The Era of Big Pen Register: The Flaw in Jeffrey Miller’s Moalin Decision

As I noted, on Thursday Judge Jeffrey Miller rejected Basaaly Moalin’s bid for a new trial based on disclosures of the Section 215 dragnet. Miller rejected the bid largely by relying on Smith v. Maryland and subsequent decisions that found no Fourth Amendment protection for pen registers.

But Miller resorts to a bit of a gimmick to dismiss Justice Sonia Sotomayor’s comments in US v. Jones.

Miller notes Sotomayor’s comments. But he points to the 170 year history of the pen register and reasons that because pen register technology is so old, they cannot be described as a “product of the so-called digital revolution,” and therefore cannot raise the kind of new privacy concerns Sotomayor had in mind.

As noted by Defendants, Justice Sotomayor stated that the recent rise of the digital era of cell phones, internet, and email communications may ultimately require a reevaluation of “expectation of privacy in information voluntarily disclosed to third parties.” Id. at 957. Defendants extrapolate from this dicta that the court should recognize that Defendant Moalin had a reasonable expectation of privacy cognizable under the Fourth Amendment that the Government would not collect either individual or aggregated metadata.

The difficulty with Defendants’ argument is twofold. First, the use of pen register-like devices – going back to Samuel Morses’s 1840 telegraph patent – predates the digital era and cannot be considered a product of the digital revolution like the internet or cell phones. See Samuel F.G. Morse, Improvement in the Mode of Communicating Information by Signals by the Application of Electro-Magnetism, U.S. Patent 1647, June 20, 1840, page 4 column 2. In short, pen register-like devices predate the internet era by about 150 years and are not a product of the so-called digital revolution – the basis for the concerns articulated by Justice Sotomayor. [my emphasis]

Now, before I pick this apart, let’s look back at an earlier move Miller made.

In assessing the Section 215 dragnet, Miller did not consider whether the collection of Moalin’s phone records as part of a database of every single American’s phone records was constitutional. Instead, he first considered Moalin’s interest in phone records not involving him, then considered Moalin’s protections in phone records involving him (this may suggest the government found Moalin on a second hop).

Defendants argue that the collection of telephony metadata violated Defendant Moalin’s First and Fourth Amendment rights. At issue are two distinct uses of telephone metadata obtained from Section 215. The first use involves telephony metadata retrieved from communications between third parties, that is, telephone calls not involving Defendants. Clearly, Defendants have no reasonable expectation of privacy to challenge any use of telephony metadata for calls between third parties. See Steagald v. United States, 451 U.S. 204, 219 (1981) (Fourth Amendment rights are personal in nature); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”); United States v. Verdugo-Uriquidez, 494 U.S. 259, 265 (1990) (the term “people” described in the Fourth Amendment are persons who are part of the national community or may be considered as such). As noted in Steagald, “the rights [] conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” 451 U.S. at 219. As individuals other than Defendants were parties to the telephony metadata, Defendants cannot vicariously assert Fourth Amendment rights on behalf of these individuals. To this extent, the court denies the motion for new trial.

The second use of telephony metadata involves communications between individuals in Somalia (or other countries) and Defendant Moalin. The following discusses whether Defendant Moalin, and other Defendants through him, have any reasonable expectation of privacy in telephony metadata between Moalin and third parties, including co-defendants.

In other words, Miller takes Moalin’s phone records out of the context in which they were used. In doing so, he turns an enormous database — very much the product of the “so-called digital revolution” — into two pen registers, 170 year old technology.

That move is all the more problematic given repeated Administration explanations (cited by Moalin’s defense and therefore even Miller in his ruling) that Moalin was only identified through indirect contact with an identified selector (presumed to be Somali warlord Aden Ayro).

That is, Moalin would not have been identified without using the features of the database and NSA’s chaining analysis. Moalin was identified not because a single pen register showed him to be in contact with Aden Ayro, but because a network analysis showed his contacts with someone else appeared to be of sufficient value to constitute a likely tie to Ayro himself. And that two-hop connection served either as the basis to listen to already collected conversations involving Moalin via back door searches or, by itself, the basis for probable cause to wiretap Moalin (I suspect it’s the former, and further suspect they used the fruits of that back door search to get the warrant to tap Moalin directly).

Members of the Administration have assured us, over and over, that this chaining analysis is only possible with a complete haystack. Thus, the entire haystack — the database and data analysis that are the quintessential tool of the “so-called digital revolution” — is the instrument of surveillance, not hundreds of millions of individual pen registers. And yet, in their first victory over a defendant with standing, the judge resorted to a gimmick to render that haystack back into hundreds of millions of pieces of hay again.

