S.D.Cal.: NSA leak case: No reasonable expectation of privacy in the metadata of a telephone call seized off of a third party’s call

Defendant’s post-trial learning of an NSA leak claim that defendant’s phone calls were captured by the NSA affords no relief. The court finds no reasonable expectation of privacy in the metadata of a telephone call seized off of a third party’s telephone call. United States v. Moalin, 2013 U.S. Dist. LEXIS 166582 (S.D. Cal. November 14, 2013):

Here, when Defendant Moalin used his telephone to communicate with third parties, whether in Somalia or the United States, he had no legitimate expectation of privacy in the telephone numbers dialed. The calls were routed through the communications company and its switching equipment in the ordinary course of business. While Defendant Moalin may have had some degree of a subjective expectation of privacy, that expectation is not “one that society is prepared to recognize as reasonable.” Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (quoting Katz, 389 U.S. at 361). Furthermore, where the calls were initiated by third parties, whether from Somalia or other countries, Defendant Moalin’s subjective expectation of privacy is even further diminished because Defendant Moalin cannot assert Fourth Amendment principles on behalf of third parties. The court could not locate any authorities, nor do Defendants cite any pertinent authorities, that recognize any expectation of privacy in the receipt of telephone call data from a third party in a foreign country. As in Smith, because the metadata was obtained through communications companies and their switching equipment, Defendant Moalin “cannot claim that his property was invaded or that police intruded into a ‘constitutionally protected area.'” 442 U.S. at 741.6 While technology continues to advance through the implementation of new devices and methods, the legal analysis remains fairly constant: whether “the government violate[d] a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). For the above stated reasons, Defendant’s minimal subjective belief in the privacy of telephony metadata is not one that society has adopted.

fn6 As set forth above, Defendant Moalin lacks standing to challenge the metadata collected in reference to communications initiated by third parties. The Fourth Amendment rights are “personal in nature” and Defendant Moalin cannot assert any Fourth Amendment right on behalf of any party subject to the collection of telephone metadata. See Steagald, 451 U.S. 204, 219.

The FISC has similarly determined that individuals like Defendant Moalin cannot successfully assert a cognizable Fourth Amendment claim to telephony metadata. In In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, 2013 WL 5307991, *3 (For. Intell. Sur. Ct. Aug. 29, 2013), the court found that a Section 215 order for telephony metadata does not implicate the Fourth Amendment.

[B]ecause the Application at issue here concerns only the production of call detail records or ‘telephony metadata’ belonging to a telephone company, and not the contents of communications, Smith v. Maryland compels the conclusion that there is no Fourth Amendment impediment to the collection …. [T]his court finds that the volume of records being acquired does not alter this conclusion. Indeed, there is no legal basis for the Court to find otherwise.

Defendants also vigorously contend that “the long-term recording and aggregation of telephony metadata constitutes” an impermissible Fourth Amendment search. (Reply at p. 6:7-8). The court notes that the preservation of “long-term recordings” of telephony metadata played a minor role in the underlying investigations. …