American Vista

by Kieran Healy on December 27, 2013

U.S. District Court Judge William Pauley has ruled that one of the NSA’s mass metadata collection programs is lawful. On p.25 of the ruling itself, there’s a nice Appalling Vista moment:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’s intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215’s secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target’s awareness of section 215 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.

Of course this specific claim, this particular ruling, and this one case are all located in a much broader legal and political crisis. But the logic is striking all the same. “To hold otherwise would spawn mischief”, indeed.

Here’s a piece by me from earlier this year on the power of metadata.

{ 48 comments }

1

Bruce Wilder 12.27.13 at 7:04 pm

Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’s intent.

Authoritarian logic at its finest. You have no rights this government is bound to respect, and certainly no right to be heard in court.

2

Carlos Ave 12.27.13 at 7:42 pm

The clear fact that these outrages have not produced any viable information about terrorist activities only compounds the offense. If they could produce one solid supporting piece of evidence the public would probably give up their constitutional rights, but there is nothing there, but of course their response is that we’ve discovered all kinds of nasty stuff but it’s so secret we can’t tell you about it. Nuf said.

3

Heliopause 12.27.13 at 7:57 pm

Good god, if Congress ever passes the Secret Soylent Green Act I hope the challenge doesn’t end up in front of this judge.

4

christian_h 12.27.13 at 7:59 pm

An absolutely shocking judgement – not shocking in its outcome (the federal judiciary being what it is), but shocking in its arguments, that represent, as Bruce says, authoritarian logic at its finest.

5

mrearl 12.27.13 at 8:07 pm

Judge Pauley may have created an absurdity of his own by relying, in reaching the quoted conclusion, on the Supreme Court’s Block decision. There, no consumers could sue to challenge milk marketing orders because almost everybody buys milk; here, says Judge Pauley, nobody spied on can sue because everybody’s spied on.

The clocks are striking thirteen.

6

Alex K. 12.27.13 at 8:46 pm

Is he really arguing that congress intent to violate the constitution negate the protections of the constitution?

What am I missing?

7

Bloix 12.27.13 at 9:03 pm

Alex K (and Bruce Wilder) – what you are missing is the first four words of the quoted section: “Regarding the statutory arguments.”

The ACLU argued that the NSA mass data collection is unconstitutional. The judge found that it is constitutional.

Before reaching the constitutional claim, the judge addressed a different argument made by the ACLU: whether constitutional or not, the mass data collection program is not authorized by federal law. (Courts are supposed to deal with the non-constitutional issues first, because potentially over-ruling a statute on constitutional grounds implicates sensitive separation of powers issues. If the court had found that the program was not authorized by statute, it could have avoided having to rule on constitutionality.)

The judge addressed the statutory issues and found that the statute did authorize the program. In doing so, he noted that Congress was very clear that it wanted the program to be secret and it didn’t want to allow private suits like the ACLU suit. Then he asks, how can you be arguing that the program violates Congressional intent when the Congressional intent was clearly that you would never be allowed to sue?

8

Mao Cheng Ji 12.27.13 at 9:06 pm

I have the impression that what you’re missing is the so called ‘third-party doctrine’, that stipulates (roughly) that the forth amendment doesn’t necessarily apply to the information you’ve disclosed to a third party.

9

Alex K. 12.27.13 at 9:37 pm

Bloix,

So congressional intent to keep some law secret would preclude any statutory challenges to the application of the law (or at least, challenges by the public)?

If there is a secret law that allows police to do racial profiling and the police interprets the law as allowing them to beat on sight any “ethnic looking” person, there is no way the public can challenge the authorization of the police to do so, just because the law was secret?

10

mrearl 12.27.13 at 9:51 pm

Alex K: Not exactly. The fact that the data collection was secret was indicative (to Judge Pauley) of Congress’ intent that you not be able to sue–since, how would you know? Then he goes on to conclude that blowing the secret doesn’t entitle you to sue, since that would be an absurd way to defeat Congress’ intent that you can’t sue.

Well, he did have to address the statutory arguments. But he didn’t have to overdo it.

11

Alex K. 12.27.13 at 9:57 pm

“The fact that the data collection was secret was indicative (to Judge Pauley) of Congress’ intent that you not be able to sue–since, how would you know?Then he goes on to conclude that blowing the secret doesn’t entitle you to sue, since that would be an absurd way to defeat Congress’ intent that you can’t sue.”

That’s pretty far from airtight logic. Congressional intent to keep a law secret does not imply congressional intent to stop people from statutory challenges after the law is no longer secret.

12

Bruce Wilder 12.27.13 at 10:19 pm

Bloix: how can you be arguing that the program violates Congressional intent when the Congressional intent was clearly that you would never be allowed to sue?

Yes, and my point was that seeing a contradiction there requires authoritarian reasoning of a pretty high order. The mechanism to prevent the subjects (!) of surveillance from contesting the surveillance was a draconian secrecy regime, and when that regime was broken, breaking the mechanism preventing a lawsuit, the judge declares that it shouldn’t matter, and ridicules the plaintiff for having effrontery to think otherwise.

