the phone numbers in question is associated with one or more foreign terrorist organizations ("the seed"). The "query" involves a "three-hop" analysis.

In plain English, this means that if a search starts with telephone number (123) 456-7890 as the "seed," the "first hop" will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers).

The "second hop" will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 "first hop" numbers, or 10,000 total).

Finally, the "third hop" will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 "second hop" numbers, or 1,000,000 total).

What must also be understood, is that once a query is conducted and it returns a "universe" of responsive records (i.e., a "universe" limited to records of communications within "three hops" from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without further "reasonable articulable suspicion."

So, is all this constitutional?

The government claims it is. It argues that the BMP has been approved by an order of the Foreign Intelligence Surveillance Court (FISC).

The government assured the judges that metadata "does not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls." Finally, the government has stated the orders of the FISC governing the program specifically provide that the metadata "records may be accessed only for counterterrorism purposes."

What must be understood, is that what the NSA is doing raises grave Fourth Amendment questions. The Fourth Amendment provides "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Is the FISC order authorizing the BMP consistent with the Fourth Amendment? Sen. Rand Paul, R- Ky., doesn't think so, and has begun a class action law suit, which asks whether is it constitutional to "have a single warrant apply to millions of people."

I have written this piece, not to takes sides, but to set out what the NSA is doing according to two federal judges. Two companion pieces will follow discussing the contrary rulings of those two judges.

So did Director Clapper lie? Is this "inadvertent collection?"

You decide.

Posted Online:  Jan. 09, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea