NSA case: Klayman v. Obama, 957 F. Supp. 2d 1, 59 Comm. Reg. (P & F) 825 (D. D.C. December 16, 2013), stay granted by Klayman v. Obama, 2013 U.S. Dist. LEXIS 177169 (D.D.C., Dec. 16, 2013), finding the third party doctrine inapplicable:
The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, “whether the installation and use of a pen register constitutes a ‘search’ within the meaning of the Fourth Amendment,” id. at 736—under the circumstances addressed and contemplated in that case—is a far cry from the issue in this case.
Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances—the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies— become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.
In United States v. Jones, 132 S.Ct. 945 (2012), five justices found that law enforcement’s use of a GPS device to track a vehicle’s movements for nearly a month violated Jones’s reasonable expectation of privacy. See id. at 955–56 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring). Significantly, the justices did so without questioning the validity of the Court’s earlier decision in United States v. Knotts, 460 U.S. 276 (1983), that use of a tracking beeper does not constitute a search because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” FN44 Id. at 281. Instead, they emphasized the many significant ways in which the short-range, short-term tracking device used in Knotts differed from the constant month-long surveillance achieved with the GPS device attached to Jones’s car. See Jones, 132 S.Ct. at 956 n.* (Sotomayor, J., concurring) (Knotts “does not foreclose the conclusion that GPS monitoring, in the absence of a physical intrusion, is a Fourth Amendment search”); id. at 964 (Alito, J., concurring) (“[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” (citation omitted)); see also United States v. Maynard, 615 F.3d 544, 557 (D.C.Cir.2010), aff’d sub nom. Jones, 132 S.Ct. 945 (“ Knotts held only that ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,’ not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end, as the Government would have it.” (citation omitted; quoting Knotts, 460 U.S. at 281)).FN45
FN44. In Jones, the Government relied heavily on Knotts (and Smith) as support for the argument that Jones had no expectation of privacy in his movements on the roads because he voluntarily disclosed them to the public. See generally Brief for Petitioner, United States v. Jones, 132 S.Ct. 945 (2012) (No. 10–1259), 2011 WL 3561881; Reply Brief for Petitioner, United States v. Jones, 132 S.Ct. 945 (2012) ( No. 10–1259), 2011 WL 5094951. Five justices found that argument unconvincing.
FN45. Lower courts, too, have recognized that the Supreme Court’s Fourth Amendment decisions cannot be read too broadly. See, e.g., United States v. Cuevas–Sanchez, 821 F.2d 248, 251 (5th Cir.1987) (“It does not follow that [ California v. Ciraolo, 476 U.S. 207 (1986), which held that police did not violate a reasonable expectation of privacy when they engaged in a warrantless aerial observation of marijuana plants growing on curtilage of a home using only the naked eye from a height of 1,000 feet,] authorizes any type of surveillance whatever just because one type of minimally-intrusive aerial observation is possible.”).
Just as the Court in Knotts did not address the kind of surveillance used to track Jones, the Court in Smith was not confronted with the NSA’s Bulk Telephony Metadata Program.FN46 Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones. For the many reasons discussed below, I am convinced that 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. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.
FN46. True, the Court in Knotts explicitly “reserved the question whether ‘different constitutional principles may be applicable’ to ‘dragnet-type law enforcement practices’ of the type that GPS tracking made possible” in Jones. Jones, 132 S.Ct. at 952 n.6 (quoting Knotts, 460 U.S. at 284); see also id. at 956, n.* (Sotomayor, J., concurring). That the Court in Smith did not explicitly hold open the question of whether an exponentially broader, high-tech, years-long bulk telephony metadata collection program would infringe on reasonable expectations of privacy does not mean that the Court’s holding necessarily extends so far as to answer that novel question. The Supreme Court itself has recognized that prior Fourth Amendment precedents and doctrines do not always control in cases involving unique factual circumstances created by evolving technology. See, e.g., Kyllo, 533 U.S. at 34 (“To withdraw protection of this minimum expectation [of privacy in the home] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.”). If this isn’t such a case, then what is?