This is the essence of authoritarian reasoning: a “secret” is unauthorized information, as if information naturally required an imprimatur from the state to be real. It is not information, which is genuinely unavailable to all, except a narrow and carefully chosen few, for reasons of state, but only information, which is kept deliberately outside of useful legal and political cognizance, for reasons of power. The purpose is to dis-empower the mass of the citizenry, by barring the doors of the courthouse (and the legislature, let’s not forget them), by prohibiting discussion, debate and litigation alike.

What I left out was the Judge’s enthusiasm for the surveillance regime as a mechanism to keep us all safe. This guy is a supreme pants-wetter.

13

mrearl 12.27.13 at 10:41 pm

Judge Leon, in the D.C. District decision that reached the opposite constitutional result, employed the same Block-based reasoning in rejecting the statutory claims. We might wish he had stopped there, with good old expressio unius, but he went on to review the legislative history and couldn’t resist observing that Congress’ intent that the activity be secret indicates that you can’t sue, because you aren’t even supposed to know.

He was able to get there without insulting the plaintiffs, however. Starts at p. 23:

http://www.lawfareblog.com/wp-content/uploads/2013/12/Klayman.pdf

14

Alex K. 12.27.13 at 11:36 pm

Google claims this:

“The Electronic Frontier Foundation (EFF) today filed a brief on behalf of Rep. Jim Sensenbrenner (R-WI), the author of the original USA PATRIOT Act, in a case brought by the American Civil Liberties Union (ACLU) against the National Security Agency (NSA). In the brief, Sensenbrenner argues that Congress never intended the Patriot Act to permit the NSA’s collection of the records of every telephone call made to, from and within the United States. Sensenbrenner urges the court to deny the NSA’s motion to dismiss and grant the ACLU’s motion for a preliminary injunction, which would halt the program until the case is decided.”

Apparently, even if an author of the Patriot act thinks that there should be a statutory challenge, the good judge, Leon, still thinks that the public should not be allowed to sue. Pretty scary.

15

Ed Herdman 12.28.13 at 3:25 am

It is hard to see how this is in line with the Framers’ intent, but it’s also hard to see how you gain any protection of secrets by seeking to preclude suits brought after the cat is out of the bag.

16

mrearl 12.28.13 at 4:45 am

Re Sensenbrenner, via EFF: Legislative history is often manufactured, as Scalia revels in pointing out as his reason for utterly ignoring it. While he’s wrong to generalize so, there’s really no need to resort to legislative history in this instance, as standard statutory interpretation guides–e.g., expressio unius, est exclusio alterius (the expression of one is the exclusion of others)–will get the job done. I fault both judges for taking that excursion.

Now back to Sensenbrenner. Whatever the value of contemporaneous legislative history in statutory interpretation, post hoc lawsuit declarations of legislative intent by individual members are always accorded ZERO respect judicially (hey, I’ve tried it, and I’ve had it tried on me, it doesn’t work, and it usually pisses the judge off). EFF has good lawyers who know this. So that brief is PR and not really intended for the court.

17

Donald A. Coffin 12.28.13 at 2:39 pm

So if Congress intends to enact unconstitutional search-and-seizure programs, and intends to keep those programs secret, and enacts legislation embodying those intentions, then the resulting law and the ensuing searches and seizures cannot be challenged? And are therefore (implicitly) constitutional? The mind boggles…

18

Alex K. 12.28.13 at 2:57 pm

“So if Congress intends to enact unconstitutional search-and-seizure programs [...] [they] are therefore (implicitly) constitutional? “

That was my initial reading as well but I was wrong, as congressional intent does not apply to constitutional issues.

Nevertheless, according to judges Pauley and Leon, the public can not challenge the interpretation of a secret law, since apparently the law being secret implies congress intent to prohibit the public from suing on statutory grounds.

So if some governmental body interprets a power given by a secret law extremely broadly, the public can not challenge that interpretation, acording to Pauley and Leon.

Maybe it’s time for a constitutional amendment regarding secret laws.

19

John Quiggin 12.28.13 at 7:39 pm

Maybe I’m missing something, but as I understand it,

(i) it’s not the law that Congress intended to be secret, rather the fact that some particular person is the target of an order under the law.
(ii) previous decisions have said that you have no standing to sue, even if you reasonably suspect yourself to be the subject of an order,
(iii) as it’s turned out (just about) everyone is subject to some order or another
(iv) so we get the further contortion that, since we (for US values of we) shouldn’t have found out we were subject to the order, we shouldn’t be able to sue

But since the judge hasn’t thrown the case out on standing grounds, this just seems like an obiter dicta, confirming the fact that, like most US judges, he’s a servant of the security state. The real meat, I guess, is in the conclusion that the law is constitutional.

20

Alex K. 12.28.13 at 8:38 pm

“(i) it’s not the law that Congress intended to be secret, rather the fact that some particular person is the target of an order under the law.”

I think it was more than just the targeting of a particular person that was supposed to be secret. There was a secret interpretation of section 215 of the Patriot Act and NSA relied on that secret interpretation to justify gathering metadata for virtually all calls. Here is EFF’s claim on September 5 2013:

“In a major victory in one of EFF’s Freedom of Information Act (FOIA) lawsuits, the Justice Department conceded yesterday that it will release hundreds of pages of documents, including FISA court opinions, related to the government’s secret interpretation of Section 215 of the Patriot Act, the law the NSA has relied upon for years to mass collect the phone records of millions of innocent Americans.

