Supreme Court Review: A Preview

Each fall, during Georgia College’s Constitution Week, I host a panel on recent U.S. Supreme Court decisions.  On September 17, from 6-8pm, a group of lawyers and law professors will join me in Milledgeville, GA to talk about same-sex marriage, ACA subsidies, and other major decisions of the 2014-15 Roberts Court.  The event is free and open to the public.

WRGC 88.3 radio host Daniel McDonald and I met to discuss the Court and its recent rulings.


Oh Say Can U.A.V.?

Today, I heard a research presentation on the economics of drone warfare and it reminded me to follow up on my Drone Home post.  Congress gave the FAA until 2015 to integrate drones (or Unmanned Aerial Vehicles to you sophisticates) into U.S. commercial airspace. The New Year is upon us, and so is the question – Dude, where’s my TacoCopter?

To be fair, Congress gave the FAA until September.  But why wait?  Just file for an exemption, and you can join the lucky UA-VIPs who already fly the red, white, and blue skies.

Academic community -- Attend my open house or be destroyed.

Academic community: attend my open house or be destroyed.

Lest you think the FAA hands out drone licenses like TicTacs, you’ll still have to wait in a pretty long line. The FAA currently is considering exemption requests from hundreds of companies and individuals.  I hoped to find a few really strange proposals, but most of them appear reasonable – agriculture surveys, aerial photography, search and rescue, and, of course, training people how to operate drones. Some of the more entrepreneurial applicants requested exemptions for every use that the FAA has approved for other companies.  After all, once you get permission for commercial drone use, why limit yourself?

Sadly, taco delivery is not yet on the horizon.

Greed is (an Environmental) Good

In March, the U.S. Trade Representative announced its intent to negotiate a WTO agreement “aimed at eliminating tariffs on a wide range of environmental goods.”  How wide a range of products falls under USTR’s aim? That depends on what you consider to be an “environmental good.”  USTR requested public comment on WTO negotiating objectives, including products.  The public responded, with many companies scrambling to get their products into USTR’s sights, and a few scrambling to get theirs out.

Gary Larson Bear
Is a ceiling fan an environmental good?  Yes, according to the Hunter Fan Company.


“Ceiling fans are able to work so efficiently because they cool people, not air. Using very little energy, fans produce an airflow that generates a wind chill, providing a cooling effect on those in the room. Because a person must be present to feel these effects, ceiling fans can and should be powered off when a room is empty, saving even more energy. On the contrary, air conditioners are often run continuously in an empty room to maintain a comfortable temperature for when people re-enter.”

Of course, fans are less environmentally friendly than, say, sweating.  As WTO negotiations proceed, except this to be a major sticking point.  Is a product an “environmental good” just because it is better for the environment than an alternative?  Is a blanket an environmental good if it helps you use less heat?  How about clothing in general?

Coca-Cola wants to include the plant-based plastics used in its PlantBottles.  These PET plastic bottles are made from 30% plant material (sugarcane ethanol).  That’s better then, well, the bottles Coke was using before.  When a company improves its own environmentally unfriendly product, does that make the improved product an environmental good?  What if another company invents a 50% plant-based bottle?  Should Coke’s 30% bottle be delisted?  How often must we make updates as the products on the list fall behind emerging technologies?  WTO negotiations aren’t known for their speed.  By the time an agreement is reached, will today’s “green” technologies have turned “brown”?

brown banana

It’s still good, right?

Who else wants in?  The International Wood Products Association would like USTR to include wood products from “sustainably managed forests.”  However, there’s always debate over what makes a forest “sustainably managed,” even among third-party certifiers like the Sustainable Forestry Initiative and the Forest Stewardship Council.

The National Association of Manufacturers has a laundry list of items for USTR, including laundry – well, “personal protective equipment,” such as gloves.  Liquified Natural Gas? Sure!  Why not throw in the kitchen sink?  Wait, there it is.

And yet this potential trade agreement doesn’t have every company seeing green.  Some companies benefit from existing tariffs on their products.  For example, a U.S. producer of a product that has low foreign tariffs and high U.S. tariffs might enjoy that it has foreign market access and limited competition for its U.S. sales.

Timken wrote to tell USTR that certain of its products (ball and roller bearings) emphatically were not environmental goods.