First, the pen register in Smith was operational for only a matter of days between March 6, 1976 and March 19, 1976, and there is no indication from the Court’s opinion that it expected the Government to retain those limited phone records once the case was over. See 442 U.S. at 737. In his affidavit, Acting Assistant Director of the FBI Robert J. Holley himself noted that “[p]en-register and trap-and-trace (PR/TT) devices provide no historical contact information, only a record of contacts with the target occurring after the devices have been installed.” Holley Decl. ¶ 9. This short-term, forward-looking (as opposed to historical), and highly-limited data collection is what the Supreme Court was assessing in Smith. The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years ‘ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!
Second, 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. Compare Smith, 442 U.S. at 737 (“[T]he telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home.”), with Govt’s Opp’n at 8–9 (“Under this program, … certain telecommunications service providers [] produce to the NSA on a daily basis electronic copies of call detail records, or telephony metadata…. The FISC first authorized the program in May 2006, and since then has renewed the program thirty-five times ….“ (emphases added; citation and internal quotation marks omitted)). 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.”).FN47
FN47. 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.”).
Third, 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 after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. See Smith, 442 U.S. at 737. 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. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to “store such records and efficiently mine them for information years into the future.” Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring). And these technologies are “cheap in comparison to conventional surveillance techniques and, by design, proceed[ ] surreptitiously,” thereby “evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police … resources and community hostility.” Id.FN48
FN48. The unprecedented scope and technological sophistication of the NSA’s program distinguish it not only from the Smith pen register, but also from metadata collections performed as part of routine criminal investigations. To be clear, this opinion is focusing only on the program before me and not any other law enforcement practices. Like the concurring justices in Jones, I cannot “identify with precision the point at which” bulk metadata collection becomes a search, but there is a substantial likelihood that the line was crossed under the circumstances presented in this case. See Jones, 132 S.Ct. at 964 (Alito, J., concurring).
Finally, and most importantly, not only is the Government’s ability to collect, store, and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people’s telephony metadata is much greater, as well. According to the 1979 U.S. Census, in that year, 71,958,000 homes had telephones available, while 6,614,000 did not. U.S. Dep’t of Commerce & U.S. Dep’t of Hous. & Urban Dev., Annual Housing Survey: 1979, at 4 (1981) (Table A–1: Characteristics of the Housing Inventory: 1979 and 1970). In December 2012, there were a whopping 326,475,248 mobile subscriber connections in the United States, of which approximately 304 million were for phones and twenty-two million were for computers, tablets, and modems. FN49 CTIA The Wireless Ass’n (“CTIA”), Wireless Industry Survey Results – December 1985 to December 2012, at 2, 6 (2013) (“CTIA Survey Results ”); FN50 see also Sixteenth Report, In re Implementation of Section 6002(b) of Omnibus Budget Reconciliation Act, WT Dkt. No. 11–186, at 9 (F.C.C. Mar. 21, 2013) (”[A]t the end of 2011 there were 298.3 million subscribers to mobile telephone, or voice, service, up nearly 4.6 percent from 285.1 million at the end of 2010.”). The number of mobile subscribers in 2013 is more than 3,000 times greater than the 91,600 subscriber connections in 1984, Indus. Analysis D iv., Fed. Commc’ns Comm’n, Trends in Telephone Service 8 (1998), and more than triple the 97,035,925 subscribers in June 2000, CTI Survey Results, supra, at 4.FN51 It is now safe to assume that the vast majority of people reading this opinion have at least one cell phone within arm’s reach (in addition to other mobile devices). Joanna Brenner, Pew Internet: Mobile (Sept. 18, 2013) (91% of American adults have a cell phone, 95–97% of adults age 18 to 49); FN52 CTIA, Wireless Quick Facts (last visited Dec. 10, 2013) (“CTIA Quick Facts ”) (wireless penetration— the number of active wireless units divided by total U.S. and territorial population—was 102.2%) as of December 2012).FN53 In fact, some undoubtedly will be reading this opinion on their cellphones. Maeve Duggan, Cell Phone Activities 2013 (Sept. 19, 2013) (60% of cell phone owners use them to access internet).FN54 Cell phones have also morphed into multi-purpose devices. They are now maps and music players. Id. (49% of cell phone owners use their phones to get directions and 48% to listen to music). They are cameras. Keith L. Alexander, Camera phones become courthouse safety issue, Wash. Post, Apr. 22, 2013, at B01. They are even lighters that people hold up at rock concerts. Andy Rathbun, Cool 2 Know—Cellphone virtuosos, NEWSDAY, Apr. 20, 2005, at B02. They are ubiquitous as well. 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.FN55 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.FN56
FN49. The global total is 6.6 billion. Ericsson, Mobility Report on the Pulse of Networked Society, at 4 (Nov.2013), available at http:// www.ericsson.com/res/docs/2013/ericsson-mobility-report- november–2013.pdf.