[...]

For most of the duration of the lawsuit, the government fought tooth and nail to keep every page of its interpretations secret, even once arguing it should not even be compelled to release the number of pages that their opinions consisted of. It was not until the start of the release of documents leaked by NSA whistleblower Edward Snowden that the government’s position became untenable and the court ordered the government to begin the declassification review process.

John Quiggin:
” The real meat, I guess, is in the conclusion that the law is constitutional.”

Those attacking the legality of NSA actions seem to employ a two-pronged strategy: challenge NSA’s interpretation of section 215 of the Patriot act (which is not a constitutional issue) and challenge the constitutionality of total metadata collection. Theoretically, they can fail on the constitutional issue and still succeed in stopping the NSA, if the later’s interpretation of the relevant part of the Patriot Act is found to be wrong.

Both judges want to use congressional intent to keep surveillance secret as a reason for stopping the first part of the strategy, that of challenging NSA’s interpretation of section 215 of the Patriot Act.

This still looks dystopian to me and quite dangerous if applied in other contexts.

21

John Quiggin 12.28.13 at 9:00 pm

“There was a secret interpretation of section 215 of the Patriot Act and NSA relied on that secret interpretation to justify gathering metadata for virtually all calls.”

And that interpretation was secret, not only from the public, but from Congress, which makes the judicial interpretation of Congressional intent nonsensical, or so it seems to me.

22

ogmb 12.28.13 at 9:03 pm

“It cannot possibly be that lawbreaking conduct by a government contractor”

AFAICT Edward Snowden has yet to be convicted of anything.

23

K. Williams 12.28.13 at 11:32 pm

Whatever you think of Pauley’s decision about the constitutionality of the program, this is a long way from Denning, and has nothing of the Appalling Vista about it. Pauley wasn’t, as Denning was, making a broad judgment about what’s good for society and then saying that it was just too dangerous to allow a lawsuit to proceed. He was making a statutory argument about the meaning of a law that was passed by Congress. (He also wasn’t, as some in this thread seem to think, saying that the ACLU couldn’t challenge the constitutionality of the law.) Congress was very clear that it did not want targets of 215 orders (that is, the people that the executive branch wanted to gather information on) to be able to sue to block those orders. It also rejected an amendment that would have allowed recipients of 215 orders (those who are ordered to produce the information about the target) to sue in open court. As a result, there’s no plausible reading of the law that would let the ACLU sue on behalf of some nebulous group of “targets.” If specific, named targets and specific, named recipients are legally barred from challenging orders in open court, it can hardly be legal for the ACLU to. This isn’t an “authoritarian” conclusion — it’s a correct reading of the text of the law. The law may be authoritarian. Pauley’s decision on the statutory claim isn’t.

24

Martin Bento 12.29.13 at 9:42 am

John Q., Weelllll, the opinion points out that all senators and all congresspeople elected before 2010, had access to a (very brief) classified summary that mumbled something about monitoring substantially all calls and that therefore the congresspeople can be presumed to either have had knowledge of this or to consent to whatever had been decided when they voted to reauthorize the program. And the people on the relevant committees had more complete information. I think this provides justification for hammering the Congress on this: if they did not know, it is their own fault. It also makes Feingold even more of a hero for voting against all this in the first place, specifically on the grounds that he would not vote for something he had had no opportunity to read.

The deeper point is the legitimacy of secret law in a democracy. I see none. I’m with Bruce on this one: this is police state stuff.

But the left has not really developed a theory of privacy from what I can see, and many parts of it are suspicious of it. AFAICT, the general consensus of social science is that it is a specifically modern Western concept. I’m not sure of that; I’ve read in ethnographies about traditional societies having secrets they were loath to reveal to outsiders. Why can this not be considered a desire for privacy?

There is also the tradition that is suspect of privacy as a concept giving too much primacy to an atomized concept of the individual. And privacy must always be at root a right of individuals. No groups can have privacy if the individuals comprising it do not, while the reverse is not true. While many secrets are in fact shared within groups and shielded from outsiders, this is not a necessary property of secrets. What kind of pornography someone enjoys can be an individual secret shared with no one.

One response has been an instrumental view of privacy. Privacy should be defended when it serves an interest one wishes to further – for the left traditionally, some group of people considered oppressed – and not otherwise. Ironically, we are seeing the same logic here, as the government, while violating all of our privacy, is claiming a right of privacy itself – a right to have secret laws. If the rights of government come from the governed, it’s not clear how a people without a right to privacy can grant such a right to the government. But that argument may prove more cute than effective. A better argument is for privacy as a fundamental human right. And, no, neither governments nor corporations are people too.

25

Random Lurker 12.29.13 at 3:37 pm

@Martin Bento 24

“AFAICT, the general consensus of social science is that it is a specifically modern Western concept”

I believe that “privacy” in this sense refers to some specific rituals and/or backstage operations that are tipical of western culture, like, say, nobody should see you dressed for the night or pissing, not to the concept of “privacy” in general.

Also, I don’t think the problem here is privacy, but more generally the freedom of the citiziens from the government (more a libertarian than a leftish issue, admittedly).

