Richard Leon: A Phone Dragnet Is Not a Special Need

As I noted briefly in this post, Judge RIchard Leon ruled that Judicial Watch’s Larry Klayman is very likely to succeed in his suit challenging the phone dragnet on Constitutional grounds. He issued an injunction requiring NSA to take out Klayman’s data, but stayed that decision pending appeal.

While many civil liberties lawyers are hailing the decision, the its strength might be measured by the fact that Mark Udall and Jim Sensenbrenner both used it as a call to pass Leahy-Sensenbrenner; they did not celebrate the demise of the dragnet itself. That is, it is almost certain that this decision will not, by itself, end the dragnet.

I suspect this ruling will serve to break the ice for other judges (there are several other suits, a number of them launched by entities — like the ACLU — that I expect to have better command of the details of the dragnet and the reasons it is unconstitutional, which may lead to a stronger opinion). And to the extent it stands (don’t hold your breath) it will begin to chip away at NSA’s claims that searches don’t happen on collection, but on database access.

And on one point, I think Leon’s ruling provides a really important baseline on the matter of special needs.

As Orin Kerr sketches out roughly here (and I agree with much of what he says about Leon’s ruling), Leon basically held that Smith v. Maryland didn’t apply in the era of smart phones. From there, he moved onto Fourth Amendment analysis, which involves an analysis of whether the special need of hunting terrorists merits the huge privacy infringement of collecting all phone records in the US. After reviewing the precedents on special needs, Leon writes,

To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches  of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet.

Then Leon goes on to challenge the government’s claims about the need involved.

The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.”

[snip]

A closer examination of the record, however, reveals the Government’s interest is a bit more nuanced–it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow.

Which brings him to the same issue Ron Wyden and Mark Udall keep pointing to: the NSA simply doesn’t have evidence of this actually having worked.

Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any urgency.

Now, I actually think the NSA and FBI declarants in this case begin to hint at the real purpose of the dragnet — I’ll come back to that once PACER recovers from what everyone jokes is NSA retaliation for this ruling.

But with regards to accomplishing the purpose the NSA claims the dragnet serves, there’s no evidence to show. Leon finds that absent real proof that the dragnet works, Klayman’s privacy interests outweigh the Government’s need.

Given the limited record before me at this point in the litigation–most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics–I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.

[snip]

Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing build telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.

Now, to be clear, before Leon gets here, he has to get by Smith v. Maryland, and I agree with Kerr that his argument there isn’t all that strong (though I disagree with Kerr that it couldn’t be).

But one big takeaway from this ruling –whether the DC Circuit overturns it or not — is that it will be very hard for the government to make the case that the need the dragnet serves outweighs the privacy cost.

Probably not with this ruling, but it may not be long before the government has to face up to the fact that its dragnet really hasn’t shown any results.

Update: New Yorker’s Amy Davidson writes, “But what his ruling does is deprive the N.S.A. of the argument of obviousness: the idea that what it is doing is plainly legal, plainly necessary, and nothing for decent people to worry about.” That’s about what I mean by Leon breaking the ice.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

10 replies
  1. JThomason says:

    Is this the most enlightening comment on Leon’s opinion over there at the Volokh Conspiracy?

    “I’m not sure Smith is good law anymore, given the rise of the Mosaic Theory in Jones.”

    And I thought as a Nation as a whole we were way beyond keeping up with the Jones.

  2. Nigel says:

    Now, to be clear, before Leon gets here, he has to get by Smith v. Maryland, and I agree with Kerr that his argument there isn’t all that strong (though I disagree with Kerr that it couldn’t be).

    What are the most important ways in which you think the argument could have been stronger ?

  3. JThomason says:

    @Nigel: On page 63 of Judge Leon’s opinion he distinguishes Smith as arising of a different “context”, namely one where a specific suspicion has arisen or a “special need” where there is no specific suspicion and the invasion is minimally intrusive.

