Ever since the 2005 revelations of Mark Klein (yes, that long ago) that the NSA was intercepting phone traffic on a mass basis, successive presidential administrations have employed every possible species of legal trickery to prevent a constitutional challenge to the program on the merits.
The key question is, Why? Surely, if either Bush or Obama believed their rhetoric that what they’re doing is Constitutional, they would welcome the courts’ review, which would surely result in a thumping endorsement of bulk metadata spying, probably based on the 1979 Supreme Court case Smith v. Maryland, which ruled the collection of much more limited metadata to be constitutional.
The actions of both administrations suggest otherwise. Their problem was always that the plain text of the Fourth Amendment didn’t seem to support their position. Shall we take a look at it again? I never get tired of it.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, except upon probable cause, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In order to be “reasonable”, a “search” must have a warrant, which is supported by “probable cause”, and which “particularly describes” the “place” to be searched.
So let’s say, then, just hypothetically, that you set up a massive phone data interception program without bothering with a warrant at all, and got Congress to retroactively immunize anyone participating in it from prosecution (hey there, W!), or that your response to the existence of this program when you got into office was to get a secret court to issue a secret ruling approving a warrant allowing the “seizure” of all phone metadata for all calls in the United States (howdy, BarackO!). How would a reasonable court interpret the requirements for probable cause, or for particularly describing the “persons or things” to be seized, for a program like that?
Well, first of all, you’d classify absolutely everything to do with the program (2002). With luck, the public would never get to hear about it, and you’d be all set. You’d lean on a compliant media to suppress the story (2004), at least till after you were safely re-elected. Then, so long as some whistleblower didn’t come along (2005), you’d be all set.
Then, even if a whistleblower or two had come along, you’d argue with every suit that was brought that the plaintiffs lacked standing (2006-12), because they couldn’t prove that they were targets of the program unless the government revealed that fact. And if, by some piece of bad luck, the government did accidentally reveal it, say by mistakenly mailing stuff to the plaintiffs that proved they were under surveillance (2006), then the government could get the court to forbid the plaintiffs’ attorneys to take any notes on that evidence, effectively precluding any challenge. Hey hey! We’re still OK! Hang tight, fellas, and don’t change a thing!
By April of 2012, the government was more or less sitting pretty. The Supreme Court had dismissed the last surveillance suit on standing grounds. It looked like no-one was ever going to be able to hold them accountable through the federal courts, and Congress, with a few honorable exceptions, didn’t seem interested in doing it either because Terror. It was at this bleak point that we founded Digital Fourth, to try to achieve inroads into the surveillance state at the state level that seemed impossible in the short term at the federal level.
Then Edward Snowden released the FISA court’s “mass warrant” ruling for Verizon. And all hell broke loose, because everybody in the United States now had standing.
One of the first people to sue, within two weeks of Snowden’s first revelations, was colorful conservative public interest litigant Larry Klayman, founder of Judicial Watch. He sued both the government and the phone companies. Yesterday, U.S. District Judge Richard Leon partially granted a preliminary injunction preventing NSA phone metadata collection on Klayman and four other plaintiffs, though, given the novelty of the constitutional issues, he stayed his ruling for the duration of the case. The opinion includes some remarkable language, the strongest yet by any federal judge on the unconstitutionality of the NSA’s activities:
“The question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval. For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.
Bear in mind, this isn’t an actual ruling against the NSA’s programs. Judge Leon here is merely allowing the case to proceed, and strongly signaling how he will eventually rule. Like John the Baptist, he is merely making straight the path for the coming of the ruling that will bring the NSA finally to heel. Even when he eventually rules in Klayman’s favor, his ruling will inevitably be appealed, and ultimately the NSA will modify its actual activities only after a ruling by the Supreme Court. If the Amnesty case is anything to go by, and given how hard the government and the telecommunications companies will fight it, we should expect that ruling sometime around 2019?
Verizon, horrified by the Judge’s actions (not, apparently, by the NSA’s…), rapidly reconfigured their arguments. They had been intending to ask Judge Leon to dismiss the plaintiffs’ Fourth Amendment claims, but it doesn’t look like he’s going to. So, instead, they are reduced to the “just following orders” defense: that if they were obeying a court order to provide that information – not that they’re saying they did, mind – Verizon would be immune from liability for any alleged privacy violations.
The interesting legal issue here is that (we may presume) Verizon was presented with the court order previously disclosed by Edward Snowden. It was an actual order issued by an actual court. In that sense, Verizon has a strong case that it had a legal obligation as a company to comply. However, that’s not the end of the story. Companies, and citizens, are not at the absolute command of the government; the Constitution limits the kinds of command the government may make of companies and citizens under its jurisdiction. Not all telecommunications companies have dealt with this issue as Verizon has. This “warrant” was plainly unconstitutional, and as we’ve seen above, the government’s extreme strategies in thwarting the possibility of a ruling of the merits only bolster the public impression of its unconstitutionality. How could such an order, for every single phone call’s data, ever satisfy the particularity requirements of the Fourth Amendment? Verizon’s lawyers should have been aware that that was the case.
When faced with an unconstitutional order, Verizon had in fact several options. They could have pushed back, arguing that they also had a legal obligation to their customers to protect their privacy, and could have asked the FISC to make the ruling more specific. They could have argued that to not tell their customers about the order was an unconstitutional prior restraint on speech, and therefore could have disclosed the order in general terms to the public to build a case for noncompliance. At the extreme, they could have done as Lavabit and SilentCircle have done, and shut down rather than comply with an unconstitutional court order. They had, in fact, significant leverage in this interaction with the government, because they had a very substantial share of the total universe of phone metadata in the United States. That they chose not to exercise that leverage in any way, and simply and silently complied, shows that as far as the public record goes, they had no desire whatsoever not to comply.
Over at Lawfare, which regularly presents an intelligence-agencies-friendly perspective on the complex legal issues surrounding surveillance and war, Paul Rosenzweig sneeringly denounced Judge Leon’s opinion as “prolix, and not of long duration”. Benjamin Wittes, on the same site, makes a political, not legal, argument, saying,
Are five justices really ready to shut down a major intelligence program that administrations of both parties have insisted [Ed. …without presenting any evidence that it is true, by the way…] represents a crucial line of defense against terrorism? Judge Leon can brush away, as he does in this opinion, the suggestion that the 215 program plays an important role in the national defense. But he does so knowing that he is staying his own ruling and that it will only go into effect if higher authorities agree with his analysis. In other words, if this opinion ever has legs, Judge Leon will have set table, but he will not have served the food, and nobody will blame him if the meal goes off poorly. But the justices will not have that cover. If they agree with Judge Leon, this program will shut down—and they will be accountable. Are there really five votes to do that? Leaving aside the doctrinal questions, I doubt it. When everything’s said and done, I can’t count five votes on the Supreme Court to bear that kind of responsibility for the next bad thing that might happen.
Wittes may conceivably be right that it will take political courage to restrain the NSA. Even if there’s no evidence that X helps, it’s still a mental leap to get rid of X, which is why we have, say, the F-22 fighter program. But we don’t yet know what kind of Supreme Court we’ll have five years hence, and it’s not easy to predict how the Justices will rule based on simple proxies like party affiliation. This is a topic where the Justices are all over the map, and even with today’s Court, I can easily see a five-Justice majority composed of the dissent in Maryland v. King (Scalia, Sotomayor, Kagan and Ginsburg), plus Alito or Thomas, who both have a mixed record on Fourth Amendment issues.