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Whoa... Don’t Miss the Footnotes: Judge Leon’s Opinion in Klayman (Section 215 Collection) - Lawfare
Don’t Miss the Footnotes: Judge Leon’s Opinion in Klayman (Section 215 Collection)By Raffaela Wakeman - Lawfare
Tuesday, December 17, 2013 at 1:22 AM
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The meat of Judge Leon’s opinion focuses on the first requirement. But first—standing.
Judge Leon begins by contrasting the plaintiffs here with those in Clapper v. Amnesty International, who were not able to trace the surveillance program to themselves and thus could not establish standing. Since the plaintiffs here are Verizon subscribers, and the infamous order pertains to Verizon, there is a high likelihood of injury in fact. Judge Leon rejects quickly one of the government’s lesser arguments against standing: that the plaintiffs were Verizon Wireless subscribers, while the FISC order was directed at Verizon Business Network Services. “Put simply, the Government wants it both ways.” Judge Leon reminds readers that the government is quite proud of its comprehensive metadata program (“comprehensive” meaning collecting everything, including, presumably, Verizon Wireless subscriber data). He usefully inserts a pop culture reference in a footnote in this section: “To draw an analogy, . . . omitting Verizon Wireless, AT&T, and Sprint from the collection would be like omitting John, Paul, and George from a historical analysis of the Beatles. A Ringo-only database doesn’t make any sense. . .”
The district court judge finds the basis for standing not in the plaintiffs’ arguments on the matter, but instead in examination of the government’s arguments against standing. The very comprehensiveness of the data, he concludes (citing the 2006 D.C. Circuit case of Johnson v. Quandar), “implicates the Fourth Amendment each time a government official monitors it.”
Next up is likelihood of success on the merits: Judge Leon reviews the metadata program through the prism of a subjective expectation of privacy (think Katz), rather than a physical intrusion (United States v. Jones). Paul summarized Judge Leon’s opinion of Smith v. Maryland’s third party doctrine here quite succinctly: it’s old. Instead, Judge Leon views Justice Sotomayor’s concurring opinion in Jones as more on point. He points out several differences between the program in Smith—a pen register—and the telephony metadata program: Smith’s program lasted for a mere thirteen days, and the government likely tossed the records after the criminal case was over, while the NSA program has five years worth of data, and “there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!”
Another difference between Smith and the program here: the relationship between law enforcement and the provider. Smith: a one-time, targeted request, versus a “daily, all-encompassing, indiscriminate dump of phone metadata.” Indeed, to the district court judge, the NSA-tech company bromance is more akin to a “joint intelligence-gathering operation.” The technology deployed in the 1979 Supreme Court case versus that utilized by NSA today is also worlds apart, with the latter tagged as “Orwellian,” and “the stuff of science fiction.” The price point also is an issue for the judge, since financial resources traditionally operate as a constraint on the breadth of law enforcement efforts. Lastly, Judge Leon points to the sheer quantity of phone metadata at NSA’s fingertips, and walks through a host of statistics speaking to that: the number of 2013 mobile subscribers total approximately 3,000 times the number of subscribers in 1984, for example. In agreeing with the plaintiffs on the likelihood of success on their Fourth Amendment claims, Judge Leon admits the uselessness of Smith to him: ”I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a cast that predates the rise of cell phones.”
Shifting to the reasonableness of the NSA queries...
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...
The meat of Judge Leon’s opinion focuses on the first requirement. But first—standing.
Judge Leon begins by contrasting the plaintiffs here with those in Clapper v. Amnesty International, who were not able to trace the surveillance program to themselves and thus could not establish standing. Since the plaintiffs here are Verizon subscribers, and the infamous order pertains to Verizon, there is a high likelihood of injury in fact. Judge Leon rejects quickly one of the government’s lesser arguments against standing: that the plaintiffs were Verizon Wireless subscribers, while the FISC order was directed at Verizon Business Network Services. “Put simply, the Government wants it both ways.” Judge Leon reminds readers that the government is quite proud of its comprehensive metadata program (“comprehensive” meaning collecting everything, including, presumably, Verizon Wireless subscriber data). He usefully inserts a pop culture reference in a footnote in this section: “To draw an analogy, . . . omitting Verizon Wireless, AT&T, and Sprint from the collection would be like omitting John, Paul, and George from a historical analysis of the Beatles. A Ringo-only database doesn’t make any sense. . .”
The district court judge finds the basis for standing not in the plaintiffs’ arguments on the matter, but instead in examination of the government’s arguments against standing. The very comprehensiveness of the data, he concludes (citing the 2006 D.C. Circuit case of Johnson v. Quandar), “implicates the Fourth Amendment each time a government official monitors it.”
Next up is likelihood of success on the merits: Judge Leon reviews the metadata program through the prism of a subjective expectation of privacy (think Katz), rather than a physical intrusion (United States v. Jones). Paul summarized Judge Leon’s opinion of Smith v. Maryland’s third party doctrine here quite succinctly: it’s old. Instead, Judge Leon views Justice Sotomayor’s concurring opinion in Jones as more on point. He points out several differences between the program in Smith—a pen register—and the telephony metadata program: Smith’s program lasted for a mere thirteen days, and the government likely tossed the records after the criminal case was over, while the NSA program has five years worth of data, and “there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!”
Another difference between Smith and the program here: the relationship between law enforcement and the provider. Smith: a one-time, targeted request, versus a “daily, all-encompassing, indiscriminate dump of phone metadata.” Indeed, to the district court judge, the NSA-tech company bromance is more akin to a “joint intelligence-gathering operation.” The technology deployed in the 1979 Supreme Court case versus that utilized by NSA today is also worlds apart, with the latter tagged as “Orwellian,” and “the stuff of science fiction.” The price point also is an issue for the judge, since financial resources traditionally operate as a constraint on the breadth of law enforcement efforts. Lastly, Judge Leon points to the sheer quantity of phone metadata at NSA’s fingertips, and walks through a host of statistics speaking to that: the number of 2013 mobile subscribers total approximately 3,000 times the number of subscribers in 1984, for example. In agreeing with the plaintiffs on the likelihood of success on their Fourth Amendment claims, Judge Leon admits the uselessness of Smith to him: ”I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a cast that predates the rise of cell phones.”
Shifting to the reasonableness of the NSA queries...
And this warning at the end...
Concluding with a warning, Judge Leon says: “I fully expect that during the appellate process, . . . the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld.” Should the government not heed this, the district court judge says that he won’t receive that news well, and might impose collateral sanctions as a result.
Much More: http://www.lawfareblog.com/2013/12/dont-miss-the-footnotes-judge-leons-opinion-in-klayman-section-215-collection/