26

Martin Bento 12.29.13 at 6:00 pm

random, the problem with defining the issue as freedom of the citizens from government is that, if the government does nothing in response to the information to the citizen, how is her freedom imperiled? If you believe in and assign value to a concept of “privacy”, the surveillance itself is harm, but if you do not, you are left with the position that observation itself does not harm anyone, which I think is the implicit government position here.

27

SusanC 12.29.13 at 6:52 pm

@16. I am not a lawyer, but that was also my undertstanding of how US law is supposed to work — what matters is what the law says (or, in cases where it’s ambiguous on its face, the legislative history), not what legislators say afterwards about what their intentions were.

Of course, this whole affair is about more than the strict legality of the NSA actions; if it turns out that the law allowed the NSA to do what they did, then the blame falls on the legislators for having passed the legislation in the first place: and new stricter legislation, and/or “vote the bums” out is the obvious remedy. “We didn’t intend the legislation to be interpreted this way” is a fine argument for a legislator to be making in the wider context, e.g. when proposing new legislation which would curtail NSA powers.

28

roy belmont 12.29.13 at 8:38 pm

random lurker at 3:37 pm-
Romans pissed in jars distributed along the streets of their cities. They didn’t have to go into some lockable chamber before their urinary sphincters unclenched. Consequently no cultural pee-shame.
Kids who’ve been raised in nanny-cam CCTV security facebook/internet always-on environments will have a real different view of privacy than kids whose interior worlds and bodies were given privacy sanctions, and those sanctions protected by adult guardians.
The ones who grew up constantly watched won’t necessarily be more accepting of open-sourcing reality but their attitudes toward it will be very different.
Something I’m having trouble with is people who sort of passively contemplate the ubiquity of staring lenses but imagine somehow that there are no cameras in the toilets, because, you know, that’s the crux of privacy. Right.
In 1999 no one on the internet knew you were a dog.
In 2013 everyone on facebook knows you’re a dog.
Teenagers are leaving facebook en masse.
Hmmm.
Is there an inchoate drive toward the reclamation of individual privacy there? Or just fad evolution.
Who cares what the government’s doing today, what’re the kids doing tomorrow?
Is the topical key the sanctity of individual privacy itself, or the sanctity of what comes out of that privacy and its unique ferment, versus the total shedding of individual privacy and absorption into the metastisizing digital amoeba, and what comes out of that?
Maybe it’s not so much the right to not be looked at, but the right to not be looked at by feral conscienceless mutants, who live in a cloud of virtual reality with very little biological ground.
The rap is something like:
“If you’re not doing anything wrong, why would you be worried about being stared at and listened to by anyone or even everyone?”

Well, number one because what that really means is anything you, the observing, think is wrong, or not, with what I’m doing. And you’re batshit crazy people. Provably and consistently wrong about many very important things.
Number two, telepathic resonance, with a resultant drag down toward the fallen median, an artificially retarded level of enlightenment. The cloud mind sucking the individual mind into itself in order to rise.
Number three, the complete transfer of individual skills and knowledges, and their lines of transmission, into the archives of surveillance, with consequent problems of dilution to dysfunction of ancestral wisdom and contemporary innovation, which don’t always come down the broad highway of mass culture. Raw data about the world versus folktales. Guild level furniture craftsmanship versus IKEA.
Insect versus mammalian consciousness.
The violent rejection of telepathy, and divine omniscience as well, by some otherwise open minds, seems to have its origin at a similar junction of fear of discovery and privileged arrogance.
Privacy enabling inactionable deviance from social norms. If minds can be read, all those fucked-up thoughts can be seen, but otherwise my thoughts are inadjudicable.
“But we can find the bad guys! With our thought-scanning algorithms!”
Yeah, but I can get rid of, by the same particle of logical justification, every bad guy on the planet, for now and all time to come, simply by getting rid of everyone.
The difference between the private mind and the private life is where all this goes.
Being stared at and listened to and having your innermost thoughts read by a benevolent and wise God, versus being stared at and listened to and having attempts made at reading your private innermost thoughts by mentally-disturbed desperate assholes.

29

William Timberman 12.29.13 at 9:13 pm

A point not often enough made, roy belmont. No one enjoys being forcibly enlisted as a character in someone else’s psychodrama. I’ve often wondered if that isn’t the real origin of tragedy: the attempt by individuals to modify, or to escape the roles assigned them by an unforgiving set of social definitions. It’s the main defect of families and traditional societies that they presume too much. The social contract, artificial construct though it might have been, was supposed to offer us some give and take. Unfortunately, power usually triumphs over that modest desire, at least until its reach exceeds its grasp. Too bad for all of us that we can live our whole lives out without seeing that wheel complete even a single revolution.

30

Random Lurker 12.30.13 at 12:25 am

@Martin Bento
My problem is that, if we think about it in terms of privacy, it is only embarassing information that is relevant, like what kind of porn do I like.

But I believe that the problem is different : in theory the order should be:
- an horrible crime happens
- the government collects information
- the culprit is punished.

But now the government collects information before the crime, and therefore it has to collect it on everyone, not just on suspects. In pratice, everyone is presumed potentially guilty.

Presumption of guilt is a classic example of government abuse.

