Dianne Feinstein Glosses Jeffrey Miller Phone Dragnet Decision

Dianne Feinstein just released a statement effectively saying she likes the FISA Court phone dragnet decisions and the one Judge Jeffrey Miller made in the Moalin case better than the one Richard Leon issued yesterday.

Clearly we have competing decisions from those of at least three different courts (the FISA Court, the D.C. District Court and the Southern District of California). I have found the analysis by the FISA Court, the Southern District of California and the position of the Department of Justice, based on the Supreme Court decision in Smith, to be compelling.

But I’m particularly interested in the way she describes the Miller decision.

It should be noted that last month Judge Jeffrey Miller of the Southern District of California found the NSA business records program to be constitutional.

Judge Miller was ruling on a real world terrorist case involving the February 2013 conviction of Basaaly Moalin and three others for conspiracy and providing material support to the Somali terrorist organization Al-Shabaab. In that case, the NSA provided the FBI with information gleaned from an NSA query (under Section 215) of the call records database that established a connection between a San Diego-based number and a number known to be used by a terrorist with ties to al Qaeda.

In upholding these convictions, Judge Miller cited Smith v. Maryland (1979) the controlling legal precedent and held the defendants had ‘no legitimate expectation of privacy’ over the type of telephone metadata acquired by the government—which is the ‘to’ and ‘from’ phone numbers of a call, its time, its date and its duration. There is no content, no names and no locational information acquired.

As a threshold matter, Judge Miller did not decide last month that the phone dragnet was constitutional. He decided sometime around June 5, 2012, and that decision remains sealed in its entirety. He treated Moalin’s bid for a new trial as a reconsideration of his earlier decision, stating he had,”already considered and addressed many of the FISA and CIPA arguments from a federal and constitutional law perspective.” He deliberated just one day after the hearing on a new trial before rejecting the motion. Which means that his decision rests primarily on whatever representations the government made in secret — and none of us have gotten to see that decision.

If Senator Feinstein would like to use her position on the Senate Intelligence and Judiciary Committees to liberate that decision given that she’s relying on it, by all means let’s have some transparency!

Now look at how Feinstein characterizes the issue before Miller:

[T]he NSA provided the FBI with information gleaned from an NSA query (under Section 215) of the call records database that established a connection between a San Diego-based number and a number known to be used by a terrorist with ties to al Qaeda.

That is, she characterizes Miller’s review as weighing whether using an (at least) second-degree hop in a database to establish probable cause is Constitutional.

But that’s most definitely not what Miller did. Instead, he ignored the database entirely (the word “database” doesn’t appear in his ruling), and assessed the use of what Feinstein describes as a database query as two separate pen registers.

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. [my emphasis]

I believe that in documents that have been released since Miller’s ruling, the government distinguished this from pen registers (digging up those references now). But one thing’s clear: Miller didn’t approve the use of a database to show that his two-degree link between Moalin and Aden Ayro amounted to probable cause that he was an agent of a foreign power. He approved of two or more discrete pen registers.

That may or may not amount to a legal difference (Leon didn’t consider the database as such either). But I find it mighty telling that Feinstein describes the dragnet in terms her favored criminal ruling does not.

12 replies
  1. edge says:

    I have a question regarding the Smith case.

    The Smith ruling says:

    Given a pen register’s limited capabilities, therefore, petitioner’s argument that its installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.

    (previously in the ruling they highlight how limited a pen register is by pointing out that it does not even capture whether a connection was made – only the outgoing numbers that were dialed).

    If the pen register’s capabilities were less limited, what other claims (beside expectation of privacy) could Smith have used to argue that it was a search?

    Does the extra meta-data being collected now (inbound call info, call duration, etc.) cross the limited capability line?

  2. earlofhuntingdon says:

    @edge: Metadata now collected is infinitely more “useful” than the data by an old-style pen register. The latter might have revealed what was under the bandaid; the former reveals to the analyst and her pattern-analysis software nearly the entire physiology of the individual and much about the behavior of the population to which it belongs.

    Metadata is extraordinarily revealing of individual and group behavior. Its bulk collection from an entire population, without probable cause or a scintilla of accountability, is extraordinarily profitable and revealing. It is not, however, consistent with privacy rights or constitutional limits on government behavior.

  3. pdaly says:

    Somewhat OT:

    Harvard College sophomore Eldo Kim was charged today in a bomb threat that occurred yesterday during final exams on campus.

    Here is the complaint signed by FBI Special Agent Thomas Dalton. Curious to learn more about the government’s and Harvard’s ability to identify the student who used both Guerrilla Mail and TOR to send the bomb threat:

    “8. In the course of this investigation, I have learned that the person who sent the e-mail messages described above took steps to disguise his identity. Specifically, Harvard received the e-mail messages from a service called Guerrilla Mail, an Internet application that creates temporary and anonymous e-mail addresses available free of charge. Further investigation yielded information that the person who sent the e-mail messages accessed Guerrilla Mail by using a product called TOR, which is also available free of charge on the Internet and which automatically assigns an anonymous Internet Protocol (“IP”) address that can be used for a limited period of time.” [snip]

    “9. Harvard University was able to determine that, in the several hours leading up to the receipt of the e-mail messages described above, ELDO KIM accessed TOR using Harvard’s wireless network.”


  4. pdaly says:


    I wouldn’t be surprised to learn that first the FBI identified Kim, and subsequently Harvard determined that Kim did access TOR.

  5. Everythings Jake says:

    For the love of whatever, please fellow Californians, the very next opportunity, please help to send the harpy ghoul that is Feinstein in to retirement.

  6. bloodypitchfork says:

    @Everythings Jake: quote”For the love of whatever, please fellow Californians, the very next opportunity, please help to send the harpy ghoul that is Feinstein in to retirement. “unquote

    I’d settle placing her under the lunette.

  7. rg says:

    @pdaly: Can’t help but wonder how many other contacts were made to TOR in the same time period, whether on that network, or from any other source; that’s the stuff of exculpatory evidence.

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