A FISC judge disagrees with Klayman v. Obama (posted here and argued in the D.C. Cir. this past week). Also, ISPs have statutory standing to bring an action in the Foreign Intelligence Surveillance Court when they get a demand for records. In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, 2014 U.S. Dist. LEXIS 157865 (For. Intel. Surv. Ct. March 20, 2014):
2. Judge Leon in Klayman
Judge Leon acknowledged in Klayman that “what metadata is has not changed over time. As in Smith, the types of information at issue [here] are relatively limited: phone numbers dialed, date, time, and the like.” 957 F. Supp. 2d at 35 (italics in original). He nevertheless declined to follow Smith, providing four reasons why, in his view, the NSA telephony metadata program “is so different from a simple pen register that Smith is of little value in assessing whether [it] constitutes a Fourth Amendment search.” Id. at 32, First, Judge Leon asserted that the pen register in Smith lasted only thirteen days, with no indication from the Supreme Court “that it expected the Government to retain those limited phone records once the case was over.” Id. The NSA program, on the other hand, “involves the creation and maintenance of a historical database containing five years’ worth of data,” and might “go on for as long as America is combating terrorism, which realistically could be forever!” Id. (italics and exclamation point in original).
Second, Judge Leon asserted, “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 the telecom companies,” Id. (italics in original). The pen register in Smith involved the phone company’s response to a “one time, targeted request for data regarding an individual,” whereas the NSA program involves the daily production of metadata, in bulk. Id. at 33, While people might expect phone companies to “occasionally provide information to law enforcement,” Judge Leon expressed doubt that “citizens expect all phone companies to conduct what is effectively a joint intelligence-gathering operation with the Government.” Id.
Third, Judge Leon asserted, “the almost-Orwellian technology” that enables the Government to store and analyze phone metadata following its acquisition is “unlike anything that could have been conceived in 1979.” Id. According to Judge Leon, the Government uses the “most advanced twenty-first century tools, allowing it to ‘store such records and efficiently mine them for information years into the future,'” and to do so cheaply and surreptitiously, thus evading the “‘ordinary checks that constrain abusive law enforcement practices: limited police. . . resources and community hostility,'” Id. (quoting Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring)).
Fourth, and “most importantly,” according to Judge Leon, “the nature and quantity of the information contained in people’s telephony metadata [today] is much greater” than it was at the time of Smith. Id. at 34 (italics in original). Because more people use phones (and, in particular, cellular telephones) and use them more frequently now than in 1979, Judge Leon asserted that the “the metadata from each person’s phone ‘reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,'” that “could not have been gleaned from a data collection in 1979.” Id. at 36 (quoting Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring)). “Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.” Id. (citing United States v. Maynard, 615 F.3d 544, 562-63 (D.C. Cir. 2010), aff’d sub nom United States v. Jones, 132 S. Ct. 945 (2012)).
3. Smith Remains Controlling Notwithstanding Klayman.
This Court respectfully disagrees with Judge Leon’s reasons for deviating from Smith. To begin with, Judge Leon focused largely on what happens (and what could happen) to the telephony metadata after it has been acquired by NSA — e.g., how long the metadata could be retained and how the Government could analyze it using sophisticated technology. Smith and the Supreme Court’s other decisions applying the third-party disclosure principle make clear that this focus is misplaced in assessing whether the production of telephony metadata constitutes a search under the Fourth Amendment.
Smith reaffirmed that the third-party disclosure principle — i.e., the rule 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 (citing cases) — applies regardless of the disclosing person’s assumptions or expectations with respect to what will be done with the information following its disclosure, the Supreme Court emphasized:
“This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”
Smith, 442 U.S. at 744 (quoting United States v. Miller, 425 U.S. 435, 443 (1976)) (emphasis added). Because the disclosing person assumes the risk of further disclosure by the third party, the Court explained it is “unreasonable” for him “to expect his … records to remain private.” Id. The Supreme Court’s other third-party disclosure cases are also clear and consistent on this point. See Miller, 425 U.S. at 443 (citing United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966); Lopez v. United States, 373 U.S. 427 (1963)); see also S.E.C. v. Terry T. O’Brien, Inc., 467 U.S, 735, 743 (1984) (“It is established that, when a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.”) (emphasis added).
. . .
It is far from clear to this Court that even years’ worth, of non-content call detail records would reveal more of the details about a telephone user’s personal life than several months’ worth of the same person’s bank records. Indeed, bank records are likely to provide the Government directly with detailed information about a customer’s personal life — e.g., the names of the persons with whom the customer has had financial dealings, the sources of his income, the amounts of money he has spent and on what forms of goods and services, the charities and political organizations that he supports — that call detail records simply do not, by themselves, provide. Miller, which was decided in 1976, substantially undermines Judge Leon’s conclusion that Smith does not apply to the NSA telephony metadata program because the metadata from each person’s phone reveals so much about a person “that could not have been gleaned from a data collection in 1979,” when Smith was decided. See Klayman, 957 F. Supp. 2d at 36. Many more personal details could immediately and directly be obtained from bank records such as those in the production approved by the Court in Miller without raising Fourth Amendment concerns.
Moreover, it must be emphasized that the non-content telephony metadata at issue here is particularly limited in nature and subject to strict protections that do not apply to run-of-the-mill productions of similar information in criminal investigations. The call detail records acquired by NSA do not include subscriber names or addresses or other identifying information. See Pet. Exh. 1 (Secondary Order) at 2. Rather, such information can be determined by the Government for any particular piece of metadata only by resorting to other investigative resources or tools, such as grand jury subpoenas or national security letters. Furthermore, pursuant to this Court’s Primary Order, the metadata can only be accessed for analytical purposes after NSA has established a reasonable articulable suspicion (“RAS”) that the number to be used to query the data — the “seed” — is associated with one of the terrorist groups listed in the Order. See Jan. 3 Primary Order at 6-9 & nn. 8-9. Each query is limited to metadata within two (formerly three) “hops” of the seed. See id. at 11-12; Feb. 5, 2014 Order Granting Government’s Motion to Amend the Court’s Primary Order Dated January 3, 2014 (“Feb. 5 Order”), at 3-4 ,9.12 These protections further undercut Judge Leon’s reliance on the perceived intrusiveness of the telephony metadata program as a basis for deviating from Smith.