31

Bruce Wilder 12.30.13 at 1:32 am

C’mon, random, everyone is guilty of something!

32

Andrew F. 12.30.13 at 1:58 am

+1 to Bloix @7 and K. Williams @23

I think the missing piece here is sovereign immunity, which frankly is somewhat authoritarian, but is hardly Judge Pauley’s invention.

The basic idea of sovereign immunity is that in order to be sued in court, the sovereign must consent to it. This is riddled with exceptions and qualifications, and exists in some tension with other principles, but it’s still a key legal concept. Congress uses its power to enable suits in some cases, and to not enable (or disable) suits in other cases, in the construction of frameworks of legal regulation.

So one of the questions that arises when the government is sued in connection with a particular statute is whether the government has provided permission for that kind of suit. What Judge Pauley in this case, and what Judge Leon in the case in the DC Circuit (Klayman), ask themselves is has Congress provided for certain types of challenges to actions under this statute, and if so, what did Congress provide?

And when they look at the PATRIOT Act, they see that Congress collected its permissions for suits under one section (Section 223). That same section also conspicuously does not provide any permissions for suits in connection with Section 215 (the business records provision, under which authority telecommunications providers are ordered to give records to the government). Nowhere is any permission provided for suits in connection with Section 215. In addition, other features of the law render certain suits impossible by preventing certain parties from ever having knowledge of how they might be affected by the law.

Judge Pauley’s point with respect to the role of Snowden in this is that it’s a stretch to believe that, as part of this constructed framework, Congress could have intended that such suits would be allowed only when someone broke the law and publicized sealed court orders. This point is just the icing on the cake (the cake being the permissions granted, and not granted, in Section 223).

All of this, as Bloix and K. Williams point out, is confined to the reasoning about the statutory challenge. None of it applies to the constitutional challenge.

As to the secret nature of the FISA courts decisions on this, there’s nothing particularly undemocratic about it. Judicially authorized warrants and judicially upheld grand jury subpoenas are not uncommonly confidential, and this fact is a longstanding feature of democratically decided law. Democracies enable executive agencies and judicial courts to make confidential applications of the law in various instances, and often for good reasons.

Pauley’s opinion is very well reasoned legally, and is an excellent exposition and application of the relevant law. Barring the US Supreme Court eventually granting cert. as the case moves through the 2nd Circuit and then overturning Smith v. Maryland (very unlikely), this should remain, for the most part, an accurate statement of US law on the subject for some time.

33

Alex K. 12.30.13 at 2:11 am

” Barring the US Supreme Court eventually granting cert. as the case moves through the 2nd Circuit and then overturning Smith v. Maryland (very unlikely), this should remain, for the most part, an accurate statement of US law on the subject for some time.”

Please explain why Judge Leon’s conclusion, that NSA metadata collection is unconstitutional, is not well reasoned legally and not an excellent application of the relevant law.

34

Alex K. 12.30.13 at 2:23 am

“I think the missing piece here is sovereign immunity, which frankly is somewhat authoritarian, but is hardly Judge Pauley’s invention.”

It’s quite a side point whether it’s the congress or the judges that are authoritarian. For those that do not care that much about legalistic competitive sports the end result is the same: it is possible (in this case, it is actual) that an extremely broad interpretation of an important law by a governmental body can not be challenged except by another government branch.

This should be worrying for anyone who does not trust the government to exercise its powers wisely.

35

Andrew F. 12.30.13 at 12:16 pm

Alex K. – Judge Leon’s decision reasons that:

because we use our phones for so many different things today than we did when Smith was decided,
because so many more people use phones than when Smith was decided,
because phones are used today as cameras, as “lighters” at concerts (these are Judge Leon’s examples),
because so many more calls are made from more people than were in the time of Smith,
Smith is not applicable to the question of whether the phone metadata program violates the 4th Amendment.

That’s a long string of true statements that do not logically lead to his conclusion, due to the nature of the rationale given in Smith.

Judge Leon then decides that, since we use our phones so frequently, and since metadata can be quite revealing, we likely really do have a reasonable expectation of privacy with respect to phone metadata records.

It’s shoddy legal reasoning, even if you happen to like his conclusion. The problem is that Smith is the leading case here (and it receives less attention in Judge Leon’s opinion than cell subscriber growth statistics and speculations from The New Yorker blogs). In Smith, the US Supreme Court held that one does not have a reasonable expectation of privacy as to records of calls because such information is voluntarily given to phone companies who then store it in their own business records. That reasoning does not depend upon how many people in the United States use telephones; nor does it depend on how often a person uses his phone; nor does it depend on whether you’re using your phone as a camera or a lighter at a concert. The key to Smith lies in the disclosure of information to a third party company, which is what removes the reasonable expectation of privacy.

So that more people use telephones or we use them more often has nothing to do with Smith‘s reasoning or applicability. Judge Leon’s lengthy, gee whiz observations on the number of cell phones being used or the number of minutes being used or how we can take pictures with our phones don’t matter, and indeed he never really explains why these observations are relevant in applying Smith.

