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Richard Leon: A Phone Dragnet Is Not a Special Need

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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.

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That Pirate May Be the Missing Link We Should Drone Kill

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As I mocked last night, 60 Minutes decided to use pirate data collected under EO 12333 to demonstrate how it conducts call chaining on US citizen data collected under Section 215. But the exchange is rather interesting for the way the NSA analyst, Stephen Benitez, describes finding a potentially key player in a network of pirates.

Metadata has become one of the most important tools in the NSA’s arsenal. Metadata is the digital information on the number dialed, the time and date, and the frequency of the calls.  We wanted to see how metadata was used at the NSA.  Analyst Stephen Benitez showed us a technique known as “call chaining” used to develop targets for electronic surveillance in a pirate network based in Somalia.

Stephen Benitez: As you see here, I’m only allowed to chain on anything that I’ve been trained on and that I have access to. Add our known pirate. And we chain him out.

John Miller: Chain him out, for the audience, means what?

Stephen Benitez: People he’s been in contact to for those 18 days.

Stephen Benitez: One that stands out to me first would be this one here. He’s communicated with our target 12 times.

Stephen Benitez: Now we’re looking at Target B’s contacts.

John Miller: So he’s talking to three or four known pirates?

Stephen Benitez: Correct. These three here. We have direct connection to both Target A and Target B. So we’ll look at him, too, we’ll chain him out. And you see, he’s in communication with lots of known pirates. He might be the missing link that tells us everything. [my emphasis]

Compare the language Benitez uses here with that which Gregory McNeal used to describe drone targeting back in February.

Networked based analysis looks at terrorist groups as nodes connected by links, and assesses how components of that terrorist network operate together and independently of one another.  Those nodes and links, once identified will be targeted with the goal of disrupting and degrading their functionality.  To effectively pursue a network based approach, bureaucrats rely in part on what is known as “pattern of life analysis” which involves connecting the relationships between places and people by tracking their patterns of life. This analysis draws on the interrelationships among groups “to determine the degree and points of their interdependence.” It assesses how activities are linked and looks to “determine the most effective way to influence or affect the enemy system.”

[snip]

Viewing targeting in this way demonstrates how seemingly low level individuals such as couriers and other “middle-men” in decentralized networks such as al Qaeda are oftentimes critical to the successful functioning of the enemy organization. Targeting these individuals can “destabilize clandestine networks by compromising large sections of the organization, distancing operatives from direct guidance, and impeding organizational communication and function.” Moreover, because clandestine networks rely on social relationships to manage the trade-off between maintaining secrecy and security, attacking key nodes can have a detrimental impact on the enemy’s ability to conduct their operations. [my emphasis]

That is, the language describing the process behind signature strikes closely matches the language describing NSA’s targeting for wiretapping. Both these analyses are doing the same thing: trying to find the key nodes in networks of people (though the drone targeting appears to draw in additional intelligence about someone’s observed actions and locations).

Now, as I said, when Benitez used the word “target,” he was presumably discussing only targeting for surveillance, not for drone killing (besides, thus far we haven’t drone killed any pirates I know of).

But it is very easy to see what kind of role metadata analysis would play in the early stages of targeting a signature strike, because that’s precisely how the intelligence community identify the nodes that, McNeal tells us, they’re often targeting when they conduct signature strikes. Wiretap the person at that node and you may learn a lot (that’s also probably the same kind of targeting they do to select potential informants, as we know they do with metadata), kill that person and you may damage the operational capabilities of a terrorist (or pirate) organization.

When the WaPo reported on NSA’s role in drone killing, it focused on how NSA collected content associated with a known target — Hassan Ghul — to pinpoint his location for drone targeting.

But NSA probably plays a role in the far more controversial targeting of people we don’t know for death, with precisely the kind of contact chaining it uses on US persons.

Note, in related news, Richard Leon has just ruled for Larry Klayman in one of the first suits challenging the phone dragnet (with the injunction stayed pending appeal). I’ll have analysis on that later.

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