On February 12, Senator Rand Paul (R-KY) announced that he is filing a lawsuit challenging the constitutionality of the NSA metadata program. Paul is one of the most articulate of the potential 2016 presidential candidates and it is likely that in some part his actions are designed to attract the attention of liberals and libertarians alike. Whether he would eventually secure more votes than Barry Goldwater, George McGovern or other perceived fringe candidates is far beyond this writer's expertise. For those interested in national security law, however, it is hard to remain silent on the fascinating constitutional law questions raised by his complaint.
Before getting into truly controversial issues, it is necessary to keep in mind the incontrovertible basic facts that underlie this dispute. The metadata program does not monitor the content of telephone conversations or emails. As it exists today, it stores within a vast database only numbers called, duration and time. This data is only reviewed when senior NSA leadership determines that a number must be queried because there is articulable suspicion it is connected with terrorist activity. The phone activity of the average American citizen, therefore, is almost never accessed. On December 27, in ACLU v. Clapper, US District Judge William Pauley noted that obtaining these records does not constitute a "search" and therefore probable cause is not needed to review it. The reason he held that it is not a search is because the data is willingly shared with a third partythe phone companyand the Supreme Court held in 1979 in Smith v. Maryland and US v. Miller in 1976 that there is no expectation privacy for information you knowingly provide to another.
However, just eleven days prior to Clapper, US District Judge Richard Leon held the program was unconstitutional in Klayman v. Obama. This holding was justified in part because, unlike the case in Smith, hundreds of millions of records were stored and the ubiquity of cell phones today has made them "essential," leading citizens to have "an entirely different relationship with phones than 34 years ago." Lurking just beneath the surface of Leon's opinion is Justice Sonia Sotomayor's concurring opinion in US v. Jones in which she wrote: "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith and Miller. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." The opinions of the other justices in supporting restrictions on the government's long established use of transponders that generally only reflect location data observed by numerous third parties on the highway were in accord with Sotomayor's reasoning.
In answering the contested question of whether this particular government program is constitutional, it is easier to state what law and precedent is established today than to guess what the Supreme Court will say tomorrow. The Supreme Court of course has a history of completely reversing itself depending on the ideological makeup of the Court while claiming that they are adhering to precedent. In the national security realm we have the recent examples of Hamdan v. Rumsfeld finding President Bush had no authority to order military commissions pursuant to statutory language in the Uniform Code of Military Justice after the Court held in Ex Parte Quirin that the same statute gave President Roosevelt this authority. In Boumediene v. Bush the court found enemy combatants had the right to habeas appeals to civilian courts after the court had held in Johnson v. Eisentrager that "[n]othing in our constitution extends such a right. The practice of every modern government is opposed to it."
If one assumes that accessing telephone records is a seizure, a fundamental element in determining the constitutionality of the NSA program is balancing the government's interest as reflected in the efficacy of the program versus the actual privacy interest compromised. This is of course because the Fourth Amendment does not demand all searches be supported by probable cause, but only that there be no "unreasonable" search and seizure. The usefulness of the metadata program is in great dispute. Leon wrote, "the government does not cite a single instance in which analysis ...of bulk metadata ... actually stopped an imminent attack." The left and the media repeatedly trumpeted this statement but ignored the rest of Leon's opinion where he did note the NSA and FBI presented a number of instances where terrorist connections were identified. These connections were significant enough that Pauley felt compelled to boldly highlight them in his opinion. Specifically, he cited the fact that metadata led to the identification of a co-conspirator of Najibullah Zazi in 2009, who attempted to blow up New York City subways as well as three others who were in the early stages of a plot to attack the New York Stock Exchange. He also noted that metadata had revealed the connection between David Headley in Chicago and the horrific Mumbai attacks. Leon had accorded little weight to these facts because the plots were "nascent" and there was theoretically time to find them with other techniques. But this latter reasoning upon review seems specious because without metadata the identity of the other terrorists might never have been discovered and, if undiscovered they easily might have successfully planned a devastating future attack. Those who argue the need for this program would appear to have the better of this argument.
As for the privacy interest compromised, because the data is never examined absent articulable suspicion that it is connected to a terrorist investigation, it is apparent that that the impact on privacy of the vast majority of American citizens is minuscule. It is true, as civil libertarians have argued, that unethical NSA employees may access the data of an ex-wife or rival. This may have even been done on a few occasions. We have had the same problem with IRS employees. As with the cop on the beat, all who have authority can occasionally abuse their power. But the answer is not to completely remove the power and authority of the police or an important agency because errant employees occasionally abuse their power. The answer is to seriously punish those who step over the line. Because the NSA, and the IRS, have computers that trace every search an employee makes, this can be done quite efficiently.
