In Finding NSA Search Constitutional, Clapper Gets What Klayman Missed

, The Legal Intelligencer


Leonard Deutchman

In American Civil Liberties Union v. Clapper, 13 Civ. 3994 (WHP) (S.D.N.Y. Dec. 27. 2013), the U.S. District Court for the Southern District of New York found constitutional the ongoing program of the National Security Agency and FBI to obtain telephony metadata in bulk from telephone carriers and Internet service providers. In so doing, the court ruled opposite to the U.S. District Court for the D.C. Circuit in Klayman v. Obama, Civ. No. 13-0851(RJL) (D.C. Dec. 16, 2013).

In last month's column, I criticized the Klayman court for its fundamental misunderstanding of a user's privacy rights in the telephony metadata pertaining to his or her telephone calls. The Clapper court, by contrast, understood that those privacy concerns did not rise to constitutional rights, but led to political questions to be settled by Congress and the president. In this month's article, we'll look at Clapper.


The facts in Clapper, unsurprisingly, are the same as in Klayman. The Foreign Intelligence Surveillance Act and the Patriot Act allow the government to obtain telephony metadata as "business records" and "tangible things," respectively, based upon a showing that there were "reasonable grounds" to believe that metadata sought would be "relevant to an authorized investigation ... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."

Under the Bulk Telephony Metadata Program, the government obtained from telecommunications providers, on a daily basis, electronic copies of telephony metadata. The purpose of the program was to track the phones of known terrorists, to see which phones they contacted and which contacted them, so as to identify, at least potentially, terrorist contacts and networks.

The data was provided pursuant to orders issued by the FISA court (FISC), which is composed of Article III judges, and operates in secret under 50 U.S.C. § 1803(c). Over the last 40 years or so, Congress created the FISC and has amended the laws governing it several times, both before and after Sept. 11.

The court noted that "bulk telephony metadata collection under FISA is subject to extensive oversight by all three branches of government." The executive must seek judicial approval from the FISC to perform a collection, and twice a year must provide reports to the House of Representatives and Senate intelligence and judiciary committees.

Those reports must include a review of all orders and significant opinions issued by the FISC. Since the program was initiated, the government has self-reported and addressed numerous compliance and implantation issues. FISC opinions noted how the government addressed concerns raised by the FISC. Throughout this history, running to the present, Congress has continued to reauthorize the sections allowing for bulk telephony metadata collection.

The court also detailed how the NSA searched data only under order of the FISC, and how search order protocols restricted searching to likely pertinent data. Orders direct that the database of collected metadata be queried only "with a telephone number, or 'identifier' or 'seed,' that is associated with a foreign terrorist organization," and that that identifier be selected by "a high-ranking NSA official or one of 20 specially authorized officials" who has determined that there is "reasonable articulable suspicion" that the "identifier is associated with an international terrorist organization that is the subject of an FBI investigation."

The query will yield telephone numbers "in contact with the seed, as well as the dates, times and durations of those calls, but not the identities" of the call participants. The resultant dataset is the first "hop." The second hop is composed of "telephony metadata for the set of telephone numbers in direct contact with any first 'hop' telephone number," and the third hop collects telephony metadata "for the set of telephone numbers in direct contact with any second 'hop' telephone number." The NSA uses the results to locate terrorist networks. It provides to the FBI only the data it believes has any value in counterterrorism analysis, which is a "very small percentage of the total data collected."

The court detailed how all three branches of government have worked to ensure that the program did not overstep its boundaries. The FISC judges provided substantial oversight, with 15 different FISC judges having found the metadata collection program lawful a total of 35 times since May 2006. Congress amended FISA and related laws several times.

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