    Kerr sidesteps this plain spoken holding suggesting there is no difference in context but the case law examined in Judge Leon’s concluding reasoning frames the inquiry.

  4. CTuttle says:

    I suspect this ruling will serve to break the ice for other judges (there are several other suits, a number of them launched by entities — like the ACLU — that I expect to have better command of the details of the dragnet and the reasons it is unconstitutional, which may lead to a stronger opinion).

    Mahalo, EW, I do think it is a seismic shift in the legal landscape, it’s rather wry that it had happen with a Shrub appointee, and, brought by rabid RW Libtards…! *gah*

  5. Greg Bean (@GregLBean) says:

    Regardless of argument, “privacy outways need” or “obviousness”, it must stand, and that is not a given, as EW says, “And to the extent it stands (don’t hold your breath)”.

    So, how with a corrupted AG and DoJ does this not get rolled?

    I’d like to think somehow it will survive and flourish but am way too cynical for such optimism.

  6. William Ockham says:

    Would “Smith v Maryland” have been decided differently if the police had incidentally collected all of the content of Smith’s phone calls? And the content of all of his neighbors’s calls? And the police had lied to the judge about it?

    That is definitely what happened in the internet metadata program and I am convinced that it happened in the phone metadata case (but they claim it happens under a different “program”). The reason is simple. The Bush Administration admitted they were collecting phone content. The underlying technology never changed, only the legal justification.

    Judges need to start demanding technical information about how the data makes it way into the NSA. They can’t decide what is a search without understanding what is really happening. They need independent experts to help them understand the technology.

  7. emptywheel says:

    @Nigel: Leon brackets off First Amendment issues (JW didn’t argue them very well), which brackets off freedom of association entirely. Once you include that, though, the issue becomes not the collection of individual pen registers, but the creation of database of all associations in the US.
    Then that makes certain details Leon did hit — that the Data Integrity analysts fiddle with unminimized data — that really make the government’s arguments problematic.

    The EFF suit foregrounds association (as with the plaintiffs), which should bring this in.

  8. Scott Wahrenbrock says:

    The red herring in the analysis of NSA surveillance is if the Government can prove it has foiled terrorist attacks, or actually saved lives, a dragnet of surveillance is probably constitutional. If in fact the fourth amendment applies to collecting metadata, the court must not apply a “balancing test”, but a “compelling interest” test. A constitutional right can only be abridged if there is a compelling interest and the state action is narrowly tailored to meet that interest. So while preventing deaths/attacks may qualify as a compelling interest, the dragnet must be narrowly tailored to address that interest to pass constitutional muster. A very difficult hurdle to overcome when you collect everyone’s metadata. A simple balancing test would not provide much protection, and in my opinion, does not apply if in fact the collection of metadata is protected under the 4th.

    Think of it this way. Hundreds of people are killed each night in crimes across the country. No one would seriously argue that a dragnet of random searches of everyone’s homes without probable cause is permissible because it will save lives. Yet, that is what the NSA is arguing by focusing on the prevention of terrorism. Preventing terrorism is no different than preventing crime. The end goal is supposedly to keep people safe.

    So, we need to focus less on the argument the NSA cannot prove it saves lives/thwarts attacks, and more on the 4th amendment right to be free of government intrusion into our thoughts, writings, associations, etc. Because I can guarantee you the NSA is going to conjure up some type of evidence showing how the dragnet saves lives. And if saving lives were the whole goal, we would outlaw driving which kills over 30,000 a year.

    Smith needs to be hit head on and limited to its meager facts. For if the court rules Smith applies and dragnets are permissible, there is no end to the evils the NSA can perpetrate against our right to privacy.

  9. JThomason says:

    Judge Leon does frame “invasiveness” in somewhat of an Originalist context taking comfort that while he may not be able to exactly define why the NSA telephony practices are “unreasonable” it nevertheless appears to him to be the case that they are in fact “unreasonable” given their context.

