In Finding NSA Search Constitutional, Clapper Gets What Klayman Missed

, The Legal Intelligencer


Leonard Deutchman

The government took steps to minimize unneeded searches of the data, notwithstanding that the subscribers had no Fourth Amendment right of privacy in that data.

Finally, citing to three instances in 2009 in which the data collected by the program helped thwart planned terrorist attacks, the court noted that these efforts resulted in an effective program.

The Opinion

The court was acutely aware of what it referred to as the "natural tension between protecting the nation and preserving civil liberty." On the one hand, had the program been in place before Sept. 11, "because it collects everything," it would have flagged a key call and thus that tragedy could have been avoided. On the other hand, such a program, "if unchecked, imperils the civil liberties of every citizen," as the metadata, if "plumbed," can "reveal a rich profile of every individual as well as a comprehensive record of people's associations with one another."

The court pointedly rejected the ACLU's position that the program intrudes into an area protected by the Fourth Amendment because the data collected can reveal that "rich profile." The court noted that analysis itself requires "legal justification" additional to that needed to gather the data, that even with that justification, analysis of the data was confined to the three hops and still "subject to rigorous minimization procedures" to protect privacy. Finally, it made the obvious point that, even with all of that analysis, the government still will not know who any of the users are unless and until it obtains, under separate legal process, subscriber information.

Moreover, and in contrast with the Klayman court, the Clapper court noted that the potential dangers of the program did not create for the telephone users a Fourth Amendment right of privacy that otherwise did not exist.

Pointing to Smith v. Maryland, 442 U.S. 735 (1979), which held that users had no "legitimate expectation of privacy" regarding the telephone numbers they dialed because they knowingly gave that information to telephone companies when they dialed a number, and numerous other cases with the same holding regarding other business records that contain information that individuals involved in the business transactions would consider private, such as bank records or records given to an accountant, the Clapper court found that the case law overwhelmingly rejected the ACLU's position.

Addressing Klayman specifically, the court noted that while "people may 'have an entirely different relationship with telephones than they did'" when Smith was decided, that change "did nothing to change what telephony metadata is or a person's right to privacy in it."

The court rejected not just Klayman's holding but also its reasoning that because Smith and all of the cases following it came from "simpler" times, Smith had to be jettisoned. It noted that while Justice Sonia Sotomayor's concurring opinion in United States v. Jones, 132 S. Ct. 945 (2012), upon which the ACLU and Klayman relied, rejected Smith, the opinion of the court in Jones rested on far different grounds and did not overrule Smith, while Sotomayor's concurrence was one of two concurring opinions "grappling with how the Fourth Amendment applies to technological advances." Citing to Agostini v. Felton, 521 U.S. 203 (1997), the court observed that the lower courts should follow precedent and not guess at whether and how the Supreme Court will overturn it.

The court recognized that the ACLU's concerns were "far from trivial," as there was, "understandably, a deep-seated uneasiness and apprehension that" the program could "be used to intrude upon cherished privacy of law-abiding citizens." These considerations, however, did not rise to a constitutional concern, in this instance and for the reasons discussed. Instead, they should be, and are being, addressed by the other branches of government.

Striking a Balance

Clapper evinces a far better understanding than does Klayman regarding not simply the Fourth Amendment but how to apply, and respect, Supreme Court precedent, the balance that must always be made when protecting both lives and civil liberties, and the roles that all three branches of government must play in striking that balance. The challenge for all three branches has always been to apply traditional principles to new and unforeseen circumstances. The rush by plaintiffs in Klayman and Clapper to have the courts decide the issue is neither constitutionally sound nor wise. 

Leonard Deutchman is vice president and general counsel of LDiscovery LLC, a firm with offices in New York City, Fort Washington, Pa., McLean, Va., Chicago, Atlanta, San Francisco and London that specializes in electronic digital discovery and digital forensics.

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