“While bearings may be incorporated in such environmental goods, they are also incorporated in a wide variety of other goods. Indeed, bearings are used in virtually everything that moves or turns. Thus, bearings, in and of themselves, are not environmental goods even if these products can in various circumstances help in the reduction of energy use.” (emphasis in original)

Seriously, we don’t even turn the lights out when we go home for the night.  Please stop accusing us of helping the planet.  (Just kidding, Timkin.  Love those HTS 8482’s – keep ’em coming.)

Clearly, the biggest issue facing this WTO negotiation is how to define an “environmental good.”  Expect lots of wrangling and horse-trading (wait a minute . . . is a horse an environmental good?  How about a horse-drawn carriage?  A butter churn?  Are we headed toward an Amish export boom?) before this agreement gets the green light.

Pass the Molybdenum, Please

While trade nerds wait with bated breath, copies of 19 CFR clenched in their fists, for the conclusion of the TPP and TTIP* negotiations, the WTO issued its ruling on Chinese rare earths.  The three complainants, the U.S., E.U., and Japan, are each involved in TPP / TTIP, and this ruling may affect the language in those final agreements. On March 26, 2014, the WTO Dispute Settlement Body (DSB) issued its Report, which addressed the limits of a state’s power to restrict the export of exhaustible natural resources.  In this case, the state is China and the resources are 19 “rare earth” elements critical for personal electronics, high-tech weapons, and green energy production.  (One of the elements, neodymium, gives magnetballs their (in?)famous powers.)

The case is DS431.

Why “rare earths?”

They’re called “rare earths” because it’s rare to find them in concentrations worth mining, and extraction can be difficult and dangerous.  Rare earths often are found alongside radioactive elements, and the mining, refining, and recycling of rare earths can release deadly toxins.

Sounds interesting.  Where can I get some?

Currently, almost all of the world’s rare earth extraction happens in China, and that’s also where almost all of the rare earths are processed.  China restricts rare earth exports, which helps keep the processing “in-house.”  This means that Chinese rare earth extractors might get less for the elements than they would on the open market, but Chinese producers of downstream products have an edge over their foreign rivals.  China says it needs export controls to protect an exhaustible resource from overexploitation and to guard against negative environmental effects.  The U.S., E.U., and Japan say sustainability concerns are just a pretext for domestic protectionism, so — don’t bogart that erbium, my friend.

Tough call.  Who’s right?

The mother of all international trade agreements is called the General Agreement on Tariffs and Trade (GATT), and it was the precursor to the WTO.  Before joining the WTO and agreeing to GATT, China could do what it pleased with its rare earth supply.  However, one of GATT’s purposes was trade liberalization, and export restrictions are disfavored.  GATT Article XX(g) provides an exception, but only for measures “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.”

China tried to convince the DSB to apply an Article XX(g) exception (an uphill battle — historically, few states have raised any Art. XX clause successfully).  While the DSB recognized that states can develop sustainability plans for natural resources that might meet Art. XX(g), the DSB found that China’s restrictions were for economic gain, not environmental protection.  The DSB also found that China had not made equivalent restrictions on domestic use of rare earths.  This was a pretty clear victory for the U.S., E.U., and Japan — the DSB agreed that China’s environmental concerns were a pretext.

What’s next?

The U.S. and China each noticed an appeal, with the U.S. complaining about how the DSB rejected some of its exhibits, and China complaining about everything else.  I predict China will have a tough time before the Appellate Body, but the more interesting question is how might this ruling affect the ongoing trade relationships of the victors, each of whom is involved in TPP, TTIP, or both?  Will TPP and TTIP rely on GATT’s language when it comes to export restrictions for natural resources?  Or will they attempt a “WTO-plus” model that narrows the language and perhaps makes the outcome of raising a conservation defense more predictable?  By finding China’s conservation goal was a pretext, the DSB avoided drawing a line in the sand as to when a legitimate environmental concern might satisfy Art. XX(g).  However, with rising global interest in sustainability, I predict more and more of these cases will come before the WTO (or arbitration panels that might consider WTO rulings as persuasive authority).

Why should we care?

