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Courts Weigh in on NSA Bulk Telephony Metadata Program




by:
Lawrence R. Freedman
Ari Z. Moskowitz
Edwards Wildman Palmer LLP - Washington Office

 
January 7, 2014

Previously published on January 2014

In December, two federal courts weighed in on the NSA’s bulk telephony metadata collection program, under which the agency collects from U.S.-based telephone companies, and stores, the metadata of telephone calls - such as numbers dialed and received and the length of calls. The courts came to opposite conclusions, with Judge Leon of the United States District Court for the District of Columbia ruling that the program is unconstitutional under the Fourth Amendment and Judge Pauley of the Southern District of New York upholding the program against a Fourth Amendment and First Amendment challenge.

The primary Supreme Court precedent under which both courts analyzed the program is Smith v. Maryland, a case in which the defendant argued that the police violated the Fourth Amendment when they installed a pen register on the telephone company’s premises that recorded the phone numbers the defendant dialed. The Supreme Court held that this was permissible under the Constitution because a person has no expectation of privacy in the information they voluntarily share with a third party - in that case, sharing phone numbers dialed with the telephone company. Judge Pauley reasoned that until the Supreme Court overturns Smith v. Maryland it is within the bounds of the Fourth Amendment for the government to obtain bulk telephony metadata from the telephone company.

Judge Leon argued that Smith v. Maryland involved a situation - the collection of a single individual’s telephony metadata for a matter of days - so different from the ongoing bulk collection of metadata by the NSA that Smith v. Maryland is inapplicable to the present circumstances. He argued that the 1979 court in Smith could not have conceived of the NSA’s current capabilities and because of the ubiquity of mobile phones, what the government can learn from metadata is vastly broader than what it could learn from the same information in 1979. Judge Leon also cited the 2012 case of U.S. v. Jones, in which several Supreme Court Justices questioned the continuing relevance of Smith when they found that it was a violation of the Fourth Amendment to install a GPS tracking device on a suspect’s car to monitor movement over a 4 week period. For these reasons, Judge Leon found that Smith was inapplicable and people have a reasonable expectation of privacy in their telephony metadata such that the bulk collection program violates their Fourth Amendment rights.

Judge Pauley, whose opinion was rendered shortly after Judge Leon’s, noted that Judge Leon came to a different conclusion. However, he reasoned that until the Supreme Court overturns Smith, precedent dictates that individuals have no reasonable expectation of privacy in their telephony metadata. A notice of appeal of Judge Leon’s opinion was filed on January 3, 2014 and an appeal of Judge Pauley’s opinion is expected as well.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Lawrence R. Freedman
Ari Z. Moskowitz
 
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