Earlier this week, I looked at the D.C. District Court’s opinion in Klayman et al., v. Obama et al., in which the Court granted Plaintiffs’ motion, in part, for a preliminary injunction. Today, that analysis continues with a closer look at the third, and possibly most important part of the Court’s opinion.
The Court found that Plaintiffs have a substantial likelihood of success on the merits of their Fourth Amendment claim in issuing the requested injunction against the Government’s metadata collection activities. In reaching this conclusion, the Court began by addressing the threshold issue of whether Plaintiffs have a reasonable expectation of privacy over their telephony metadata. As one might suspect, this inquiry began with a look at the United States Supreme Court opinion of Smith v. Maryland where the Court found the defendant had no reasonable expectation of privacy over the numbers dialed from his telephone because the numbers were voluntarily transferred to a third-party phone company, which kept the numbers as part of its business records.
Pursuant to this rationale, the National Security Agency’s (NSA) Bulk Telephony Metadata Program would not constitute a “search” under the Fourth Amendment. However, the Court in Klayman disagreed and, furthermore, found that Smith doesn’t apply under these circumstances.
The question before me is not the same question that the Supreme Court confronted in Smith. . . . Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances–the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies–become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.
The Court named four key reasons that Smith did not apply in this case. First, in Smith, without obtaining a court order, police installed a pen register to monitor the defendant’s phone calls. However, the D.C. District Court explained, the pen register in that case was operational for a limited period of time (approximately thirteen days) and there was no indication that the government expected to retain those records after its investigation closed. The NSA program, on the other hand, “involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever.”
Second,
[T]he relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. . . . It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it’s quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.
Third, according to the Court the technology employed by the Government to conduct its surveillance activities today could not have been imagined by the Supreme Court thirty-four years ago. And, lastly, the nature and quantity of the information contained in citizens’ telephony metadata is much different today than it was in the 1970s. The Court explained:
Cell phones have morphed into multi-purpose devices. They are now maps and music players. They are cameras. They are even lighters that people can hold up at rock concerts. They are ubiquitous as well. Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send ‘text messages,’ they wrote letters and attached postage stamps.
While the Court admitted that what metadata is has not changed since Smith, the information the Government can gain about a person’s life from monitoring telephony metadata has changed dramatically.
Based on these reasons, the Court found Plaintiffs have a significant likelihood of success in showing there is a reasonable expectation of privacy and, therefore, showing that a search occurred. Next, looking to whether there is a significant likelihood that plaintiffs will succeed in showing the searches are unreasonable, and noting that warrantless searches are per se unreasonable, with certain exceptions, the Court “balance[d] the [plaintiffs’] privacy expectations against the [G]overnment’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” As previously explained, the Court found that Plaintiffs have a “very significant expectation of privacy in an aggregated collection of their telephony metadata” and, therefore, the Court’s analysis of this issue turned on the “nature and immediacy of the [G]overnment’s concerns and the efficacy of the [search] in meeting them.”
On this point, the Court explained:
I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power’ would be aghast.
In other words, the Court determined that Plaintiffs, in fact, have a significant likelihood of success in showing the searches are unreasonable. This finding, coupled with the findings that Plaintiffs will suffer irreparable harm absent judicial intervention and that public interest and potential harm to other interested parties, weighed in favor of injunctive relief.
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