Now, one may think that Judge Leon’s observations could form part of a policy argument for opposing the telephone metadata collection program. That’s fine. And with some better research and some serious redrafting, Judge Leon might provide a good argument for why Smith should be overruled. But he’s a district court judge, and is bound to follow the precedent of higher courts; so he vaguely says that Smith doesn’t apply – he can’t overrule it – but then provides reasons suggesting (incompletely) that it should be overruled.

Really, Judge Leon’s opinion is a judicial editorial addressed to the DC Circuit (and any other Court of Appeals that might be considering the question in the near-ish future). It might win him some plaudits from those who agree with his general view on privacy; it might garner him some allies if he wishes to become an appellate judge; but I suspect that it will be greeted with some irritation by the higher courts, and, for reasons already explained, it is a very poor application of current law.

36

JSH 12.30.13 at 12:42 pm

“It’s shoddy legal reasoning, even if you happen to like his conclusion. The problem is that Smith is the leading case here (and it receives less attention in Judge Leon’s opinion than cell subscriber growth statistics and speculations from The New Yorker blogs). In Smith, the US Supreme Court held that one does not have a reasonable expectation of privacy as to records of calls because such information is voluntarily given to phone companies who then store it in their own business records. That reasoning does not depend upon how many people in the United States use telephones; nor does it depend on how often a person uses his phone; nor does it depend on whether you’re using your phone as a camera or a lighter at a concert. The key to Smith lies in the disclosure of information to a third party company, which is what removes the reasonable expectation of privacy.”

The fact that information is shared with a third party does not entail that there’s no reasonable expectation of privacy. What Leon suggests is that changing background facts have changed the reasonable expectations of individuals: now that phones are far more ubiquitous, we have a reasonable expectation of privacy about our use of them. This does not seem to be shoddy reasoning; you might disagree, but it’s not as if he’s affirmed the consequent.

37

Andrew F. 12.30.13 at 3:00 pm

JSH, I’ll just quote from Smith – the opinion could not be clearer (for which reason Judge Leon spends as little time discussing the actual opinion as possible), and then I’ll shut up for a bit:

This claim must be rejected. … All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. … Electronic equipment is used not only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a telephone which is subject to a special rate structure.” Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly employed “to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling.” … Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret. Smith v. Maryland, 442 U.S. 735, 742-43 (1979).

Expectations as to whether Verizon, AT&T, et al, collect the numbers you call, the numbers that call you, and the date and duration of those calls, have not changed. That is the information at issue.

More importantly, quoting again from Smith:

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U. S., at 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Smith, 442 U.S. at 743-44.

That has been the consistent law of the land on the question of reasonable expectation of privacy, and has been applied in a wide variety of contexts. Judge Leon’s discursive explorations of the use of cell phones are simply irrelevant to Smith‘s holding and to its application to the facts of the metadata program.

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William Timberman 12.30.13 at 3:15 pm

In this case, settled law clearly cries out for a bit of unsettling, and Andrew F., as usual, muddies the waters, defends the indefensible, and employs his mouth where an alert pair of eyes would be more useful. The good news is that no one is fooled except Andrew F. The bad news is that but for his pontifications, the comments thread could be a lot shorter.

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Alex K. 12.30.13 at 5:21 pm

Andrew F.,

Judge Leon did not mention patterns of cellphone use because he is senile and and wants to brag that he knows what happens today at concerts. He is mentioning current uses of cellphones as part of a well reasoned argument.

Specifically, he draws a parallel between Supreme Court opinions in Jones vs US which dismissed US vs Knotts as a precedent; and his dismissal of Smith as a precedent in the NSA Bulk Metadata case.

In Jones vs. US (Jones was a drug dealer who was caught when the government used GPS tracking for 28 days on his car) five justices agreed that Jones did have a “reasonable expectation of privacy” hence that GPS tracking violated the Fourth Amendment. In so agreeing, the justices dismissed US vs Knotts (which claimed that a person does not have a reasonable expectation of privacy of the movements of his automobile) as a precedent.

The dismissal of US vs Knotts as a precedent was justified precisely by changes in technology and the period of the surveillance; changes that modify what a reasonable expectation of privacy means. For instance, in Jones vs. US, Sotomayor claims that the “substantial quantum of intimate information” gathered by lengthy GPS tracking “reflects a wealth of detail about her familial, political, professional, religious and sexual associations.” This would not have been true about surveillance of the type and duration used in US vs. Knotts. Hence the GPS tracking in Jones violates reasonable expectation of privacy, while the surveillance in Knotts does not.

Similarly, given today’s pattern of phone use and given the government’s use of the metadata, the reasonable expectation of privacy is violated by NSA Bulk Metadata collection, even if that expectation was not violated in Smith.

Now, I’m not a lawyer, but this does not strike me a particularly poor reasoning — unless you are also willing to claim that Sotomayor, Alito an others are guilty of poor reasoning too.

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Ronan(rf) 12.30.13 at 6:34 pm

I think this is interesting, the way SNA is working itself into policing practices in the US

http://www.fastcoexist.com/3022154/using-social-networks-to-track-and-predict-gun-violence

A lot of Andrew Papachristos’ research (who’s mentioned here) looks interesting. But this isnt assuming colllective guilt, more guilt due to your place in certain social groups.
Something else I heard about recently was the concept of parallel construction, where counterinsurgency/security tactics used internationally begin to get used at home. Afaict certain security systems used in the UK (such as reliance on CCTV) are outgrowths of security policy during the Troubles. That all seems quite problematic, especially if international security threats (int networks of terrorists etc) become to resemble domestic security threats (drug gangs etc)
Does anyone know anything about these aspects of the controversy? Or have further reading recs?

