Privacy SOS

A deeper look at the Klayman decision

Guest post by ACLU of Massachusetts staff attorney Jessie Rossman

You probably already know that yesterday, a federal judge ruled that the Government’s wholesale collection and querying of our phone record metadata likely violates the Fourth Amendment. Here are three important things you may not know about the opinion.

First, Judge Leon ruled that the plaintiffs have standing to challenge the Government’s collection of data even though they are Verizon Wireless subscribers rather than Verizon Business customers. To challenge a government program in court, plaintiffs need to show that they face a real and imminent injury as a result of that program. Here, the Government argued that the plaintiffs did not to do so because the FISC order released in April only stated that the NSA collected metadata from Verizon Business Network Services. As Judge Leon explained, “the Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint).”

But the Judge didn’t buy it. He used the Government’s own arguments to conclude that such a limited collection simply wouldn’t make any sense: “virtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism – in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers.”

Second, Judge Leon ruled that the plaintiffs are also able to challenge the Government’s querying of the collected metadata. This is important because the plaintiffs could not show any direct proof that the Government had conducted queries involving their phone numbers. Once again, however, the Judge used the Government’s own language to determine that everyone’smetadata is analyzed. Citing the Government’s declarations, the Judge explained that whenever the NSA queries a foreign phone number “its system must necessarily analyze metadata for every phone number in the database by comparing the foreign target number against all of the stored call records to determine which U.S. phones, if any, have interacted with the target number.”

Taken together, these holdings would open the door for any individual who owns a cell phone under contract with the three largest carriers to challenge the Government’s program to collect and query phone record metadata.  They also undercut the Government’s ability to hide its programs from judicial review. Under Judge Leon’s reasoning, the Government can no longer say one thing to justify a program only to make a contradictory statement in an attempt to prevent a plaintiff from being able to challenge that program.  When the Government says a surveillance program is comprehensive, the court should take them at their word and assume that everyone is affected.

Third, the Judge confirmed that the Government cannot unilaterally destroy our subjective expectations of privacy. To raise a Fourth Amendment claim, plaintiffs must show that they have both an objective and subjective expectation of privacy in the item or data that was searched. Here, the Judge stated that he had no reason to question the plaintiffs’ allegations that they held a subjective expectation of privacy in their telephone metadata. He went on to explain, however, that if they had lacked a subjective expectation of privacy in such information, he “would likely find that it is the result of ‘condition[ing] by influences alien to well-recognized Fourth Amendment freedoms.’” He described further

The point is, however, that the experiences of many Americans – especially those who have grown-up in the post-Smith, post-cell phone, post-PATRIOT Act age – might well be compared to those of the ‘refugee from a totalitarian country unaware of this Nation’s traditions [who] erroneously assume[] that police were continuously monitoring’ telephony metadata. Accordingly, their ‘subjective expectations obviously could play no meaningful role in ascertaining . . . the scope of Fourth Amendment protection,’ and ‘a normative inquiry would be proper.’

In other words, the Government cannot trample our Fourth Amendment rights for years and then claim that such behavior is constitutional because the people now expect such violations to occur. As Judge Leon made clear, the Fourth Amendment continues to provide protection when it is the Government’s repeatedly unlawful actions that caused us to lose our subjective expectations of privacy.

Judge Leon lamented “I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast” at the Government’s metadata collection program. In contrast, James Madison would no doubt find much to applaud in Judge Leon’s decision. 

© 2021 ACLU of Massachusetts.