FN50. http://files.ctia.org/pdf/CTIA_Survey_YE_20 12_Graphics-FINAL.pdf.
FN51. Mobile phones are rapidly replacing traditional landlines, with 38.2% of households going “wireless-only” in 2012. CTIA, Wireless Quick Facts, http://www.ctia.org/your-wirelesslife/how-wireless-works/wireless-quick-facts (last visited Dec. 10, 2013); see also Jeffrey Sparshott, More People Say Goodbye to Landlines, Wall St. J., Sept. 6, 2013, at A5.
FN52. http://pewinternet.org/Commentary/2012/February/Pew-Internet-Mobile.aspx.
FN53. http://www.ctia.org/your-wireless-life/how-wireless-works/wireless-quick-facts.
FN54. http://pewinternet.org/Reports/20 13/Cell-Activities/Main-Findings.aspx.
FN55. Mobile Telephone, Britannica.com, http://www.britannica.com /EBchecked/topic/1482373/mobile-telephone?anchor:=ref1079017 (last visited Dec. 13, 2013) (“[A] Japanese system was the first cellular system to be deployed, in 1979.”); Tom Farley, Mobile telephone history, Telektronikk, March/April 2005, at 28 (“An 88 cell system in the challenging cityscape of Tokyo began in December, 1979…. The first North American commercial system began in August, 1981 in Mexico City.”).
FN56. It is not clear from the pleadings whether “telephony metadata” and “comprehensive communications routing information” includes data relating to text messages. See supra note 16. If it does, then in 2012, the Government collected an additional six billion communications each day (69,635 each second). See Infographic— Americans sent and received more than 69,000 texts every second in 2012, CTIA.org (Nov. 25, 2013), http:// www.ctia.org/resource- library/facts–and–infographics/archive/americans–texts–2012–infographic.
. . .
I realize, of course, that such a holding might appear to conflict with other trial courts, see, e.g., United States v. Moalin, Crim. No. 10–4246, 2013 WL 6079518, at *5–8 (S.D.Cal. Nov. 18, 2013) (holding that bulk telephony metadata collection does not violate Fourth Amendment); United States v. Graham, 846 F.Supp.2d 384, 390–405 (D.Md.2012) (holding that defendants had no reasonable expectation of privacy in historical cell-site location information); United States v. Gordon, Crim. No. 09–153–02, 2012 WL 8499876, at *1–2 (D.D.C. Feb. 6, 2012) (same), and with longstanding doctrine that courts have applied in other contexts, see, e.g., Smith, 442 U.S. at 741–46 Miller, 425 U.S. at 443. Nevertheless, in reaching this decision, I find comfort in the statement in the Supreme Court’s recent majority opinion in Jones that “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” ’ 132 S.Ct. at 950 (2012) (quoting Kyllo, 533 U.S. at 34). Indeed, as the Supreme Court noted more than a decade before Smith, “[t]he basic purpose of th[e Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Court, 387 U.S. 523, 528 (1967) (emphasis added); see also Quon, 130 S.Ct. at 2627 (“The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government, without regard to whether the government actor is investigating crime or performing another function.” (internal quotation marks omitted)). The Fourth Amendment typically requires “a neutral and detached authority be interposed between the police and the public,” and it is offended by “general warrants” and laws that allow searches to be conducted “indiscriminately and without regard to their connection with [a] crime under investigation.” Berger v. New York, 388 U.S. 41, 54, 59 (1967). 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. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast.FN67
FN67. James Madison, Speech in the Virginia Ratifying Convention on Control of the Military (June 16, 1788), in The History of the Virginia Federal Convention of 1788, With Some Account of Eminent Virginians of that Era Who Were Members of the Body (Vol.1) 130 (Hugh Blair Grigsby et al. eds., 1890) (“Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”).
