On Dec. 16, federal judge Richard J. Leon issued a preliminary injunction in Klayman v. Obama, a case challenging the NSA’s bulk collection of phone metadata.  The lawsuit, filed by Washington attorney Larry Klayman, is one of several challenging the NSA surveillance programs made public by Edward Snowden.   The ACLU filed a similar lawsuit a few days later, called ACLU v. Clapper.

After Judge Leon issued his opinion in the Klayman case, the ACLU wrote on its website that “A federal court ruled today that the NSA’s mass call-tracking program violates the Constitution.”

Not quite.  Judge Leon merely granted a preliminary injunction.  Part of the standard for such an injunction is whether the plaintiff has “a substantial likelihood of success on the merits.”  So the most we can say is that Judge Leon, based on the limited record before him, thinks the NSA program is probably unconstitutional.  Also, the injunction, which prohibits the NSA from further collecting and querying telephone metadata, only applies to two plaintiffs (Larry Klayman and Charles Strange) and has been stayed pending the government’s inevitable appeal.

Despite its limited effect, Leon’s opinion has precedential value and is worth a read, if only to see how it tees up this issue for a trial on the merits.  Judge Leon has some entertaining moments, weaving both George Orwell and George Harrison into his 68-page opinion.  (Click here for full opinion)

Let’s take a look at the highlights.

NSA 101

The Background section (pp. 6-23) is a helpful primer on the NSA’s collection techniques, FISC oversight, and the statutory background for each.  Leon takes us through FISA, the Patriot Act, and the judicial review process.  We also get a lot of details, from the affidavits of government officials, on how the NSA collects and queries phone data.

The Fab Three Plus One

The opinion really picks up around page 38, when the Beatles take the stage.   Apparently, the government attorneys suggested that the NSA only collected data from Verizon’s business networking service, and not Verizon Wireless or any of the other major wireless carriers.  Judge Leon isn’t having it.  From footnote 36:

To draw an analogy, if the NSA’s program operates the way the Government suggests it does, then omitting Verizon Wireless, AT&T, and Sprint from the collection would be like omitting John, Paul, and George from a historic analysis of the Beatles.  A Ringo-only database doesn’t make any sense, and I cannot believe the Government would create, maintain, and so ardently defend such a system.

Now, we all love it when federal judges make pop culture references, but let’s give Ringo a break, huh?  Octopus’ Garden?  You Know It Don’t Come Easy?  Judge Leon, I refer you to Thirteen Reasons to Give Ringo Some Respect.

And second, what’s wrong with a good ol’ American band analogy?  Maybe Judge Leon has Britain on the brain – after all, it was UK-based news outlet The Guardian that first published Snowden’s files.   But this is a case of extreme national importance, and the American people deserve to hear their federal judges mock the U.S. government using domestic pop icons.  For example – “I cannot believe the Government would so ardently defend a Kiss collection limited to songs by the guy with the cat face.”  Of course, now I’m on his case.

Going to the Orwell Once Too Often

At page 44, Judge Leon begins to analyze the NSA’s phone metadata collection under Fourth Amendment case law.  From the outset, it’s apparent where his sympathies lie:

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 that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets.

Well when you put it that way, it does sound kind of intrusive.   But what about Supreme Court precedent?   In Smith v. Maryland (1979), the police installed a “pen register” that captured metadata on a suspect’s landline phone.  The Smith Court found that was not a Fourth Amendment “search.”  Judge Leon distinguishes Smith with an interesting argument – that “present-day circumstances” make the 34-year old case inapplicable.   Leon points out that “[t]he Supreme Court itself has recognized that prior Supreme Court precedents and doctrines do not always control in cases involving unique factual circumstances created by evolving technology” (at pp.46-47, n. 46).

Leon’s point is central to this case and any case involving privacy rights and technology.  I raise this issue with students in my business law classes.  How does the law keep up with technological advances?  What about case law that was established before the advances took place?  Does it still have value?  And, if not, what’s the expiration date on legal precedent?