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Consumatopia 12.30.13 at 6:40 pm

Expectations as to whether Verizon, AT&T, et al, collect the numbers you call, the numbers that call you, and the date and duration of those calls, have not changed. That is the information at issue.

Leon’s opinion addresses exactly this. Check the paragraph starting “Admittedly, what metadata is has not changed over time. As in Smith, the types of information at issue in this case are relatively limited: phone numbers dialed, date, time, and the like. But the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what the information can tell the Government about people’s lives.” (emphasis in original).

Basically, Leon claims that NSA bulk metadata collection is significantly more far-reaching than the Smith pen registers or anything that would have been technically feasible at the time, and people’s expectations regarding (the same kind of) metadata have changed. Leon claims that the quantity of surveillance in question distinguishes it from that described in Smith in the same way that quantity distinguishes U.S. v. Jones from U.S. v. Knotts.

Probably most relevant to the portion of Smith you just quoted is this

… the relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. … The Supreme Court itself has long-recognized a meaningful difference between cases in which a third party collects information and then turns it over to law enforcement, see, e.g., Smith, 442 U.S. 735; United States v. Miller, 425 U.S. 435 (1976), and cases in which the government and the third party create a formalized policy under which the service provider collects information for law enforcement purposes, see Ferguson v. Charleston, 532 U.S. 67 (2001), with the latter raising Fourth Amendment concerns. In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, see Smith, 442 U.S. at 737, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. Cf. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (“Plainly there is a vast difference between the public records that might be found after a diligent search of [various third parties' records] and a computerized summary located in a single clearinghouse of information.”).47

47. When an individual makes his property accessible to third parties, he may still retain some expectation of privacy based on his understanding of how third parties typically handle that property. See Bond v. United States, 529 U.S. 334, 338-39 (2000) (“[A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment.”).

Judge Leon might be stretching those precedents a bit. The underlying problem is that the third party doctrine is obviously wrong but also established precedent, but it does Leon no good to just admit that.

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Consumatopia 12.30.13 at 6:44 pm

Ugh, how could I possibly have thought that I’d get that many blockquotes right?

“Leon’s opinion…” should have ended the blockquote of the first paragraph, not started a new one. So just shift everything after that two positions to the left…ugh, nevermind, forget it, sorry.

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Mao Cheng Ji 12.30.13 at 6:54 pm

“When an individual makes his property accessible to third parties, he may still retain some expectation of privacy based on his understanding of how third parties typically handle that property.”

In that case, the NSA metadata collection used to be a violation of the fourth amendment, but it’s not anymore, since the “expectation of privacy based on his understanding of how third parties typically handle that property” has now caught up with reality.

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roy belmont 12.30.13 at 8:14 pm

Why is no one talking about Hamlet? Which is about spying, pretending, not knowing and needing to know at the same time, poison, and lying? Acquiescence to power, and self-deception. And spying.
Also indecision a little, what to do, what to do.
Why are lawyers more central than Shakespeare to this moment’s crises?

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Andrew F. 12.31.13 at 1:12 pm

Consum, Alex -

Well, wait a second. You’re both arguing that Klayman/Clapper:Smith as Jones:Knotts, and that this reasoning isn’t weak.

I agree that this analogy animates Judge Leon’s decision, but it doesn’t save the reasoning in his opinion. Let’s be clear first about how Jones was actually decided.

In Jones, the government entered Jones’s property to surreptitiously install a GPS device on a vehicle. Information gathered from that device was then used to investigate, prosecute, and convict Jones.

Five of the justices (Scalia, Roberts, Thomas, Kennedy, Sotomayor) agreed that the physical trespass alone qualified the GPS installation as a search under the 4th Amendment.

Justice Sotomayor, one of the majority, wrote a concurring opinion, in which she argued that – aside from the physical trespass – the extent to which the government can avail itself of electronic tracking devices to cheaply track the movements of many people for long periods of time may mean that the Court should, at some point, consider adjusting its 4th Amendment jurisprudence for that new capability.

However, and this is important, she explicitly states that such a question need not be reached in Jones, and in fact never answered the questions she raised. For Sotomayor, the physical trespass is enough to decide the issue. The other questions are all dicta.

Now, just a quick summary of Knotts: Knotts is a prior case in which a tracking device was concealed in a container, which was then given to an individual being investigated. Data derived from that device was used to investigate and prosecute that individual. There, the Court held that since the individual’s movements on public streets are, by nature, disclosed to the public, the individual cannot have a reasonable expectation of privacy concerning them. But the Court also reserved the constitutional question of whether such a practice would be a search within the meaning of the 4th Amendment if practiced on a widespread scale.

The majority in Jones avoided using Knotts because in Jones there was a physical trespass, and so the majority never had to consider whether Jones had a reasonable expectation of privacy that was invaded.

So actual rationale and holding in Jones doesn’t provide any support for Judge Leon’s opinion that the third party disclosure principle is not applicable to telephone metadata. The Court’s opinion in Jones never reached such a question.

