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Yesterday, U.S. District Court Judge Richard J. Leon ruled that the National Security Agency's extensive collection of "metadata"-as revealed by Edward Snowden earlier this year-is likely to have violated the Fourth Amendment. Justice Leon stayed his ruling ordering the government to stop the warrantless surveillance of two plaintiffs pending a trial. Given the inevitable appeal, we're a long way from the end of this NSA program-even if Judge Leon rules again in favor of the plaintiffs.
Not every legal challenge to the metadata program was successful. Judge Leon dismissed a challenge based on the theory that the NSA's program exceeded the statutory authority granted by Congress. The court ruled that it lacked the jurisdiction to hear the claim under the Administrative Procedures Act. Judge Leon did, however, find that he had jurisdiction to hear the constitutional claims against the program. "While Congress has great latitude to create statutory schemes like FISA," the opinion declares, "it may not hang a cloak of secrecy over the Constitution."
On the merits, his arguments against the constitutionality of the program were compelling. Four points, in particular, are worth highlighting:
The End of the Catch-22
In its egregious decision earlier this year in Clapper v. Amnesty International, a bare majority of the Supreme Court created a Catch-22 for those looking to challenge government surveillance programs: Because they were secret, people potentially affected could not prove they had been searched and therefore lacked the standing to sue. Judge Leon is required to apply this decision whether he agrees with it or not. However, the opinion noted that Clapper came down before the Snowden revelations, and the sheer scope of the searches Snowden uncovered means that the two plaintiffs-who were Verizon subscribers-had the standing to sue. "[W]hereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all," Judge Leon pointed out, "plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention." The NSA should not be able to escape constitutional scrutiny based on a judicially created loophole this time.
The NSA's Program Constitutes a "Search" under the Fourth Amendment
For the Fourth Amendment's prohibition on unreasonable searches and seizures to be applicable, there has to be a search or seizure. In this case, the government argued that the metadata program does not constitute a "search." This argument is largely based on Smith v. Maryland, a 1979 case in which the Court held that dialed numbers stored by a phone company did not constitute a "search" in Fourth Amendment terms. Given the vastly increased surveillance capabilities of the state, Leon argues, Smith is not applicable to the NSA's metadata program. Crucial to Leon's argument is the 2012 case in which the Court held that a GPS tracker constitutes a Fourth Amendment "search" although simply noting the path of a car on public roads is not. Metadata tells us more about citizens than was the case in 1979, and therefore that case can no longer be considered applicable.
The NSA's Program Violates A Reasonable Expectation of Privacy
Warrantless searches are presumptively unreasonable under the Fourth Amendment. But there are exceptions to this rule. One set of possible exceptions concerns the use of communications technology that is not entirely private. Under the Supreme Court's current doctrine, warrantless searches are unreasonable and hence violate the Fourth Amendment when a person has an "expectation of privacy" in her communications. For the same reasons that Leon found that the metadata program constitutes a search, he argues that the program breaches a reasonable expectation of privacy: "[p]eople in 2013 have an entirely different relationship with phones than they did thirty-four years ago," one in which revealing even basic data can constitute a substantial breach of privacy.
The Warrantless Searches Are Not Justified By Security Needs
A warrantless, suspicionless search that abridges a legitimate expectation of privacy might be "reasonable" if it was justified by a compelling security interest that cannot be addressed any other way. In perhaps the strongest passages of Justice Leon's opinion, he persuasively argues that there is no such interest in this case. The government has simply not shown that these intrusive searches are justified as counterterrorism measures. While the government argues that these warrantless searches are necessary for reasons of efficiency, they simply haven't made the case:
...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 apparent urgency.
This point is a particularly important one. Tradeoffs between civil liberties and national security are too often treated as a zero-sum game, with robust civil-liberties protections assumed to reduce national security. Perversely, this framework means that constitutional violations become self-justifying: the violation becomes the evidence for its necessity. But the underlying assumption is inherently flawed, and metadata collection is a particularly strong example of this. Using scarce resources to compile and analyze metadata might reveal hidden terrorist activity, but it might also send investigators on wild goose chases that serve as diversions from threats that might have been identified with more targeted searches. We can't simply assume that the searches are justified by compelling national security interests. Unless the government produces such evidence, the NSA's metadata program is particularly hard to justify.
