NSA Data Sweep Likely Violates Privacy

The NSA’s massive collection of phone data is likely an unreasonable search under the Fourth Amendment because it violates an individual’s expectation of privacy, a federal judge found.

The ruling granted a request by two plaintiffs to enjoin the government through the National Security Agency from collecting their phone records, including metadata.  However, the judge stayed his order to allow the government to appeal “in light of the significant national security interests at stake.”

The 68-page opinion found that the NSA daily collects in bulk metadata on most telephone calls in the United States and compiles the data from various carriers into one data base, which it then later searches for connections to potential terrorists.  The NSA searches the data base (which contains up to five years of data) starting with a “seed” telephone number, plus two “hops” from the seed when it suspects a potential threat.  If one assumed that the seed number called 100 numbers over the last five years and the two hops also called 100 numbers, the result would be that one million numbers would have their data analyzed based on one seed number, the court found.

 

“The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of the metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approve of the investigative targets,” the court wrote.

The government argued that collecting the metadata did not violate the Fourth Amendment because in 1979 the Supreme Court in Smith v. Maryland found there is no expectation of privacy in phone records.  “The main thrust of the Government’s argument here is that under Smith, no one has an expectation of privacy, let alone a reasonable one, in the telephony metadata that telecom companies hold as business records; therefore, the Bulk Telephony Metadata Program is not a search,” the judge wrote.  “I disagree.”

The court found that in Smith the request was for a pen register for only a matter of days, but the NSA program contains historical records for five years and “there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!”

The court said the landscape for the use of phones has changed significantly since 1979.  “Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.”  The “rapid and monumental shift towards a cell phone-centric culture means that the metadata from each person’s phone ‘reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. . . . Records that once would have revealed a few scattered files of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of a person’s life.”  As a result, the court stated, “I think is it more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable.”

Klayman et al. v.Obama, D.C. Cir. 2013, No. 13-0851