Update: This passage, from the Administration White Paper, is inconsistent with Miller’s treatment of the dragnet as two separate pen registers.

Although broad in scope, the telephony metadata collection program meets the “relevance” standard of Section 215 because there are “reasonable grounds to believe” that this category of data, when queried and analyzed consistent with the Court-approved standards, will produce information pertinent to FBI investigations of international terrorism, and because certain analytic tools used to accomplish this objective require the collection and storage of a large volume of telephony metadata. This does not mean that Section 215 authorizes the collection and storage of all types of information in bulk: the relevance of any particular data to investigations of international terrorism depends on all the facts and circumstances. For example, communications metadata is different from many other kinds of records because it is inter-connected and the connections between individual data points, which can be reliably identified only through analysis of a large volume of data, are particularly important to a broad range of investigations of international terrorism. [my emphasis]

14 replies
  1. PeasantParty says:

    Oh, JUST, DAMN!

    Pick it apart, EW. Pick it to the bones and then the marrow!

    This is nothing more than a slick way to contrive what the meanings of the 1st and 4th actually mean and to whom they might accidently protect!

  2. PeasantParty says:

    @PeasantParty: I didn’t do that. I swear it did the double take on it’s own. Of course, I had to do a double take on the piece. This is pure BULLSHIT on the part of the Judge.

  3. PeasantParty says:

    I have to fight this in the most modest form of words I can. When you go to purchase a new cell phone and the service provider, do you get the full Monty on what your phone and service provider will do with your personal conversations, location, and pictures?


    I think the very first place to shine a light is on the Corporatists that are taking your faith in them and their products to entrap you in some global gulag.

    It is a global world now. We all interact with people around the world thanks to this amazing technology. If this particular Judge is going to use his warped view of who is protected to say nobody is protected, then what the hell is he doing being a Judge? Is he not there to make sure the Law is forefront and protects the individuals it was written for in the form of Justice?

    Why, Yes. Yes, Judge. You have forfeited your legitimacy on the Bench!

  4. PeasantParty says:

    Is there anyone near this Judge that has a copy of that little Red Civil Code Book? If so, Throw it at his HEAD!

  5. joanneleon says:

    This judge seems to be engaging in some kind of pretzel logic.

    So basically, if you claim that the investigation started with a phone record from a multi-hop analysis, you can defeat any person’s claim of Fourth Amendment rights because their own Fourth Amendment rights weren’t violated but the rights of someone at least one degree removed from them were involved, and the defendant doesn’t have standing to make claims about that person’s rights?

    Are we supposed to believe that our govt. gets a warrant to look at the content of the communications of every person who has a friend who talked to a “bad guy” before reviewing the content of their communications to figure out if they committed a crime?

    Also, I think I’m missing the big point. The Sotomayor statements are interesting and I hope they do lead to a review of the Smith decision, in light of the drastic changes in communications due to digital technology. But I’m missing the point of why they are relevant in this case and how the judge uses pen register type examples in his justification?

    In any case, thanks for this explanation and analysis. I got a lot out of it. The process that our govt most likely goes through to nab people, do back door searches and then go back and reconstruct the investigation are clearer to me now than they were before.

    Basically, if I’m understanding this correctly, we suspect that they have access to all the meta data and content and use if freely to search through the communications of networks of people connected to a “bad guy”. Then they go back and say they got a warrant to look at the content based on the fact that the defendant had indirect contact with the “bad guy” (when they really didn’t) and therefore it’s all legal.

  6. Anonsters says:


    So basically, if you claim that the investigation started with a phone record from a multi-hop analysis, you can defeat any person’s claim of Fourth Amendment rights because their own Fourth Amendment rights weren’t violated but the rights of someone at least one degree removed from them were involved, and the defendant doesn’t have standing to make claims about that person’s rights?

    That’s exactly right.

  7. Anonsters says:


    The thing is, Miller didn’t really even have to address the concurrence of Sotomayor in the way he did. He could have simply said something like this:

    “As a District Court judge, I’m bound by Supreme Court precedent, not the sundry reflections of individual justices in separate opinions. If the Supreme Court wishes to pursue Justice Sotomayor’s suggestions further, and thus make her observations binding on lower courts, they are free to do so. I am not.”

    So the judge didn’t have to use a gimmick, because Sotomayor’s individual musings aren’t binding, whereas the fundamental approach of the Supreme Court in 4th Amendment jurisprudence (where people have no reasonable expectation of privacy in what we now call telephony metadata) is.