GATT has lowered tariffs to the point where many free trade agreements are being negotiated at the margins, and are more likely to involve the lowering of non-tariff barriers, such as sanitary/phytosanitary measures, technical barriers to trade, and export controls.  U.S. lumber companies have been grumbling for a long time over allegedly unfair Canadian log export restrictions.  The U.S. has its own restrictions on the export of crude oil and liquified natural gas.  Are these restrictions justified by conservation efforts?  Or is that merely a pretext to give domestic consumers an edge?  And if the answer’s somewhere in the middle, which way would a WTO panel jump?

*Or is it T-TIP?

Buckyballs Bails Out of Magnet Litigation, leaves Zen Magnets Holding the Bag

zen bagIn my Toys for Torts post, I covered the Consumer Product Safety Commission’s fight to force a recall of magnetballs.  These toys (or should I say “science kits?”) have become the modern lawn dart.  Federal regulators say the product poses an inherent danger to children and animals.  Magnetball sellers say the dangers are exaggerated and warning labels should suffice.

Two of the largest magnetball companies were named Buckyballs and Zen Magnets.  Each sold millions of magnetballs into the U.S. market, starting around 2009.  The companies had some friction in 2011 when Buckyballs CEO threatened to sue Zen Magnets and got this YouTube video in return.  But regulatory enforcement makes strange bedfellows, and the intra-industry tiff took a back seat in 2012 when the CPSC sued both companies, trying to force a recall.

The companies had different reactions to the lawsuit.  Buckyballs CEO Craig Zucker fought the lawsuit in the press and with lobbying efforts in Washington, but eventually shut down the LLC that was selling the product.  The CPSC responded by amending its lawsuit to add Zucker as an individual defendant.  Zen Magnets, on the other hand, continued business as usual.  It still offers magnetballs for sale through its website.

Just last month, Zucker and the CPSC signed a consent order.  Zucker, with no admission of wrongdoing, pledged $375,000 toward a recall of Buckyballs.  Here is the consent order.  It looks like Zucker will need to put up $100k towards publication of a website, to last five years, and administration of a six-month recall, with the rest of the money put in escrow to pay claims.  However, if there are any unclaimed funds left in the escrow after one year, Zucker gets the money back.  (It’s not clear to me what would happen if there were more recalls in one year than could be supported by the escrow account.  Do the U.S. taxpayers foot the bill?)

Both sides claimed victory – Zucker (or an anonymous supporter) through a WSJ opinion piece, and the CPSC Commissioners through their website.  However, each Commissioner had a different reaction.  Robinson’s press release crows almost as loudly as Zucker’s.  Buerkle supports the settlement, but takes offense at the fact that Zucker was added as a defendant by unilateral action of the Presiding Officer, and not by a vote of the Commission.  Only Adler, who dissented from the settlement, says it didn’t go far enough.  He makes two points that were in my mind upon reading the consent order – why pay to maintain a recall website for five years if customers only have six months to respond?  And is $375k enough?

The second point is significant in deciding who really won this battle.  Did Zucker beat City Hall?  Or did he end up doing basically what the CPSC wanted in the first place?  Let’s do a little back-of-the-napkin math.  In its Complaint, the CPSC estimated 2.5 million Buckyballs (or variants) were sold.  A set of 10 cost $3.50.  250k sets at $3.50 each gives us $875k.  Now, Zucker himself has been quoted as saying he made millions off Buckyballs, so we might assume the $875k number is low.  But how many purchasers are likely to actually return their Buckyballs?  Presumably anyone who finds the product dangerous already got rid of it.  The $275k in escrow covers the return of about 78,000 sets.  Of course there is postage, etc., but I have a hard time believing Zucker would have experienced this level of returns even if he agreed to a recall at the outset (and he might have saved some hefty litigation fees).

What effect will this consent order have on future market behavior?  Does a penalty of this size have a deterrent effect?  I doubt it, but the CPSC’s willingness to hold LLC members personally liable might.  Or the maneuver may simply have made Zucker a hero to small gov advocates, with a strong base of support for his future projects.

And what now for Zen Magnets?  They are still in the fight and beginning the discovery phase of litigation.  Zucker is out of the CPSC’s sights but might still be on its deposition list.  Will Zucker take the chance to sink his former rivals?  I think Zucker wants to preserve his anti-establishment image, and he still might be on the hook for tort liability.  So, for now, I expect these magnetball magnates to stick together.


