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Privacy and Telephony Metadata

  • October 2, 2014
  • Clayton Rice, Q.C.

On June 5, 2013, the British newspaper The Guardian reported the first of several leaks of classified material from Edward Snowdon, a former National Security Agency contractor, which revealed multiple U.S. government intelligence collection and surveillance programs. The NSA bulk telephony metadata program has come under scrutiny since the Snowdon leaks. One of the legal issues is whether the program violates the Fourth Amendment. As litigation proceeds through the American judicial system two conflicting opinions have emerged.

The telephony metadata program permits the NSA to access metadata associated with telephone calls including the number called from; the number called to; the date, time and duration of the call; other session-identifying information such as the International Mobile Subscriber Identity number; trunk identifier; and, any telephone calling card number.

On December 16, 2013, Judge Richard J. Leon stated in Klayman v. Obama, 957 F.Supp.2d 1 (2013), at p. 42: “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 abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”

Judge Leon described the technology, at p. 33, as “almost Orwellian” and expressed serious doubts about the efficacy of the program, at p. 40: “Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three ‘recent episodes’ cited by the Government that supposedly ‘illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack’ involved any apparent urgency.”

The court ruled that Smith v. Maryland, 442 U.S. 735 (1979), which held that telephone metadata does not attract Fourth Amendment protection, did not apply to the NSA program. Judge Leon described the metadata in Smith as “short-term forward looking capture” and that of NSA as “long-term historical retrospective analysis”. Referring to the vastness of the NSA surveillance and “the evolving role of phones and technology”, Judge Leon stated that the Fourth Amendment must adapt to the digital age, at p. 31: “When do present-day circumstances – the evolution 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.”

However, a contrary conclusion was reached eleven days later in American Civil Liberties Union v. Clapper (No.: 13-3994, S.D. New York). In its Memorandum of Law the ACLU argued that this kind of surveillance hands the government a comprehensive record of Americans’ familial, political, professional, religious and intimate relationships, at p. 27: “For example, certain telephone numbers are used for a single purpose, and their use can reveal a person’s religion, use of a phone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes. Aggregating metadata across time can yield an even richer repository of personal and associational details.”

On December 27, 2013, Judge William H. Pauley dismissed the case relying on Smith to conclude that telephone users do not have a reasonable expectation of privacy in information they provide to third parties such as telephone companies. (See: ACLU v. Clapper, Memorandum & Order (No. 13 Civ. 3994, S.D. New York) at p. 39ff)

On September 2, 2014, the ACLU’s appeal in Clapper was argued before Judges Gerald E. Lynch, Vernon S. Broderick and Robert D. Sack of the U.S. Court of Appeals, Second Circuit, in New York City. Alex Abdo, Staff Attorney for the ACLU, argued in rebuttal that Smith is distinguishable in that under the metadata program the government is acquiring information indefinitely and has moved from target to dragnet. The oral argument may be viewed online at c-span.org.

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