Can judiciary rein in NSA?

Recent rulings by federal district courts are a reminder of the judiciary’s role in checking government overreach.

The legal landscape may change significantly now that judges are beginning to examine the legality of NSA's surveillance programmes [EPA]

Two recent decisions by federal district court judges in lawsuits challenging the bulk data collection by the National Security Agency (NSA), provide radically different visions of the judiciary’s potential role as a check on the abuse of government power in an age of “terrorism”.

In Klayman v Obama, Judge Richard J Leon, who sits in Washington DC, ordered that the government cease collecting metadata on the personal calls of the two plaintiffs in the case, and that it destroy their calling history records. Leon’s conclusion that the government’s bulk data collection programme under section 215 of the USA PATRIOT Act is likely unconstitutional, signals a potential reversal of the judiciary’s prior deference on national security surveillance since 9/11.

By contrast, in ACLU v Clapper, Judge William H Pauley III, who sits in Manhattan, subsequently held that the same bulk data collection programme was lawful and dismissed a challenge brought by the ACLU. Pauley concluded that the programme serves vital national security interests and did not infringe on the plaintiff’s constitutional privacy or free speech rights.

Both decisions reflect the impact of the disclosures of former NSA contractor Edward Snowden. Previous lawsuits challenging the government’s expanded surveillance powers since 9/11 have largely failed to get out of the starting gate, with courts concluding that the plaintiffs lacked standing because they could not demonstrate they actually had been subject to surveillance.

Impact of Snowden leaks

Most notably, in 2012 the Supreme Court ruled in Clapper v Amnesty that the plaintiffs lacked standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA) that allowed dragnet surveillance of US citizens’ international communications. The Court found that the plaintiffs’ claims that their own communications had been intercepted were too speculative and thus did not provide a basis for a legal challenge to the government’s bulk data collection programme.

The Snowden disclosures led both Leon and Pauley to reject the government’s contention that the plaintiffs in the two cases – all Verizon subscribers (and thus covered by the FISA court order approving telephony metadata collection) – had shown only a theoretical possibility that the NSA had swept up their telephony metadata.

As a result, both judges found the plaintiffs had standing. However, in addressing whether the bulk data collection programme is actually lawful, the two decisions were night and day.

The most important part of Judge Leon’s decision is his conclusion that the Constitution’s Fourth Amendment, which protects individuals against unreasonable searches and seizures, applies to the government’s collection and analysis of bulk data.  

The US government had argued that under controlling Supreme Court precedent, individuals have no Fourth Amendment-protected privacy interest in information voluntarily given to a third-party, such as a telephone company. The government relied principally on Smith v Maryland, a Supreme Court decision from 1979 holding that the police did not need a warrant or court order to install a pen register on the phone of a robbery suspect, allowing the police to ascertain the numbers dialled. The suspect, the Court explained in Smith, had no reasonable expectation of privacy in numbers dialled from his phone because he voluntarily transmitted them to his phone company, and because it is generally understood that phone companies maintain such information in their business records. For similar reasons, the government now urges, individuals have no reasonable expectation of privacy in the information the government obtained from phone companies in its bulk telephony metadata collection programme.

Panel calls for limits on US surveillance

Fourth Amendment protections

Judge Leon found the government’s argument unpersuasive. He relied partly on the Supreme Court’s recent decision in United States v Jones, which found that the installation of a GPS tracking device in a vehicle without a warrant violated the Fourth Amendment. Jones, Leon argued, demonstrates how the quantity and nature of the information obtained by the particular government surveillance activity can affect the constitutional analysis. The “almost Orwellian-technology that enables the Government to store and analyse the phone metadata of every telephone user in the United States”, Leon wrote, “is unlike anything that could have been conceived in 1979”, when Smith was decided. The government today not only gathers vastly more data, he explained, but also can learn far more about a person from that data, as the numbers a person has called can reveal an “entire mosaic” about his or her life. 

Further, Leon refused to defer to the government’s characterisation of the programme’s purpose and effectiveness. In particular, Leon found no instance in which the government had stopped an imminent terrorist attack by querying the NSA’s vast database and signalled his “serious doubts” about the programme’s utility. 

Judge Pauley, by contrast, adhered to a rigid formalism in evaluating the programme. He ruled that the Fourth Amendment did not limit the government’s bulk data collection activities, finding no meaningful difference between the single pen register in Smith and the new reality of big data. Pauley, moreover, deferred to the government’s assessment of the programme’s effectiveness, which he credited with helping prevent several terrorist attacks.

Greater oversight needed

Ultimately, Leon’s decision is more persuasive, as it seeks to give meaning to the Constitution’s protections of individual liberty amid rapid changes in technology. His decision not only recognises the importance of extending Fourth Amendment protections to the government’s bulk data collection, but also demonstrates a willingness to question the government’s self-serving assessments that such data collection necessarily protects national security. Leon’s ruling thus underscores the potential of the judiciary to subject government surveillance to meaningful scrutiny, particularly where the process is open and adversarial, as opposed to the one-sided, closed hearings before the FISA court, in which judges consider only arguments from the government, and operate in secret.

Judge Pauley’s deference to the government is particularly striking in light of the recent recommendations by President Obama’s own panel of outside advisers. In its 300-page report, the expert panel urged greater oversight of and checks on the government’s bulk data collection programme. It also found that the programme was “not essential to preventing attacks”, and provided information that “could readily have been obtained in a timely manner using conventional [court] orders”.

Both lower court rulings are now on appeal, and may ultimately reach the Supreme Court. While the outcome is uncertain, the legal landscape could change significantly now that judges are examining the legality of the NSA’s bulk data collection activities, and not dismissing cases at the outset for lack of standing. If nothing else, judicial review will enhance the already mounting public and political debate about the critical liberty and privacy issues raised by the government’s far-reaching surveillance activities undertaken in the name of national security.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System.