Concerning the Legality of the NSA’s Section 215 Bulk Metadata Collection Program
On June 5, 2013, the Guardian first reported on an order from the Foreign Intelligence Surveillance Court (FISC), requiring Verizon to produce all domestic telephone call detail records to the National Security Agency (“NSA”) on an ongoing basis. The FISA had ordered Verizon to produce these millions of records of US citizens to the NSA without any particularized suspicion of wrongdoing. Specifically, the FISA order required that Verizon turn over “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Once revealed, the government confirmed the existence of the Verizon order and of the telephone metadata program.
Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 following the discovery by the Church Committee of decades of domestic surveillance by the Intelligence Community. The Act prohibited domestic surveillance except by approval from a newly created secret court, the Foreign Intelligence Surveillance Court (FISC). Under the FISA, the FISC would only grant orders if the government could show probable cause to believe that the targets were foreign powers or agents of a foreign power.
However, Congress modified the FISA in 2001 with the USA PATRIOT and in 2006 with the Patriot Act Reauthorization. Specifically, Congress authorized the FBI in Section 215 to apply for FISC orders compelling businesses to produce “tangible things” relevant to an authorized investigation to protect against international terrorism. Section 215 provided that businesses who received these orders could challenge them in the FISC Court. We now know that the FISC has subsequently approved 215 orders for more than 7 years that require major telephone companies, like Verizon, to provide all telephone call detail records to the NSA.
Plaintiff in Smith sued to enjoin the NSA from collecting her telephone records, claiming that the 215 program violates her Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiffs brought the case as customers of Verizon Wireless, alleging that the government warrantlessly collected their telephone records, stored them, and queried them for more than 5 years. The district court dismissed plaintiffs claim, finding that they had no reasonable expectation of privacy in their call detail records under the Supreme Court’s decision in Smith v. Maryland.
In Smith v Obama, the lower court held that the NSA Metadata collection does not violate the Fourth Amendment because the Supreme Court held in Smith v. Maryland that individuals have no reasonable expectation of privacy in their cell phone records held by phone companies. The court acknowledged that the information collected by the NSA went “beyond” the information collected in Smith v. Maryland (several days’ worth of numbers dialed by a single person, obtained with a pen register). To support its holding, the district court cited three Ninth Circuit cases involving records held by third parties, all of which involved the records of one to three individuals collected by law enforcement as part of an investigation.
Plaintiff Smith has appealed the lower court ruling in the U.S. Court of Appeals for the Ninth Circuit.
EPIC’s Interest in Smith v. Obama
EPIC has continually pressed the NSA and the President to end the collection of Americans’ telephone call records because the program is unlawful. EPIC filed a Petition for a Writ of Mandamus in the U.S. Supreme Court, challenging the same NSA metadata collection programs. EPIC continues to advocate for the end of the bulk collection program, which the President has promised would end.
- U.S. District Court for the District of Idaho, No. 13-cv-00257
- Smith v. Obama, ___ F. Supp. 2d ___ (D. Idaho, June 3, 2014)
- Plaintiff’s Motion for a Preliminary Injunction
- DOJ Motion to Dismiss
- DOJ Memorandum in Opposition to Plaintiff’s Motion for a Preliminary Injunction
- Plaintiff’s Combined Reply in Support of Motion for Preliminary Injunction and Memorandum in Opposition to DOJ’s Motion to Dismiss
- DOJ Reply in Support of Motion to Dismiss
- U.S. Court of Appeals for the Ninth Circuit, No. 14-35555
- Opening Brief of Appellant Smith
- Excerpts of the Record – Volume 1
- Excerpts of the Record – Volume 2
- Amici Curiae Briefs in Support of Appellant
- Brief of Amici Curiae EPIC and Thirty-Three Technical Experts and Legal Scholars
- Brief of Amici Curiae Senators Wyden, Udall, and Heinrich
- Brief of Amicus Curiae National Association of Criminal Defense Lawyers
- Brief of Amicus Curiae Center for National Security Studies
- Brief of Amicus Curiae Reporters Committee for the Freedom of the Press
- Brief of Amicus Curiae PEN America Center
- Response Brief of Appellee Obama
- Reply Brief of Appellant Smith
- Motion of Amicus Curiae Center for National Security Studies to Participate in Oral Argument
- March 22, 2013 Order
- EPIC: United States v. Moalin
- EPIC: Klayman v. Obama
- EPIC: ACLU v. Obama
- Laura Donohue, Bulk Metadata Collection: Statutory And Constitutional Considerations, 37 Harv. J.L. & Pub. Pol’y 759 (2013)
- Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014)
- The President’s Review Group On Intelligence & Communications Technologies, Liberty And Security In A Changing World (Dec. 12, 2013)
- Bruce Schneier, Metadata Equals Surveillance, Schneier on Security (Sept. 23, 2013)
- Marjorie Cohn, Does Cell Phone Case Imperil NSA Spying?, Consortium News (June 30, 2014)
- Marc Rotenberg and Alan Butler, Symposium: In Riley v. California, a Unanimous Supreme Court Sets Out Fourth Amendment for the Digital Age, SCOTUSblog (June 26, 2014)
- Charlie Savage, Judge Questions Legality of N.S.A. Phone Records, N.Y. Times (Dec 16, 2013)
- Spencer Ackerman, NSA phone surveillance program likely unconstitutional, federal judge rules, The Guardian (Dec 16, 2013)
- Bill Mears, Judge: NSA domestic phone data-mining unconstitutional, CNN (Dec 16, 2013)
- Andrew Harris, NSA Phone Program Probably Unconstitutional, Judge Rules, Bloomberg (Dec 17, 2013)
- Carrie Johnson, Federal Judge Rules NSA Bulk Phone Record Collection Unconstitutional, NPR (Dec 16, 2013)
- Andrew Cohen, Judge’s Ruling Could Jeopardize NSA Surveillance, The Atlantic (Dec 16, 2013)