It’s been some time since we’ve discussed developments related to the Section 215 telephony metadata program. More attention of late has been focused on Section 702 authorities and the PCLOB’s recent report on programs under that authority.  However, readers following the ongoing Section 215 litigation will be interested to know that late on Monday, the DOJ filed its opening brief (full text) in the D.C. Circuit in its appeal of the lower court’s decision in Klayman v. Obama.  Here are a few notable excerpts from the brief:

Arguing the plaintiffs lack standing to challenge the Section 215 program:

“Plaintiffs have not established standing to sue or that they would suffer irreparable harm absent preliminary relief. There is no evidence that the government has ever collected any information about plaintiffs’ calls under the Section 215 telephony-metadata program. Plaintiffs Klayman and Strange aver that they are subscribers of Verizon Wireless, but provide no evidence that the government has ever acquired any business records from that company under the Section 215 program. The district court relied on the fact that the government has acknowledged that, for several months in 2013, it collected business records containing telephony metadata from Verizon Business Network Services. But that is not the same entity as Verizon Wireless, and plaintiffs and the district court could only speculate about the identities of carriers who have provided in the past, and are providing now, business records under the Section 215 program.”

Arguing that Smith v. Maryland controls:

“The Supreme Court has rejected the premise of plaintiffs’ Fourth Amendment argument, holding that there is no reasonable expectation of privacy in the telephone numbers a person dials in order to place a telephone call. In Smith, the Supreme Court held that the government’s recording of the numbers dialed from an individual’s home telephone, through the installation of a pen register at a telephone company, is not a search under the Fourth Amendment. Except for the district court below, every other court to have decided the matter—including numerous decisions of the Foreign Intelligence Surveillance Court as recently as June of this year—has correctly relied on the holding of Smith to conclude that the acquisition from telecommunications companies of business records consisting of bulk telephony metadata is not a search for purposes of the Fourth Amendment.”

And then arguing that if Smith v. Maryland does not control, the program is nevertheless constitutional under the “special needs doctrine”:

“If obtaining bulk telephony metadata from the business records of telecommunications companies were a Fourth Amendment search, it would nevertheless be constitutionally permissible. The Fourth Amendment bars only unreasonable searches and seizures, and the Section 215 telephony-metadata program is reasonable under the standard applicable to searches that serve ‘special needs’ of the government.  The national security and safety interests served by the Section 215 program are special needs of the utmost importance.

The government has shown, and the Foreign Intelligence Surveillance Court has repeatedly concluded, that the Section 215 bulk telephony-metadata program provides an efficient means to identify otherwise-unknown associations (within one or two steps of contact) with telephone numbers and other selectors that are reasonably suspected of being used by terrorist organizations, including connections that retrospective analysis can make evident in calls that occurred before the relevant terrorist connection became known. The Foreign Intelligence Surveillance Court orders authorizing the Section 215 bulk telephony-metadata program authorize the government to retain a historical repository of up to five years’ worth of telephony metadata, cutting across multiple providers, for intelligence analysis purposes that could not be accomplished as effectively, if at all, with more targeted investigative tools, such as probable-cause warrants.”