On December 16, Federal District Judge for the District of Columbia Richard Leon held the National Security Administration’s collection of telephone metadata to be an unconstitutional invasion of privacy under the Fourth Amendment. Previous challenges to governmental collection of telephone metadata have met with failure, and the ruling marks the first time a federal court has held the NSA metadata collection program to be unconstitutional under the Fourth Amendment.
The existence of the secret NSA program was revealed earlier this year in leaks by former NSA systems administrator Edward Snowden.
In his 68-page opinion, Judge Leon offered his reasons for granting a preliminary injunction and entering an order that “bars the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with” the plaintiffs’ cell phone accounts.
The court rejected the applicability of a prior ruling from United States Supreme Court, Smith v. Maryland, 442 U.S. 735 (1979), which held that there was no reasonable expectation of privacy – and hence no Fourth Amendment issue – with respect to the official collection of dialing, routing, addressing or signaling information associated with a residential telephone, information that is anyway disclosed to and part of records maintained by the telephone company. The government, defending the NSA’s collection of metadata, argued that Smith should be regarded as controlling, on-point authority.
While seemingly prepared to acknowledge the similarity between the type of data collected in Smith with the type of data collected by the NSA (“[a]dmittedly, what metadata is has not changed over time”), Judge Leon purported to distinguish Smith on four grounds:
– The “short-term, forward-looking (as opposed to historical), and highly-limited” data collection in Smith versus the historical (“five years”) and longer term retention of data by the NSA.
– The “one-time, targeted request for data regarding an individual suspect” in Smith versus “the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program.”
– “[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United Stated in unlike anything that could have been conceived in 1979.”
– The “nature and quantity of the information contained in people’s telephony metadata is much greater” than it was in 1979, when Smith was decided.
Rejecting Smith, the opinion labelled the collection and retention of telephone metadata as the “indiscriminate” and “arbitrary invasion” of citizens’ “personal data” subject to Constitutional protection.
Finally, the court rejected the government’s claims of a substantially overriding interest in using the metadata to detect and prevent terrorism, citing the “utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics.”
The judge stayed the order pending a nearly certain appeal by the government.
Written by Michael Young, Associate, Technology and Privacy Group | Alston & Bird LLP