Federal Judge Rules NSA Data Collection Program Is Likely Unconstitutional

by White & Case LLP

On December 16, 2013, a federal judge for the District of Columbia issued an injunction prohibiting the U.S. government from collecting telephonic metadata as part of a National Security Agency ("NSA") surveillance program.1 The U.S. government must also destroy any metadata in its possession that was collected through the program.2 In the same ruling, however, the Court stayed the injunction for the duration of the appellate process "in light of the significant security interests at stake in this case and the novelty of the constitutional issues."3

The Court found it had the authority to evaluate the NSA surveillance program, notwithstanding that the program was conducted pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FISC").4

The case is one of several recent lawsuits arising from public revelations that the U.S. government, through the NSA and with the cooperation of various telecommunications companies, has been conducting surveillance and intelligence-gathering programs that collect metadata about the telephone and internet activity of American citizens within the U.S.5

The initial media report of the NSA surveillance program disclosed a FISC order, dated April 25, 2013, compelling Verizon Business Network Services to produce to the NSA on "an ongoing daily basis . . . 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."6 According to the media report, the FISC order "show[ed] . . . that under the Obama administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing."7

The Court’s ruling centered on whether the NSA surveillance program violates privacy rights afforded by the Fourth Amendment of the U.S. Constitution.8 This inquiry concerned (1) whether the plaintiffs had a "reasonable expectation of privacy" that was violated by the NSA surveillance program, and (2) whether the search violating such expectation of privacy was reasonable.9

First, the Court found that the "almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States" almost certainly violates the plaintiffs’ reasonable expectation of privacy.10 Distinguishing the NSA surveillance program from other permissible data collection, the Court stated: "It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government."11

Second, the Court found the searches conducted under the NSA surveillance program were not reasonable, emphasizing that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature."12 Although the U.S. government has publicly asserted that the NSA surveillance program has prevented fifty-four terrorist attacks, no proof of that was presented to the Court.13

This ruling has significant implications for any telecommunications or internet companies that hold or have access to private data, and the extent to which they may be required to comply with government demands to produce certain information in the future. Although the Court has stayed its injunction for the duration of the appellate process, the Court noted that it "fully expect[s] that during the appellate process, . . . the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld."14 Thus, assuming an unsuccessful appeal, telecommunications and internet companies should be prepared to quickly comply with the Court’s ruling, specifically with respect to their provision of data to government agencies.

1 - Klayman v. Obama, No. 13-0851, slip op. at 67 (D.D.C. Dec. 16, 2013).
2 - Id.
3 - Id.
4 - Id. at 5.
5 - Id. at 2.
6 - Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, GUARDIAN , June 5, 2013, available at http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order.
7 - Id.
8 - The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. Amend IV. A Fourth Amendment “search” occurs either when “the Government obtains information by physically intruding on a constitutionally protected area,” United States v. Jones, 132 S. Ct. 945, 950 n.3 (2012), or when “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001).
9 - Klayman, No. 13-0851, at 43.
10 - Id. at 49.
11 - Id. at 48.
12 - Id. at 61.
13 - Id. at 62 (citing Justin Elliott & Theodoric Meyer, Claim on ‘Attacks Thwarted’ by NSA Spreads Despite Lack of Evidence, ProPublica.org (Oct. 23, 2013), available at http:///www.propublica.org/article/claim-on-attacks-thwarted-by-nsa-spreads-despite-lack-of-evidence).
14 - Id. at 67-68.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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