    Miller’s decision really rests entirely on his earlier decisions in the case about FISA. As he says on p. 7:

    Because the court has already considered and addressed many of the FISA and CIPA arguments from a federal and constitutional law perspective, the present motion is akin to a motion for reconsideration.

    Since it’s a motion for reconsideration (or at least being treated like one), the standard Miller has to apply is that only “newly discovered evidence, intervening change of law, or clear error” warrant changing his previous rulings on the admissibility of the FISA evidence. The public revelations about the extent of the phone dragnet don’t change the evidence that was introduced, and they don’t present any new evidence going to the substance of the charges. The telephony metadata is the same it was earlier in the case.

    So, says Miller, the defense’s argument must hinge entirely on “clear error”—the idea being that the extent of the phone dragnet means, not that there’s new evidence in the case, but that the judge’s prior rulings on the admissibility of the FISA evidence was in clear error. So the defense would have to show/argue that the phone dragnet makes the admission of FISA evidence clear error. That’s a much more difficult standard to meet, and I don’t think it’s reasonable to expect a federal district court judge to find clear error based entirely on comments in a single justice’s concurring opinion.

    The defense might have a better shot in the 9th Circuit Court, though, since circuit courts are more willing to go down novel doctrinal paths.

  8. emptywheel says:

    @Anonsters: Oh, I know Soto is not binding on him. That he included it says more about sensitivity on his part that the program does appear unconstitutional on its face (as I said, his rejection relies on Smith). And as I said on Friday, this is less obviously shoddy than Claire Eagan’s opinion (though it has to achieve a lower bar).

    I think most interesting may be that the two or three efforts to push back against Jones have all used pretty different approaches to dismiss its relevance.

  9. peasantparty says:

    @emptywheel: “I think most interesting may be that the two or three efforts to push back against Jones have all used pretty different approaches to dismiss its relevance”


    This Judge knows exactly what he is doing. Blocking the appeal is beyond decency though. As he has left this case, he himself could be caught in the dragnet because he purchases coffee at the drive thru window from a foreigner whose Uncle lives in Afghanistan.

    Where is the relevancy here, and where does US law protect its citizens? Are we to base justice and protection on secret laws, secret OLC opinions, and secret courts that okay the warrantless activity?

    Something has to give. There MUST be clear law and clear justification to use the law in such a way.

  10. Anonsters says:


    That he included it says more about sensitivity on his part that the program does appear unconstitutional on its face

    See, I’m inclined to think he included discussion of it simply because the defense made it one of the main prongs of their motion.

    Anyway, I couldn’t agree with Sotomayor more, although I disagree with her that the rise of the internet and so on warrants reconsideration of Smith. Smith, to me, was wrong when it was decided and should have been reconsidered long ago. :P

  11. bloodypitchfork says:

    Notwithstanding this post, and all the others pertaining to NSA and the Surveillance State, and all the legal analysis, I’m going to post something here as an aside, as I don’t know where else to put it, but I think you need to see this.

    When the Snowden revelations started appearing in the Guardian back in June, various people in the comment section started suggesting Snowden might have NSA documents on 9/11, and of all things..UFO’s. Now please bear with me. I have no reason to slight emptywheel by posting what some may consider completely out of the context of this sites reporting. However, something happened this morning that you may want to consider, as it is almost beyond belief. At least to me.
    Every morning as I have my first cup of coffee, I usually scan Google news where there are articles linked by various news and online magazines. This morning, this article caught my attention.

    Within the article was this link:

    This is the actual site for NSA’s Information Assurance

    Look at the top where it says “Public Information”, and hover your curser over it and a pull down menu pops up. Go down to “Declassification and Transparency” and click on it.
    This comes up…

    The first thing I clicked on was United States vs Thomas Drake, which is the second item in the list. As if that doc wasn’t enough, after reading I scanned the list again. Holy Mother of NSA.

    Down towards the middle of the list is “Unidentified Flying Objects”(UFO), and click on it.

    Go down to the bottom and click on #41

    Voila! Messages from space. Written by Dr. Howard Campaigne.
    I looked him up too. He was a mathematician who helped the British decode Nazi radio communications during WW11. Mindboggling.

    I was wondering why this was buried so far down in the NSA “disclosure” list.

    Now I know why. When I searched for info on the author..this came up.

    Now I’m REALLY wondering what the rest of Snowdens revelations contain.

    We now return you to your previously scheduled program. :)

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