I started playing music just before class.  It fills the awkward few minutes when most of the students are already in their seats, and when the song ends, it’s a signal for them to put away their cellphones.  It’s also a subliminal business law lesson!  I pick a song to match each day’s topic.  Help me find more!

Introduction / Role of Attorneys in Business – “One Million Lawyers,” Tom Paxton (1985)

Civil Procedure – “Good Morning, Judge,”  Wynonie Harris (1950)

Civil Procedure – “So Sue Us,”  Dance Hall Crashers (1995)

Constitutional Law – “God and Guns,” Lynyrd Skynyrd (2009)

Privacy Rights – “Private Eyes,” Hall and Oates (1981) 

Civil Rights Act of 1964 – “The Way It Is,” Bruce Horsby and the Range (1986)

Crimes – “I Fought the Law,” The Bobby Fuller Four (1965) (I play this along with a slideshow of famous white-collar criminals.)

Offer and Acceptance – “My Only Offer,” Mates of State (2008)

Contractual Capacity (Minors) – “I’m Eighteen,” Alice Cooper (1971)

Consideration – “No Consideration,” Jimmy Burns (1999)

Promissory Estoppel – “Promises, Promises,” The Naked Eyes (1983)

Breach and Remedies – “The Remedy,”  Jason Mraz (2002)

Partnerships – “Do You Wanna Partner,” from the Bollywood romantic comedy, “Partner” (2007)

Partnerships – “It Takes Two,” Rob Base & DJ EZ Rock (1988)

Business Ethics – “Why Don’t You Do Right,” Peggy Lee (1950)


* After using the term “LawTunes” to describe these songs all semester, I learned that there is an actual band with this name.  They specialize in Xmas tunes for overworked JDs – such as “Another Billable Christmas,” “Yule Hear From Our Lawyers,”  and “I Got A Footnote in My Stocking.”  Rock on, fellas.  Just make sure you get that filing done first.


Drone Home

Drones have a few new places to spread their wings.  On Dec. 30, the FAA approved six “operators” to manage research and test sites for Unmanned Aircraft Systems (UAS).  The FAA press release and supporting documents are available here.

Test site operators include public universities in Alaska, Texas, and Virginia, as well as a New York airport, the North Dakota Department of Commerce, and most broadly, the State of Nevada.  But where exactly are the test sites?  On this point the FAA is quite vague.  Although at first glance the FAA documents indicate there are only six test sites (e.g. “FAA Selects Six Sites for Unmanned Aircraft Research“), a closer look reveals that there are six approved operators, and each operator may have several test sites, which might be located in more states than just the operator’s home state.  For example, “The University of Alaska proposal contained a diverse set of test site range locations in seven climatic zones as well as geographic diversity with test site range locations in Hawaii and Oregon.”

The FAA only provides information on test site location at the state level, leaving it unclear whether each state will contain one or multiple test sites, which part(s) of each state will host the test sites, or even whether major population centers will be part of the test sites.  It seems like a strange omission from FAA documents such as the UAS Test Site Fact Sheet, which has a section called “The Test Sites:  Who, What, Where.”

Always view a holiday press release with suspicion.  Is there a reason this couldn’t wait until Jan. 2?  Does the FAA hope any cries of protest will be lost among the popping of fireworks and champagne corks?

Of course, the FAA puts out a lot of important information over the holidays – just look at this Dec. 24 press release:  “FAA Gives Santa, Sleigh & Crew a GO for Launch.”  Santa’s sled is Wi-Fi enabled this year, and he put his flight plan on an iPad.  No, I am not making this up.

“We’re helping Santa fly smarter and faster while making sure he has a safe and successful mission” said FAA Administrator Michael Huerta.  Oh, and Nevada is now a drone test site. Happy Holidays!

To add a further element of paranoia, the FAA’s UAS test site gurus, Alison Duquette and Les Dorr, Jr. have the same contact number as the FAA’s Santa liaison,  Kristie “Elf on the Shelf” Greco.  Does Santa plan to deliver presents by drone next year, Jeff Bezos-style?   Or is this merely an FAA ploy to distract drone critics?  (Welcome to FAA public relations.  If you’d like to comment on drone testing, press 1.  If you’d like to leave a message for Santa, press 2.)

The FAA’s drone announcement may be flying under the radar, but those who have followed the issue shouldn’t be surprised.  In 2012, Congress passed bills requiring the FAA to establish the U.S. drone testing sites.  New Mexico already had a test range, and NASA’s been testing drones in California since at least 2004.

