We’ve finally got a transcript from the Nov. 22 hearing in ACLU v. Clapper, the ACLU’s challenge to the NSA’s mass call-tracking program. The transcript is here. Particularly interesting are the exchanges between the Court and the government about the government’s “relevance” theory (see, e.g., pp.48-50); about the government’s “legislative ratification” argument—that is, about its argument that Congress ratified the mass call-tracking program when it reauthorized the Patriot Act in 2010 and 2011 (pp.51-55, 57-59); about the section of the Stored Communications Act that limits the authorities under which the government can collect call records (p. 57); and about the import of the Supreme Court’s decision in U.S. v. Jones (pp.61-64).
On the other side of the ledger, I summed up the ACLU’s statutory argument in my rebuttal (p.70):
[T]o accept the government’s theory of the statute is to accept that Congress used familiar language, the same language that it has used in many other authorities, or similar language to the language it has used in many other authorities, to authorize collection on a truly massive scale, collection far beyond what any court has previously sanctioned, and indeed, far beyond what the government has ever previously proposed. The Supreme Court has admonished many times that Congress doesn’t hide elephants in mouse holes [but] I think that is what the government is proposing here. At the very least, your Honor, this Court should require Congress to say that it wants the government to collect all of this data, if it does indeed want it.
And my colleague, Alex Abdo, summed up one of the ACLU’s key constitutional arguments in an exchange with Judge Pauley (p.24-25):
THE COURT: Accepting . . . that aggregated call data can reveal much more intimate details of a person’s life in just a person’s call records alone, would the search for Fourth Amendment purposes happen when the government merely obtains the call records or when it queries them?
MR. ABDO: I think it would happen at the moment of the collection, your Honor. I think it’s worth noting that the premise of essentially all Fourth Amendment case law has been that an individual’s expectation of privacy is upset by government action when the government obtains information in which that individual has an expectation of privacy. This is in part because the Fourth Amendment creates a private sphere that the government cannot penetrate without sufficient cause. And it’s in part because the Fourth Amendment reflects an historic uneasiness with entrusting to the government vast quantities of information about Americans without individualized determinations of cause.
The implications of the government’s argument to the contrary I think are really without limits. It would allow the government to wiretap and record every phone call in the country, store those calls in a database for future searching if and when a need arose. It would allow the government to photocopy every piece of mail sent in this country and store those photocopies in a database subject to future searching. It would allow the government to demand the membership lists of every organization, including the ACLU, including the New York Civil Liberties Union, and including every American to store for future searching.
So I think it’s important to understand the implications of the government’s argument that collection itself doesn’t implicate the Fourth Amendment. I don’t think there are any cases that stand for that proposition. Moreover, if there were, in fact, such a gaping exception to the Fourth Amendment, you would have expected the government to have run through that exception many years ago. . . .
The Court reserved decision.