NSA Bulk Phone Records Collection Cases Edge Toward Supreme Court
LOS ANGELES — At first glance, a San Diego cab driver serving 18 years in prison for conspiring to provide material support to a terrorist group has little in common with members of the First Unitarian Church of Los Angeles.
But both Basaaly Moalin and church members claim the National Security Agency illegally intruded on their electronic communications as part of its bulk telephone metadata collection program that was exposed last year by whistleblower Edward Snowden.
In February 2013, a San Diego federal jury convicted Moalin and three other immigrants from Somalia of sending money back to their homeland to fund the al-Shabab group. After the Guardian newspaper published Snowden’s revelations in June, Moalin asked for a new trial, saying the NSA’s surveillance violated his First and Fourth Amendment rights.
In Moalin’s case, his lawyers argued, “the worst-fears nightmare electronic surveillance/metadata collection has occurred.”
Snowden’s revelations have also inspired a wave of civil rights suits, including one in which First Unitarian is the lead plaintiff. Like Moalin’s case, these suits raise the issue of whether the individual’s right to privacy trumps the NSA’s counterterrorism efforts.
“Americans do not expect that the government will track every phone call they make every single day, and they should not have to,” the American Civil Liberties Union said in a case that is now before the U.S. Second Circuit Court of Appeals.
In a landmark decision known as Smith v. Maryland, the Supreme Court held in 1979 that the warrantless installation of a primitive tracking device on a phone line by police investigating a criminal suspect was constitutional under the Fourth Amendment.
Civil rights advocates, and at least one federal judge, believe that this ruling no longer applies in the digital age.
“[T]he court in Smith was not confronted with the NSA’s Bulk Telephony Metadata Program,” U.S. District Judge Richard J. Leon said in December. “Nor could the court in 1979 have ever imagined how the citizens of 2013 would interact with their phones.”
Brett Max Kaufman, a fellow with the ACLU’s National Security Project, told MintPress News that “whether the Supreme Court will take any case is a difficult thing to predict — especially so in this context, where any forthcoming legislative action will have an uncertain effect on the [NSA] cases.”
Numerous bills affecting the NSA’s operations are currently before Congress, including the Fourth Amendment Protection Act and the USA Freedom Act.
But with federal judges already disagreeing over whether the Smith v. Maryland precedent applies to the “dragnet” collection of electronic information, it could be only a matter of time before the Supreme Court considers at least one of the challenges to the NSA’s phone records snooping.
Here are some of the possible candidates for Supreme Court review:
ACLU v. Clapper
(Complaint filed June 11, 2013, New York City)
Having been fully briefed to the Second Circuit, the case is further along than any other. “Given where each case currently stands, the ACLU’s challenge seems most likely to reach the Supreme Court first,” Kaufman forecast.
The ACLU filed the suit in its capacity as a Verizon Business Network Services subscriber whose communications have been monitored by the government and whose “telephony metadata likely remains in government databases.” According to the Department of Justice, the NSA stores information collected under the program for five years.
“The practice is akin to snatching every American’s address book — with annotations detailing whom we spoke to, when we talked, for how long, and from where,” the ACLU said in its complaint.
On Dec. 27, however, U.S. District Judge William H. Pauley III granted the government’s motion to dismiss the case, suggesting that the 9/11 attacks might never have happened if the phone records program had been in effect at the time.
“[C]onventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda,” he wrote, and the program “allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice.”
In finding no Fourth Amendment violation, Pauley cited the Smith v. Maryland court’s “bedrock” holding that “an individual has no legitimate expectation of privacy in information provided to third parties.” Because subscribers knowingly give information to phone companies when they dial a number, “a person has no subjective expectation of privacy in telephone metadata.”
The ACLU argues in its appeal of that decision, “Nothing in Smith remotely suggests that the Constitution is blind to the kind of mass surveillance at issue here.”
The Smith v. Maryland court, the appeal holds, did not address “whether plaintiffs — who are not criminal suspects — have a reasonable expectation of privacy in a catalogue of the phone numbers, date, time, and duration of every call they have placed or received over the last seven years and for the indefinite future.”