The FAA solicited public comments on both the site selection process and privacy requirements.  It also held a two-hour phone-in “public engagement session.”  The transcript is worth a read.  What sort of person calls the FAA on their lunch break to talk about drone privacy?  Mostly people who build and sell drones.  Also public privacy advocates.  And then there’s this guy:

While I’m a lawyer, I am actively developing several business models to use unmanned aerial vehicles to provide safety and security for all Americans and especially to cut energy use by one-third, specifically I am looking at a business model that incorporates unmanned aerial vehicles to constantly monitor our major metropolitan areas so that we can turn off the lights at night . . . what everyone who talks about this issue of privacy fails to consider is that the right of self defense is a constitutional dimension, the right to deploy drones to surveill the conduct of people in and around your environs is constitutionally protected.  So we have the entire debate flipped.  What we should be talking about is how promptly and quickly the FAA is going to move to recognize the self defense rights of all Americans to deploy drones in many different varieties in order to provide self defense.

I think this commenter is saying that we should fill our cities with weaponized mini-drones so we can save money on streetlights.  True, I might feel safer walking around at night with a Predator hovering over my shoulder.  Except that I couldn’t walk around at night.  Because there aren’t any lights.

Anyway, back to the test sites.  I’ve noticed that all the early FAA documents, including the public comment notice, refer to six test sites, not six operators.  This may seem like semantics, but it already appears to have expanded the states with test ranges from six to nine (University of Alaska also will test in Hawaii and Oregon, and Virginia Tech also will test in New Jersey, according to the fact sheet.)  Expect some pushback on this in the new year.

ACLU v. Holder: NSA Metadata Collection Upheld by S.D.N.Y.

On December 27, just ten days after D.D.C.’s Judge Leon awarded a preliminary injunction against the NSA’s telephone metadata collection in Klayman v. Obama, a different federal judge ruled in the NSA’s favor.  This gives us conflicting opinions in different federal districts and brings the issue one step closer to its likely endgame at the U.S. Supreme Court.

In ACLU v. Holder, Judge William H. Pauley III of the Southern District of New York denied the ACLU’s motion for preliminary injunction and dismissed the ACLU’s lawsuit.  The facts in ACLU v. Holder are about the same as in Klayman v. Obama, so how did Pauley come to the opposite result?  Clearly, the two judges see this issue differently, and aren’t afraid to make their opinions known – both Leon’s 68-page opinion and Pauley’s 51-pager read like pieces of advocacy, and there’s no doubt each judge, in writing his opinion, considered its effect on the appellate courts that would review it.

I blogged last week about the Leon opinion.  So what does Pauley have to say?  No Beatles references here – Pauley is all about the Stars and Stripes.  “The September 11 terrorist attacks” are his first words, and Pauley goes on to suggest that 9/11 might have been prevented by a collection program like the NSA’s.  Writing in a courthouse less than a mile from Ground Zero, Pauley might be tempted to call checkmate right then and there, but he goes on to flesh out his opinion with legal authority for the NSA metadata collection under the Patriot Act, as well as the First and Fourth Amendments.

You can read the full opinion here.

“A Bold Jujitsu”

While Judge Pauley’s opinion isn’t as florid as Judge Leon’s, Pauley does get philosophical, even poetic, at times.  In his opening paragraph, he states:

While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us.  It was a bold jujitsu.  And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Judge Pauley’s opening argument is visceral.  He quickly switches from the third person – “Americans” – to the first – “us.”  And the way “we” could have protected ourselves, according to Pauley, is through a program like the NSA’s.  With this opener, Pauley shows a little jujitsu of his own.  This is no longer a case about citizens holding their government responsible for covert domestic surveillance.  It is a case about “us” (Americans) versus “it” (al-Qaeda, with its spidery “filaments”).  A bold move, Pauley – certain to win sympathy in Manhattan, and perhaps in the Second Circuit as well.  But what does Pauley mean by “a seventh-century milieu?”  Is this a reference to historical Muslim conquests?

Secret Means and Methods

On pp. 3-9, Pauley describes FISA and the Patriot Act.  Even in this “Background” section, the judge argues the merits of clandestine surveillance:  ” . . . in matters of national security, the Government must be able to keep its means and methods secret from its enemies.”