    So whether one, in attempting to understand his holding, agrees there is an unreasonable intrusion by the program through the notion of general intent, the impingement on the spirit of the 1st Amendment or mosaic theory, the program itself deploys a sweeping inquiry (which necessarily includes collection) regarding certain individual characteristics of the citizenry. Conceptually the question of whether the Bill or Rights in its checks on tyranny permitted pretenses of governmental “omniscience” and actions toward its obtaining is the larger question of political philosophy that is being examined. And “omniscience”, in this case from a perspective of political philosophy is easily associated with the divine pretenses of the Crown in the particularly historical context in which the Bill of Rights emerged. Constitutional examination, uniquely, seems to require from time to time stepping beyond the practical confines of the traditional methods of analysis of particular cases and statutes and invites that certain additional powers of understanding be brought to bear. Whether this is jurisprudentially justified is another question.

    In many ways the limits of governmental cognizance are part of the equal protection jurisprudence prohibiting certain categorical distinctions without a reasonable relationship to legitimate state purposes. In some ways this strikes me as one of the reason the finding of no “special needs” in the NSA approach seems to have a resonance in the analysis beside the fact that it may be one way to categorize the justification for intrusion in an emergent line of cases permitting searches which would otherwise be unreasonable.

    I frame this comment in terms of “omniscience” because the emergent questions in security state jurisprudence seem to go to the scope rather than degree of invasiveness and because it refers to a quality particularly suited to understanding the pretense of the tyranny that would be apropos to an Originalist argument.

    If the inquiry is into “reasonableness,” the specific context of the facts is what is being considered and the inquiry, as suggested, is toward a principle that is not a legal standard as much as it is a foundational standard. So the inquiry invites the kind of analysis that was used in the GPS case where the Court declined to define the line but did not hesitate in finding it had been crossed. While the GPS examination went to persistence there is the added element here in the NSA telephony case of the “hops” and the expansive categorical conclusions inherent in the process beyond the aim of determining specific probable cause.

    Examining the efficacy in terms of exigent immediacy perhaps is a sound way to test the reasonableness of the practice if the patent offensiveness of the attempt to have absolute cognizance with respect to the People is not immediately understood to be inimical to the spirit of limited government.

    If the consideration goes down the worm hole of subjectivity so characteristic of pornography jurisprudence and touched upon in the GPS jurisprudence no one will end up being completely satisfied in the reasoning though some will inevitably be OK with the result. But this is the peril of considering change in the context of Originalist techniques.

    Perhaps the fact here are simply different than those ruled upon in Smith.

  10. What Constitution? says:

    Well, as essentially the first non-FISA jurist — one receiving a contentious rather than one-sided and secret presentation — in order to consider the constitutionality of NSA activities, Judge Leon does remarkable things such as consider the Fourth Amendment and its purposes. His conclusion is that hey, this does not look right.

    But don’t worry, Ben Wittes is there to pronounce this type of consideration DOA because, well, it would be hard to rule against what the NSA is doing. That’s enough for Wittes: “gee, it might not be easy or convenient to enforce the United States Constitution”. Right up [down] there with Joe Klein’s “beyond stupid” comment concerning people who felt that torture might be considered a punishable offense, or the “30,000 feet” smarmy disdain of Chuck Todd. Isn’t it amazing how predictably an army of sycophants will line up to abandon the fundamental principles of our Constitution — and do so as if they were being intelligent rather than defeatist in doing so? Do we have to make these nimrods watch Michael Douglas’ speech in The American President one more time?

    Congratulations to Judge Leon for actually beginning the process of actually considering the constitutionality of what NSA is actually doing as we are now actually finding out. Rather than dismissing the very idea of considering the constitutionality of these activities in the name of what, expediency? How can a person who professes to believe in the United States Constitution — even a little bit — take it upon himself to pen such an ode to submissive acquiescence immediately upon seeing the first glimmer of actual judicial review? Doesn’t that kind of thing merit disbarment more than respect?

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