There is a minority opinion in Jones, by Justice Alito, in which three other justices joined (Kagan, Breyer, Ginsburg). Alito, in a very well hedged opinion, argues that society has a reasonable expectation of privacy concerning their public movements in that, when the government is not investigating a sufficiently serious crime (I have no idea what that is – neither does Alito), the government will not expend the enormous resources traditionally necessary to track their public movements on a continuous basis over a long period of time. So, because the crime being investigated was not sufficiently serious (why not, I don’t know), and because the tracking occurred continuously over a long period of time – beyond that which would have been accomplished by traditional methods – Jones’s reasonable expectation of privacy is broken by the use of the GPS device. Of course, Alito also speculates that given how much data consumers now habitually give over to companies, including data to track them, it may be that the public ends up reducing its expectation of privacy.

Okay. Alito’s opinion, remember, isn’t controlling. Sotomayor never actually reached the questions she raised, and in fact she joins an opinion in which Scalia is highly critical of Alito’s reasoning. And even if Alito’s opinion were the majority opinion, it provides questionable support at best for Leon’s reasoning. Remember that Alito’s point is that over a long period of time, on a continuous basis, one’s movements are ordinarily NOT publicly disclosed because one reasonably expects no one to be tracking them without great cause. However, that doesn’t apply to phone records; they are ALWAYS disclosed, on a continual basis and over very long periods of time, to phone companies.

In the final analysis, Judge Leon is a district court judge, whose job is to apply controlling precedent, not to ignore it by guessing that it might be later overruled. Looking at the caselaw that controls here, there’s just no support for Leon’s reasoning. At best he’s extrapolating from a mixture of dicta in a concurring opinion and the reasoning from a minority concurring opinion – and even then, neither provide particularly strong support.

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Consumatopia 12.31.13 at 2:12 pm

Actually, no, I’m not arguing over how strong or weak the reasoning is. (Formatting difficulties may have obscured that). You said that Judge Leon had ignored things about Smith that he explicitly discussed. If there is a weakness in Leon’s reasoning on Klayman (I haven’t spent the time to decide whether there actually is or not), it’s not that he isn’t paying enough attention to Smith, it’s that he’s reading more into other precedents than is actually there.

re:Jones, what Leon finds particularly significant in Alito and Sotomayor’s concurrences is that they both claim that the reasoning they employ is compatible with Knotts. In Leon’s view, reasoning similar to that of the five concurring justices can show that Smith doesn’t have to be overturned to reach the conclusion he wants in Klayman. So he’s not depending on concurrences in Jones as a controlling precedent, but he is following their lead in interpreting existing precedent.

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Mike Fennell 12.31.13 at 5:53 pm

Martin Bento @ 26
Don’t we already agree that observation itself — hell even the attempt at it — is a harm? For instance, isn’t a Peeping Tom committing a crime whether the person inside knows he’s peeping on her or not? As I understand it, if a cop happens by and sees him in the bushes he can arrest him on that basis alone – no complaint from the victim required. What’s more it doesn’t matter if the window shade is open or closed, or who is inside; there is no mitigating the act by “inviting” it. Doesn’t this (admittedly misdemeanor) example suggest that there is an absolute right to privacy ?

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Martin Bento 01.01.14 at 6:15 am

random (is that how you wish to be addressed?),

I think I have a broader conception of privacy than that. To me, it concerns information about me I may want to keep secret for whatever reason. Suppose I have a taste for Barry Manilow or pit bull fights. This might be unacceptable in my social group, so I keep it quiet. This, I think, is one of the important functions of privacy. It makes what is unacceptable in a society – including a sub-society within the broader one – possible with less consequence. Society has often benefited in the long run from people pursuing tastes and ideas not considered acceptable at the time, and certainly the individuals concerned have. But this is a “bourgeois” individualist notion. It has its enemies on the left. And “unacceptable (to someone) ideas” is an umbrella that covers both Manilow appreciation and terrorism, which, snark aside, don’t really belong together. I’m not suggesting the government is going to take an interest in musical taste – though Pussy Riot, the Plastic People, Nixon’s project of expelling John Lennon, it does happen – but privacy is not intrinsically limited to some specific domain like sex or politics. Like I say, we don’t have a theory of this that I know of, and what we do have is individualist and therefore not universally beloved on the left.

Mike,

Yes, I think we have some consensus on privacy in fact, but we don’t have an articulated politics around it, and it is largely limited to the sexual realm. The idea that a woman or man is harmed by someone observing them without their knowledge and being sexually stimulated is broadly accepted, but limited in its application. And with the matters we are dealing with now, sexual stimulation is always possible, and almost certainly sometimes present, but not necessarily distinguishable from other situations, so it cannot be the crux. For example, can it be OK for the TSA to see through our clothes, but not to be sexually stimulated by the sight? How could this possibly be enforced? Any attempt to enforce it brings us into direct criminalization of mental states – in this case, not even necessarily voluntary ones – which may become technically possible, but is a cure much worse, and much worse for privacy, than the disease. The attitude of the observer cannot be the crux. We need a politics of this because it is in the modern world a political fight, not just a question of suppressing individual bad behavior.

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