Earlier this summer the ACLU filed a lawsuit challenging the constitutionality of the NSA’s collection of telephony metadata under Section 215 of the PATRIOT Act. This is one of many cases this fall that we are tracking closely. On Tuesday, several filings were made by the parties, which are of interest to our readers who may be following the proceedings.
The government made a filing in opposition to the plaintiff’s motion for a preliminary injunction in the case of ACLU v. Clapper. Among its several points, the government argues that the telephony metadata program does not exceed the scope of Section 215:
Section 215 authorizes the FISC to issue an order for the “production of any tangible things” upon application by the FBI “showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized [counter-terrorism] investigation” 50 U.S.C. § 1861(a)(1)(A), (b)(2)(A). Plaintiffs maintain that the NSA’s bulk collection of telephony metadata disregards this requirement. But since May 2006, fourteen separate judges of the FISC have concluded on thirty-four occasions that the FBI satisfied this requirement, finding “reasonable grounds to believe” that the telephony metadata sought by the Government “are relevant to authorized investigations … being conducted by the FBI … to protect against international terrorism” . . . Congress assigned the FISC the responsibility of making relevance determinations under Section 215, and Plaintiffs have not explained how the FISC has exercised that authority in a way, not simply that they object to, but that Congress did not intend.
Predictably relying on Smith v. Maryland (and echoing arguments made by Orin Kerr in earlier posts here on Just Security), the government argues that the NSA program does not amount to a “search” under the Fourth Amendment and that “Smith directly applies here to the collection of telephone numbers and other telephony metadata that subscribers voluntarily turn over to providers.”
Also on Tuesday, the ACLU made a filing in opposition to the government’s motion to dismiss. The ACLU, relying on the shadow majority in Jones—as Jennifer Granick did in her earlier exchange with Orin Kerr, argues that the NSA program is a search under the 4th Amendment:
[T]he government’s reading of Smith fails to account for Jones and a host of Supreme Court cases recognizing that in sharing information with the public or a third party, individuals do not necessarily surrender their expectation of privacy . . . These cases confirm that an individual’s expectation of privacy in information does not hinge simply on whether she has shared it with another person. Were it otherwise, even the contents of one’s phone calls or email would be constitutionally unprotected, as both are shared with third parties.
We will continue to watch ACLU v. Clapper closely as the proceedings continue, and keep you informed of the latest in the case.