I agree with Judge Leon that the scope of the NSA surveillance program far exceeds that of Smith’s “pen register” collection.  But I’m not so quick to dismiss Supreme Court precedent merely because it comes from a time when a program like the NSA’s was “unlike anything that could have been conceived . . .” or “the stuff of science fiction.”  Courts can, and should, consider how their precedents will apply in 10, 20, even 34 years time.  Why not take judicial notice of science fiction?

Leon calls the NSA’s technology “almost Orwellian.”  George Orwell’s famous dystopian novel 1984 was published in 1949 – thirty years before Smith and almost certainly known to the justices on the Smith court.  So maybe the justices did see the potential for America to become a “surveillance state” where the government put “pen registers” on its citizens’ phones as a matter of course.  Leon puts a lot of store in the notion that cell phones did not exist in 1979, but, again, any Star Trek fan could have seen them coming.

If, as Judge Leon suggests, the NSA’s programs are “almost-Orwellian,” it begs the question – has the prevalence of “Orwellian” technologies changed society’s view of privacy to make such intrusions acceptable?  The citizens in Orwell’s 1984 knew they were constantly being watched – you might say they had no subjective expectation of privacy, and, even if they did, society would not find that expectation reasonable (the Katz test).  In modern society, we’ve become accustomed to a number of intrusions that didn’t exist in 1979 – ubiquitous security cameras, Google Street View, and the development of cell phones, watches and spectacles equipped with video cameras.  Is society growing accustomed to a world where our lives are constantly captured and documented?  If so, should that be factored into the Katz test?  Or has the march of technology rendered Katz (1967) obsolete?

The Fruit of the Poisonous Tree

Judge Leon finds that the NSA collection program is a “search” under the Fourth Amendment, but goes on to note that “[w]hether the program violates the Fourth Amendment will therefore turn on ‘the nature and immediacy of the government’s concerns and the efficacy of the “search” in meeting them’” (p. 59, quoting Earls).

The NSA program failed this test, according to Leon, because the government did not show that the program prevented terrorist attacks that would not have been prevented through other means.  Leon notes that the government provided evidence of how the NSA program collected information faster than through traditional means, but never showed that the program was essential for preventing terrorist attacks.

We shouldn’t be surprised if, at this point in the litigation, the government wants to play its national security cards close to the chest.  The exclusionary rule, also called the “fruit of the poisonous tree” doctrine, says that evidence obtained as the result of an unconstitutional search can be held inadmissible in a criminal prosecution.  So let’s say the government does what Judge Leon asks and conclusively demonstrates that it used the collection program to apprehend a would-be terrorist, a terrorist they wouldn’t have caught otherwise.  That might strengthen the government’s case, but, if the program is still found to be unconstitutional, the terrorist might be acquitted due to the exclusionary rule.

So even if the government has evidence of the “efficacy” of its collection programs, it has to make a strategic decision whether, and when, to release that information.  A preliminary injunction hearing, with a very limited application, might not be the correct time.  But Klayman’s victory in the preliminary injunction might force the government to reveal more sensitive details of the NSA program’s “efficacy” in the upcoming trial on the merits.

Teaching Notes

• This opinion would make interesting reading and discussion material for a class on national security, privacy, or Constitutional law.
• pp. 6-23 has a helpful background on the NSA metadata collection and relevant national security law.
• pp. 34-66  discusses the standard for a preliminary injunction and analyzes the plaintiff’s Fourth Amendment claims.
• Discussion topics:
  • Does legal precedent have an expiration date?  At what point has technology or society changed so much that we can disregard “old” judicial opinions?  Does the same apply to legislative acts?  What about the Constitution itself?
  • Assume the government has evidence of a terrorist attack that was prevented due to information obtained from the NSA collection program.  Without the collection program, there would be no evidence against the (now-convicted) terrorist.  Do you present this evidence to Judge Leon knowing that, if you lose, the terrorist might get a new trial and an acquittal?  How might this affect your litigation strategy?  What are the ethical implications of your decision?

Related articles

• Don’t Miss the Footnotes: Judge Leon’s Opinion in Klayman (Section 215 Collection) (lawfareblog.com)
• Judge: NSA program ‘almost-Orwellian’ (msnbc.com)