NY Court Finds NSA Data Gathering Legal

The government’s massive phone metadata gather program is not an unconstitutional invasion of privacy, a New York District Court judge ruled, thus creating a conflict with a Washington, D.C. District Court judge who found the program did violate a person’s right of privacy.

In the order, the New York judge disagreed with his Washington, D.C. counterpart.  In the earlier case, the Washington, D.C. judge found that an individual’s relationship with his telephone changed significantly since 1979 when the Supreme Court found there was no “legitimate expectation of privacy” regarding telephone numbers.  Not so, said the New York judge.  “While some people may ‘have an entirely different relationship with telephones than they did thirty four years ago,’ [citingKlayman], this Court observes that their relationship with their telecommunications providers has not changed. . . . The fact that there are more calls placed does not undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata.”

At issue in both cases is the National Security Agency’s collection of virtually all telephone metadata of all telephone calls in the United States.  The metadata includes the telephone numbers that placed and received the call, the date, time, and duration of the call, and other information.  The NSA then can query the database using “seed” numbers plus the next two hops, that is, the numbers that the seed numbers called or received calls from, as well as the numbers for ingoing and outgoing calls of the second and third tier numbers.  The purpose of the query is to find patterns that might identify terrorists.

In the New York case, the ACLU argued that the “analysis of bulk telephony metadata allows the creation of a rich mosaic:  it can ‘reveal a person’s religion, political associations, use of a telephone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes.”

The New York court found the telephony metadata was a “business record” of the telephone companies and not the person who made the call because the person placing the call “voluntarily conveys” the information to the phone service provider.  The court acknowledged that the NSA program “vacuums up information about virtually every telephone call to, from, or within the United States.”  However, the “collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.”

Finally, the court found there was “no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks,” although the court acknowledged that “there have been unintentional violations of guidelines” designed to protect an individual’s right to privacy.

American Civil Liberties Union v. Clapper, S.D.N.Y. No. 13 Civ. 3994, issued December 27, 2013.