I briefly cover the Fourth Amendment and Constitutional privacy rights at the beginning of my business law class, and this is one of the questions I put to the students – how should a government balance national security with its citizens’ privacy?  Are national security concerns paramount in time of war?  Is the “War on Terror” a war in this regard?

Judge Pauley wades briefly into this debate at pages 8-9:  “In recognition of the broad intelligence gathering capability Congress granted to the Executive Branch, section 215 included a sunset provision terminating that authority at the end of 2005.  But the war on terror did not end.  Congress has renewed section 215 seven times.”  Why include the phrase “But the war on terror did not end?”  The comment seems out of place and almost sarcastic – for who in 2013 America believes the war on terror has a foreseeable end, even if al-Qaeda is annihilated?  However, from the context, I think that Pauley means for his comment to be taken at face value, and the judge does believe that a surveillance program designed to be temporary reasonably could be extended for an indefinite period until the war on terror “ends.”

“Those Issues Were Resolved”

After describing the FISC oversight and the rigorous protocols required of the NSA surveillance program, Pauley addresses concerns that the NSA, in some cases, did not follow protocol.  Pauley dismisses these concerns quickly, quoting an FISC judge’s partially-declassified order: “Through oversight by this Court over a period of months, those issues were resolved.”  Look for this to be a common theme in judicial opinions supporting the constitutionality of the NSA program.  No judge wants to be the one to dismantle the NSA program and risk a terrorist attack that might have been prevented.  Even Judge Leon passed the buck by staying his injunction while Klayman went up on appeal.  The Obama administration has already initiated an overhaul of NSA collection methods and their oversight, with the possible addition of a “citizens advocate” on the FISA court.  It might be tempting to find that such developments in the executive branch moot claims against the NSA’s programs, programs that may change significantly by the time the case reaches the Supreme Court.  I assume that’s what Judge Pauley is indicating in his cryptic remarks near the end of his opinion, on p. 51:

As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decision [sic] without the benefit of the adversarial process.  Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes.  This case shows how FISC decisions may affect every American — and perhaps, their interests should have a voice in the FISC.

It’s a strange comment from a judge that uses the rest of his opinion to defend the FISC’s secret decisions in the name of national security, and I think it is telling of how this case will end.  No court wants to definitively label the NSA program unconstitutional.  It’s much more palatable to find that the primary concerns with such programs have been resolved through actions of the Executive and Legislative branches.

Statutory Claims

Judge Pauley addresses the ACLU’s statutory claims first and finds that civil actions by NSA “targets” such as the ACLU are explicitly prohibited by FISA and the Patriot Act.  What’s interesting is that, even after claiming Plaintiffs cannot bring a statutory cause of action, Pauley goes on to address, and dismiss, the merits of the Plaintiffs’ statutory claims.  He takes over ten pages to do so.  As these arguments are not necessary to support his ruling, one can assume that the judge is again taking on the role as advocate and “pleading in the alternative” to the Second Circuit, in case it doesn’t agree that the statutory cause of action is barred.

Liberty and Security

I may write more later on Pauley’s constitutional analysis.  In short, he finds Smith to be binding precedent and therefore finds that the metadata collection is not a Fourth Amendment search.  I mentioned in my earlier blog post that I found Leon’s analysis of Smith suspect, and I think Pauley has the better argument here.  Pauley makes the sound point that the type of information that the NSA collects from telecommunications providers (metadata) is the same as the type of information that was collected by the Smith “pen register.”

As far as philosophical questions of privacy vs. security, Pauley has a strong opinion:  “It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.”  (p. 47, quoting Haig v. Agee).  He reiterates this point in his conclusion, where he once again takes us back to September 11, quoting the 9/11 Commission Report:  “The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil.”  This is a fair point, but it’s not the end of the debate.  Coming back to Judge Leon’s fears of our “almost-Orwellian” national security apparatus, we also have to ask what made Orwell’s 1984 a dystopia, and whether, in strengthening our national security, we are giving up an essential part of our national character.  It’s a highly nuanced question that will be on the mind of the appellate judges, and perhaps the Supreme Court justices, who will consider this issue on appeal.

Klayman v. Obama: Privacy in the Time of Orwell

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’ GardenYou 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?