UPDATE: Today [Dec. 27] another U.S. District Court's decision (ACLU v. Clapper) is being described as contrary to the District Court decision that prompted this original blog essay (Klayman v. Obama). (See the bottom of this blog essay for citations and links.)
To characterize these two opinions as being opposite, or in conflict, with regard to the Fourth Amendment and the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1979)(discussed in the original blog essay, below), is in my opinion to fail to grasp the significance of the sub-head on that blog essay ("When Difference of Degree Becomes Difference of Kind"). (On the other hand, if their respective U.S. Court of Appeals both affirm, or both reverse, these lower court opinions, there will then be a sufficient "conflict in the circuits" to give the Supreme Court that justification for taking the cases, if it wishes, given the conflict in their ultimate outcomes.)
Both judges agree that what the NSA is doing implicates the Fourth Amendment. They agree on the wording of the Fourth Amendment. They both agree that they need to deal with the Smith case. They both agree regarding what the facts were in Smith. They both agree as to the "holding" of Smith. They both agree that it is the Supreme Court, not U.S. District Court judges, that should be deciding whether to overrule Supreme Court opinions or not (Judge Pauley expressly; Judge Leon we can assume). Where they disagree is whether the facts and holding of Smith control the outcome of the facts before those courts in Klayman (Judge Leon) and Clapper (Judge Pauley).
Judge Pauley's sketchy and conclusory Fourth Amendment discussion is primarily limited to portions of pp. 42-44 in his 54-page opinion. He argues, in effect, that "telephone meta data (1979)" is the same as "telephone meta data (2013)," 34 years and a technological and surveillance revolution later.
Judge Leon noted the Supreme Court's struggling with the impact of technology on Fourth Amendment rights. As I described Judge Leon's analysis, below, "[in] U.S. v. Jones (2012), . . . the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology, for a shorter time, was found acceptable)."
"Aha," Judge Pauley seems to have said to himself with regard to Jones, before writing in response to Judge Leon: "But the Supreme Court did not overrule Smith." To which he adds, quoting from another Supreme Court decision, "[T]he Court of Appeals should . . . leave[e] to th[e Supreme] Court the prerogative of overruling its own decisions."
Of course, both of these assertions are irrelevant if no court is engaged in "overruling" anything.
What Judge Pauley fails to note is (1) as I asked and then answered, below, "Has Judge Leon 'overruled' Smith? Not really. He has neither the power nor the need to do so. He is simply saying 'the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search . . ..,'" and (2) that the Supreme Court may have been using the same analysis in U.S. v. Jones as Judge Leon was using in Klayman. That is, the Court's failure to overrule Smith in Jones could mean either of two things: (a) it could have, as Judge Pauley believes, failed to overrule Smith because it believed it was both still good law and was controlling of facts such as those before the District Courts in Klayman and Clapper, or (b) it could have applied Judge Leon's reasoning, and failed to overrule Smith because there was no valid reason to apply Smith's 1979 "apples" to Jones's 2013 "oranges." The holding of Smith, limited as it must be to its facts, is simply irrelevant in addressing the vastly different facts before the courts in Klayman and Clapper. I believe that (b) is the far more likely explanation.
Much appellate court practice, and the writing of appellate court opinions, turns on "distinguishing" cases -- as first year law students soon discover. Both Smith and Knotts can remain good law -- in situations involving no more than the limited facts they presented -- without applying them to cases involving the very different facts in Klayman and Clapper. That does not mean that they have been "overruled." They have simply been limited to their facts; they have been "distinguished."
It may very well be that Judge Pauley also could have found Smith inapplicable to the facts in Clapper and still reached the same conclusion. But he did not.
Here's what some others are saying:
New York Times, Dec. 28, 2013
"Has the . . . mass collection of . . . phone records [helped] prevent terrorist attacks?
No, according to . . . a panel of legal and intelligence experts . . ..
Judge William Pauley III . . . came to the opposite conclusion . . . in a deeply troubling decision . . ..
Judge Pauley . . . disregards the concerns central to the presidential panel’s report and [Judge Leon's] ruling . . ..
Judge Leon found the Smith decision . . . inapplicable to a daily, indiscriminate sweep of hundreds of millions of phone records. Judge Pauley . . . said its logic still applied.
Judge Pauley’s opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law . . . that shows an alarming lack of skepticism . . . in light of the testimony of James Clapper Jr., . . . who falsely [said] the N.S.A. was not collecting any [data on] millions of Americans.
It is also incorrect to say, as Judge Pauley does, that there is “no evidence” that the government has used the phone data for anything other than terrorism investigations. An inspector general . . . revealed at least a dozen instances in which government employees used the databases for personal purposes."
"[T]his decision . . . misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections."
-- Jameel Jaffer, an ACLU lawyer (quoted here).
What follows, below, is what I wrote Dec. 17 regarding Judge Leon's Klayman decison:
Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and security/spy agency has said of our NSA, "'You know, for us, this would have been a dream come true.' . . . [H]is department was limited to tapping 40 phones at a time, he recalled. . . . He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more. 'So much information, on so many people,' he said." Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.Takeaway: Thirty-four years ago the Supreme Court said it was OK for law enforcement to get one person's phone records over a short time without using a search warrant (Smith v. Maryland); Federal Judge Leon rules that times and technology have changed enough that Smith no longer justifies NSA's sweeping, constant collection of all Americans' phone records.
