Fourth Amendment

NSA Ruling Reminds Us That Sacrificing Civil Liberties in the Name of National Security Is a Bipartisan Impulse

A federal appeals court concludes that the agency's mass collection of phone records was illegal and probably unconstitutional.

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The U.S. Court of Appeals for the 9th Circuit yesterday ruled that the National Security Agency's bulk collection of Americans' telephone records was illegal and probably unconstitutional. For Democrats who see Donald Trump as an unprecedented threat because of his disregard for the Constitution, the decision is a useful reminder that sacrificing civil liberties on the altar of national security is a bipartisan rite.

The NSA program, which was revealed by former NSA contractor Edward Snowden in 2013, indiscriminately collected telephone "metadata"—indicating who was calling whom and how long they talked—about millions of Americans for years. The program, which the USA FREEDOM Act ended in 2015, began under George W. Bush but continued during Barack Obama's administration, which concealed its existence, then speciously defended its legality and usefulness.

"The administration has now lost all credibility," The New York Times editorialized after Snowden's revelations. "Mr. Obama is proving the truism that the executive will use any power it is given and very likely abuse it."

James Clapper, the Air Force general whom Obama appointed as director of national intelligence, epitomized the administration's dishonesty by blatantly lying to a Senate committee about the NSA's data collection practices three months before the phone record database was revealed, then repeatedly lying about lying. In his latest incarnation, Clapper is a vociferous Trump critic who blames Russia for the election of a president he despises as a man "whose first instincts are to twist and distort truth to his advantage."

Further scrambling the conventional understanding of which major party is more concerned about civil liberties, Obama tried to prosecute Snowden, while Trump, who in 2013 called Snowden "a traitor" who "should be executed," last month suggested he might pardon the NSA whistleblower. Another interesting point Democrats might prefer to overlook: While questioning the constitutionality of the NSA's metadata dragnet, the 9th Circuit cites Supreme Court Justice Neil Gorsuch, a Trump nominee who is a more reliable defender of the Fourth Amendment than the judge Obama wanted to appoint.

I am not for a moment suggesting that Trump's new respect for Snowden, which is probably driven by his pique at "deep state" foes like Clapper, or his choice of Gorsuch, which was based on what he thought conservatives wanted, reflects civil libertarian principles (or any principles at all). But as this case shows, Trump's polarizing personality tends to obscure the deeper problem of powers that tempt presidents to violate our rights, regardless of their personal traits, avowed principles, or party affiliation.

The prosecution that led to the 2nd Circuit's decision involved four Somali immigrants who were convicted in 2013 of sending money to the terrorist group al-Shabab. While the ruling does not affect those convictions, it addresses the legality of the NSA's phone record database, which supposedly played a crucial role in the case.

I say "supposedly" because that is what federal officials claimed while defending the NSA's program. Then-FBI Deputy Director Sean Joyce, for example, told a congressional committee the database generated a tip that allowed the bureau to reopen its investigation of the suspected al-Shabab supporters. The 2nd Circuit rightly discounts such statements, which were part of a fact-deficient attempt to portray the program as an essential weapon against terrorism.

"The metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial," the appeals court says. "To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record." That's a polite way of saying that Obama administration officials misled the public about the program's value.

What about its legality? As the U.S. Court of Appeals for the 2nd Circuit did in 2015, the 9th Circuit makes short work of the government's argument that the program was authorized by Section 215 of the PATRIOT Act, which allowed secret court orders "requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation…to protect against international terrorism." Such orders were supposed to be based on "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation."

Using the same needle-in-a-haystack argument that was deployed by the Obama administration, the government's lawyers maintained that everyone's phone records are "relevant to an authorized investigation" because searching them might reveal useful clues. "Although admittedly a substantial portion of the telephony metadata that is collected would not relate to [terrorism suspects]," they said, "the intelligence tool that the Government hopes to use to find [investigation-related] communications—metadata analysis—requires collecting and storing large volumes of the metadata to enable later analysis." According to the government, "all of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collection."

The 2nd Circuit said "such an expansive concept of 'relevance' is unprecedented and unwarranted," and the 9th Circuit concurs. The government's interpretation "essentially reads the 'authorized investigation' language out of the statute," it says. "We hold that the telephony metadata collection program exceeded the scope of Congress's authorization."

As for the program's constitutionality, the government argued that it was covered by the third-party doctrine, which says people do not have a reasonable expectation of privacy regarding information they voluntarily divulge to others (in this case, the phone companies from which the NSA collected its metadata). The Supreme Court invented that doctrine in United States v. Miller, a 1976 case involving bank records. Three years later, the Court invoked the doctrine in Smith v. Maryland, which involved a warrantless "pen register" that police used to record the numbers dialed by a robbery suspect over the course of a few days. Although that situation is rather different from the collection of personal information about millions of people for years, the government argued that Smith shows the NSA's program was consistent with the Fourth Amendment.