When Leon emphasizes the essential nature of telephones today, one wonders whether he has forgotten how much we relied on phones in 1979. In addition, where does his logic on reliance lead us? Are we to say that because today we all rely on air travel the TSA should not be able to search us without probable cause and thus overrule the Ninth Circuit's 2002 ruling in Torbet v. United Airlines that airport searches are legal because you could always choose not to fly?
Accordingly, to date most of those who have examined the NSA program have found it to be legal either because there is no expectation of privacy or the Constitutional balance favors the government. This includes President Obama, a former constitutional law professor. It also includes a number of Article III judges (see US v. Moalin and US v. Graham) and, as the Privacy and Civil Liberties Oversight Board (PCLOB) acknowledged, at least 12 Foreign Intelligence Surveillance Court District Court (FISC) Judges. Yet the PCLOB, divided 3-2 along party lines, found the program unconstitutional and the expectation of privacy questions raised by Leon are serious.
The Supreme Court's holdings that you have no expectation of privacy in what you share with third parties may be undercut in today's high tech world where third parties have vast information that, when accessed, can disclose almost everything about us. This is why Sotomayor questioned the long established third party doctrine and one of the reasons Leon ruled against the NSA. The counter argument is that many people today understand that, if you are not a hermit, numerous outside entities have access to your personal data. You need only look at the pop up advertisements on your computer that are tailored to your personal interests. Most of my students when questioned seemed to have reconciled themselves to this lesser expectation of privacy. Yet the line should be drawn somewhere and many would argue that the time and place to draw that line is when the government is accumulating the data. I can attest that the great majority of government employees have outstanding ethics and strong adherence to the rule of law. But the legacy of J. Edgar Hoover, Richard Nixon, Watergate and King George III runs very strong in the public mind.
President Obama may deflect this issue by placing data collection in the hands of the private providers. That would require the government to contact twelve or more companies every time it wanted basic data. An alternative would be to create an "independent agency" to hold the information. Many would see this as another arm of the government, and the government would feel hindered if it had to get court orders based on articulable suspicion or probable cause to access the data. Regardless, for the defense of privacy reasons indicated above, if Paul's lawsuit gets by standing and other procedural questions, and if the program is reviewed by the Supreme Court as it now exists, it is my opinion that a combination of liberal and libertarian thinking would lead to a conclusion that it is unconstitutional. A court opinion would also likely lead to the imposition of strict procedural standards before the data can be accessed under any new program. The trend of our culture is away from Smith and Miller and towards the thinking expressed by Sotomayor.
A Supreme Court opinion of this nature would be unfortunate. Those who so ardently defend what in reality might be insignificant effects on civil rights forget that the most important right of all is the right to life and that even the UN human rights community has acknowledged that a fundamental responsibility of governments is to protect the lives and security of their people. Daniel Saperstein and Richard Posner have noted [PDF] that in the UK, Germany, and other European nations, the government may access phone communications including content when national security is at stake without traditional judicial intervention and without meeting our high standard of probable cause. In the UK, interceptions only must be "necessary and proportionate" and in Germany there must be "actual indications" of terrorist activity. The US, however, with the FISA statute in 1978 applied criminal law standards to national security issues and our national security agencies have faced great challenges ever since. It would be helpful if the government's job could be made a little easier by a favorable Supreme Court decision supporting the NSA in Rand Paul's case. I doubt that will happen.
Ronald Sievert is an adjunct professor at the University of Texas School of Law as well as Senior Lecturer and Director of the Certificate in Advanced International Affairs Program at the Bush School of Government and Public Service at Texas A&M University, specializing in national security and federal criminal law. Professor Sievert has published two books on national securities as well as nine law review articles. Professor Sievert also served four years as an officer in the Army, 25 years as a DOJ trial attorney and supervisor, and previously held the position of DOJ Assistant Director in charge of evaluating the nation's US Attorney's Offices.
Suggested Citation: Ronald Sievert, Senator Rand Paul's Lawsuit Has a Good Chance of Success on the Merits, JURIST - Forum, Feb. 20, 2014, http://jurist.org/forum/2014/02/ronald-sievert-paul-lawsuit.php
This article was prepared for publication by Kenneth Hall, assistant editor for JURIST's Academic Commentary service. Please direct any questions or comments to him at firstname.lastname@example.org