He makes an important point: "a difference to be a difference has to make a difference." A difference of degree may be a difference that makes no difference. A difference of kind does make a difference. . . .
When the Stasi's wiretapping ability went from one wiretap to 40, that was a difference. It made a difference. But not that much difference. You clandestinely listen in on one person's conversations, you listen in on 40. But when the NSA goes from a constitutional presumption of one search warrant at a time, for one person at a time, with probable cause, approved by a reviewing judge, to a general search warrant that entitles them to spy on every American simultaneously, just because they have the technology that makes it possible, that is a difference that makes an enormous difference.
-- "Surveillance: Differences of Degree and of Kind," July 3, 2013
Since The Guardian broke the Snowden revelations earlier this year, there have been a number of essays in this blog regarding the issues. [For links to the opinion, related stories, and prior blog essays, see the bottom of this blog essay.]
Let's start withe the language of the Fourth Amendment: "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." U.S. Const. amend. IV. It was a response, in part, to the British use of so-called "general search warrants."
[G]eneral search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause." . . ."The Future of Surveillance and How to Stop It," August 4, 2013.
[T]he NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th -– those British “general search warrants.”
The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for. And so it is that, 224 years later, an ever-increasing number of Americans -– now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.
A prohibition on "unreasonable searches" requires not one, but two, findings: (1) that the search was unreasonable, but also (2) that there was, in fact, a "search." [Moreover, the person complaining must have had both (a) an "expectation of privacy," and (b) one that most people would consider to have been "reasonable."]"Surveillance: Differences of Degree and of Kind," July 3, 2013.
For example, . . . Most people would not expect that which they have left in plain sight from the street would be legally protected from being seen by passersby. And if they did have such an expectation, most people would not consider that expectation to have been reasonable.
So far, OK. But we're left with a couple of problems. (1) In a world of ubiquitous surveillance video cameras, mail covers, collection of all phone call meta-data, and comparable intrusions on privacy does a "reasonable expectation of privacy" provide us any protection? (2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.
This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve the information from them (information that the government might not have been able to acquire constitutionally without their involvement).
It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age.  If you hold information you consider to be private, and you turn it over to a newspaper reporter (who makes no promise of protecting your privacy), you can't really complain when it ends up in the local paper.  On the other hand, we do protect the privacy of information you hand over to your doctor, lawyer, or cleric.  [T]here needs to be a third category these days. The information you necessarily have to provide a credit card company, for example, may not be entitled to the protection accorded information you give your doctor. But neither, in my opinion, should it be accorded no more protection than what you hand over to a newspaper reporter, neighbor, or colleague. I believe there is, in fact, a reasonableness in demanding a level of trust in our relationships, business or otherwise, that are necessities in our economy -- such as banking and phones. We need these services. We are not gratuitously handing them private information; it is a necessity that we do so in order for them to provide the service. It is given to them for a specific and limited purpose.
The Supreme Court needs to rethink the Fourth Amendment's protection of our privacy in a post-cyber world. The mere fact that today's technology means that no American can have a "reasonable expectation of privacy" anywhere, at any time, requires that standard -- and its deadly presumption regarding records shared with third parties -- be discarded."Law's Losing Race With Technology," June 7, 2013.
It's always reassuring to have one's instincts and intuition proved correct. As expose after expose hit the media earlier this year, it seemed to me that what the NSA was doing was a violation of both the letter and the spirit of the Fourth Amendment. It was troublesome that those charged with congressional oversight of the NSA, and those within the Obama Administration, of all people, thought -- or at least were saying -- that there was something wrong with the analysis that I, and others, had put forward.
Now there is at least one federal judge who thinks we got it right. There will be more federal judges -- and ultimately Supreme Court justices -- to express their own views on the issues. Undoubtedly, some will disagree with Judge Leon. But his analysis is a strong beginning.
His opinion runs 68 double-spaced pages with 71 substantive footnotes. Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013].
The plaintiffs sought a preliminary injunction prohibiting the NSA's collection of their phone metadata, relying on an Administrative Procedure Act (APA) remedy and the violation of their constitutional rights under the Fourth Amendment. The judge concludes they have the requisite "standing" to proceed as parties, that Congress has precluded his jurisdiction to address their APA claim, but that it has not precluded his jurisdiction to consider their constitutional claim, for which they have met the threshold requirements justifying a preliminary injunction, which he grants -- what non-lawyers would describe as in effect telling the NSA to "stop it." Judge Leon then adds, "However, in view 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." So, on the one hand, the plaintiffs won; on the other hand, they will not enjoy what they have won until the case has weaved its way through an appeal to the U.S. Court of Appeals for the D.C. Circuit -- and possibly the United States Supreme Court.
A discussion of these issues, and the FISA law and procedures, consume the first 43 pages of the opinion.