Klayman v. Obama
(Complaint filed June 11, 2013, Washington, D.C.)
The plaintiffs in this class action include conservative public interest attorney and Judicial Watch founder Larry Klayman and the parents of Michael Strange, a Navy SEAL who was killed while serving in Afghanistan.
The government has accessed the Stranges’ phone records, the suit claims, because they “have been vocal about their criticism of President Obama … regarding the circumstances surrounding the shoot down of their son’s helicopter.”
The suit’s allegations are similar to those in ACLU v. Clapper, but in a Dec. 16 decision, Judge Leon took a very different view of the Fourth Amendment issue.
Granting the plaintiffs’ request for an injunction barring the government from collecting any metadata from their phone accounts, he said the question in Smith v. Maryland — whether the installation of a pen register constitutes a “search” within the meaning of the Fourth Amendment — “is a far cry from the issue in this case.”
“When do present-day circumstances … become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply?” Leon asked in his order. “The answer, unfortunately for the Government, is now.”
Leon said he could not possibly “navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones,” but stayed his ruling pending the government’s appeal.
First Unitarian Church of Los Angeles v. National Security Agency
(Complaint filed July 16, 2013, San Francisco)
First Unitarian, which has a tradition of social activism, brought this suit along with 18 other advocacy groups, including the Council on American Islamic Relations, Greenpeace and People for the American Way.
“This lawsuit challenges an illegal and unconstitutional program of dragnet electronic surveillance,” the complaint says.
The plaintiffs’ attorneys with the Electronic Frontier Foundation are all too familiar with the frustrations of suing over electronic surveillance. In 2006, they alleged AT&T had violated privacy law by collaborating with the NSA to wiretap Americans’ communications. A federal judge rebuffed the government’s attempt to dismiss the suit on the grounds of the state secrets privilege but, with the case pending before the Ninth Circuit Court of Appeals, Congress in 2008 granted the government and AT&T retroactive immunity from liability under the Foreign Intelligence Surveillance Act’s Amendments Act of 2008.
After a six-year legal battle, the Supreme Court declined in October 2012 to hear the case of Hepting v. AT&T.
The First Unitarian case is similar to Jewel v. NSA, in which the Electronic Frontiers Foundation represents a group of AT&T customers who alleged in 2008 that the phone company’s dragnet surveillance on behalf of the government is illegal. “They kept us tied up [in the Jewel case] with secrecy claims until last summer,” Cindy Cohn, the foundation’s legal director, told MintPress.
A San Francisco judge has yet to rule on the government’s motion to dismiss First Unitarian’s claims. “Smith is fatal to plaintiffs’ claim that the collection of their telephony metadata violates the Fourth Amendment,” the motion says.
U.S. v. Moalin
(New trial motion filed Sept. 5, 2013, San Diego)
Moalin’s attorneys are trying to reopen his case based on Edward Snowden’s revelations, which came after his conviction.
The NSA’s collection, storage and interception of Moalin’s phone contacts in 2007 were “instrumental in the investigation in this case,” his motion for a new trial says, noting that “U.S. government officials have cited this case as the only U.S. criminal case in which a particular NSA program produced information vital to the prosecution.”
The case confirms “the worst-fears nightmare” of privacy activists, according to Moalin’s lawyers, because he was subject to an initial investigation that the government acknowledges “did not yield evidence of ‘links to terrorism,’ yet information collected about his electronic communications, i.e., his telephone number, was nevertheless stored in a massive database and provided by NSA to the FBI four years later for solely retrospective use.”
In November, U.S. District Judge Jeffrey T. Miller denied the motion, finding that because “individuals voluntarily convey numerical information to the telephone company to complete a telephone call, one cannot possess a reasonable expectation of privacy in the telephone number dialed (as opposed to the content of the conversation).”
“While technology continues to advance through the implementation of new devices and methods, the legal analysis remains fairly constant,” Miller said in declining to depart from the Smith v. Maryland precedent.
Moalin has appealed the decision to the Ninth Circuit.
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