At that point, under the heading, "The Collection and Analysis of Telephony Metadata Constitutes a Search," is where the constitutional analysis begins -- one that accords with the earlier analysis of myself and others.
Here's some brief background. The Fourth Amendment prohibits the government from engaging in "unreasonable searches," thereby logically requiring two findings: (1) that there was a "search," and (2) that it was "unreasonable." The Supreme Court once gave the Fourth Amendment something of a anti-trespass interpretation, as it only keeps Americans "secure in their persons, houses, papers, and effects." (Tapping a defendant's phone, without a warrant, while at a distance from his property, was found not to violate the Fourth Amendment, Olmstead v. U.S. (1928).) By 1967, in Katz v. U.S., the Court held that "the Fourth Amendment protects people, not places" (in that instance a person inside a public phone booth). Justice Harlan, in concurring, wrote that "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'" (the source of the "reasonable expectation of privacy" standard).
The problem, in the context of NSA collection of every American's mobile phone metadata, is that the Court has also held that once someone knowingly provides information to a third party, they can no longer claim a "reasonable expectation of privacy" with regard to that information. This was found to apply to the information bank customers give to their banks regarding their checking accounts, U.S. v. Miller (1976), and more to the point in this Klayman case, the information telephone customers provide their carriers (what was then the monopolist AT&T) regarding the phone numbers they call, or from which they receive calls. Smith v. Maryland (1979).
As I wrote this past June, contrasting the 1970s with 2013,
Today the combination of electronics, digitization, the Internet, computers and telecommunication result in your sharing a large portion of your "papers" with others. Neither librarians nor store owners used to keep records of what books or other merchandise you examined. Today you share a record of every search with Google, a record of every product you examine on a company's Web site, your Kindle book library with Amazon, your music choices with iTunes. You've shared your email and text messages with some company, your photos with Picasa and Facebook, your videos with YouTube, your documents with Dropbox or some other firm that offers you real estate in their "cloud." In addition to your bank, "your" financial records are held by your credit card companies, airlines, rental car companies, hotels, and many local merchants."Law's Losing Race With Technology," June 7, 2013.
And that is essentially what Judge Leon had to say about the Smith case.
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 thirty-four years ago that a precedent like Smith simply does not apply?Klayman, pp. 43-45. He then responds to his own question, "The answer, unfortunately for the Government, is now." p. 45.
Has the Supreme Court ever made this kind of technological distinction before? He finds an example in U.S. v. Jones (2012), in which the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology for a shorter time was found acceptable). pp. 45-46.
Smith involved law enforcement using "pen register" and "trap and trace" techniques that collect limited data (numbers called, or calling), from one phone, during a limited time. What the NSA is doing involves more data (e.g., length of call, and possibly cell phone locations), from every telephone in America (and beyond), continuously (with daily updates), which it stores for five years, and can search in ways undreamed of when Smith was decided (1979).
Has Judge Leon "overruled" Smith? Not really. He has neither the power nor the need to do so. He is simply saying "the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. . . . I believe that . . . [it] almost certainly does violate a reasonable expectation of privacy. . . . Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send 'text messages,' they wrote letters and attached postage stamps." pp. 47, 52.
The tidal wave that's swept over us during this Century's technological tsunami has changed everything from family relations to foreign relations, from the way we do business to the way we teach school, from the nature of crime to the nature of war. The necessary response from lawyers and legislators has been lagging far behind what is needed. That is the context -- and the contrast -- in which Judge Leon's Klayman decision takes on its powerful and encouraging significance.
LINKS TO OPINION AND RELATED STORIES
Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013]. Charlie Savage, "Judge Questions Legality of N.S.A. Phone Records," New York Times, Dec. 17, 2013, p. A1. [Photo credit: Jim Lo Scalzo/European Pressphoto Agency/New York Times]
And see, Sheryl Gay Stolberg, "‘Passionate’ Judge Has Record of Wrestling With Thorny Issues, and the U.S. Government," New York Times, Dec. 17, 2013, p. A22; and Michael D. Shear, "Score One for the Legal Thorn in Government’s Side; Larry Klayman, Plaintiff in N.S.A. Case, Savors Victory," New York Times, Dec. 17, 2013.
Since The Guardian broke the Snowden revelations earlier this year, there have been a number of essays in this blog regarding the issues. See, e.g., "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.
[Cites/links for the Dec. 27/28 Update:] Today [Dec. 27] the U.S. District Court for the Southern District of N.Y.'s decision in ACLU v. Clapper, ___ F.Supp.3d ___ (S.D.N.Y. 2013), http://www.nysd.uscourts.gov/cases/show.php?db=special&id=364 [Judge William H. Pauley, Dec. 27, 2013], is being perceived as contrary to Klayman, the District Court decision that prompted this original blog essay. Adam Liptak and Michael S. Schmidt, "Judge Upholds N.S.A.’s Bulk Collection of Data on Calls," New York Times, Dec. 28, 2013, p. A1 ("the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data").
Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013]. Charlie Savage, "Judge Questions Legality of N.S.A. Phone Records," New York Times, Dec. 17, 2013, p. A1.