"There are strong reasons to doubt that Smith applies here," the 9th Circuit says. "The distinctions between Smith and this case are legion and most probably constitutionally significant….Society may not have recognized as reasonable Smith's expectation of privacy in a few days' worth of dialed numbers but is much more likely to perceive as private several years' worth of telephony metadata collected on an ongoing, daily basis—as demonstrated by the public outcry following the revelation of the metadata collection program."

The Supreme Court in Smith drew a distinction between the "contents" of a phone call and information about numbers dialed, deeming the latter much less sensitive. But "in recent years the distinction between content and metadata 'has become increasingly untenable,'" the appeals court notes. "The amount of metadata created and collected has increased exponentially, along with the government's ability to analyze it."

The 9th Circuit emphasizes how revealing this information can be, quoting former NSA General Counsel Stewart Baker. "Metadata absolutely tells you everything about somebody's life," Baker said. "If you have enough metadata you don't really need content."

The appeals court illustrates that point with a couple of examples: "A woman calls her sister at 2:00 a.m. and talks for an hour. The record of that call reveals some of the woman's personal information, but more is revealed by access to the sister's call records, which show that the sister called the woman's husband immediately afterward. Or, a police officer calls his college roommate for the first time in years. Afterward, the roommate calls a suicide hotline."

And that's just for a start. "Metadata can be combined and analyzed to reveal far more sophisticated information than one or two individuals' phone records convey," the 9th Circuit notes before quoting a brief filed by the Brennan Center for Justice: "It is relatively simple to superimpose our metadata trails onto the trails of everyone within our social group and those of everyone within our contacts' social groups and quickly paint a picture that can be startlingly detailed."

The 9th Circuit notes that the Supreme Court expressed similar concerns in Carpenter v. United States, the 2018 case in which the justices said the third-party doctrine does not apply to cellphone location data. Furthermore, the appeals court says, "numerous commentators and two Supreme Court Justices have questioned the continuing viability of the third-party doctrine under current societal realities."

Here is where Gorsuch comes in. He dissented in Carpenter, not because he thought cops should be allowed to collect cellphone location data without a warrant but because he thought the third-party doctrine should be scrapped entirely, along with the malleable "reasonable expectation" test. Nowadays, Gorsuch noted, people routinely store sensitive information—including "private documents" that, "in other eras, we would have locked safely in a desk drawer or destroyed"—on third-party servers. According to the reasoning of Miller and Smith, he said, "police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did."

The 9th Circuit did not reach a firm conclusion about the constitutionality of the NSA's program, because it was not necessary to decide whether the convictions should stand. But its observations show how readily the government invades our privacy on the flimsiest pretext, blithely dismissing constitutional concerns when they prove inconvenient. That alarming tendency cannot be corrected by switching out one politician for another.

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  1. Maybe the Ninth isn’t so nutty after all.

      1. Times are changing…

        Thank God Obama would have rather played golf than done his job and appointed judges for all of those vacancies.

        1. Just because they are right on one thing doesnt mean it changed altogether

          That said, the state doesnt change as to data collection

          Nsa was declared unconstitutional like 6x. It still does it. Anybody who thinks courts stop the federal government has too much trust in democracy

          It is unfortunate but the reality of statism

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        2. Actually my ideal president would spend most of their time playing golf, hosting dignitaries and attending dinners. Maybe actually work a total of 2 or so days a week.

          Less harm that way.

          One of the things that bothers me about Trump is he seems so wound up all the time. He doesn’t sleep much I hear. Other than golf he does not seem to go for entertainment. Watches news channels all the time. He should chill. I think Snoop Dog should run. He is the king of calm and chill.

    1. They are but as the saying goes, “Even a blind squirrel finds a nut once in a while.”

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    3. Not much of a win. Still collecting data without a warrant on millions of Americans was not ruled unconstitutional. That is a travesty. Clapper should be prosecuted for millions of crimes.

    4. Trump, having appointed 10 of the 29 judges on the US Court of Appeals for the Ninth Circuit, might have had an influence.

      I thank Mr. Sullum for a good article. Rather than:

      Trump’s new respect for Snowden, which is probably driven by his pique at “deep state” foes like Clapper, or his choice of Gorsuch, which was based on what he thought conservatives wanted, reflects civil libertarian principles (or any principles at all)

      it seems very possible to me, Trump always had respect for Snowden (and a very libertarian list of SCOTUS nominees, and Gorsuch) but lied about it to keep the some of the state on his side. Trump’s made no effort to prosecute Snowden. Trump attacked Paul immediately in the first debate, but is friends with him now – he wanted to be the candidate on the side of liberty. Trump does engage in marketing BS, but I kind of prefer that to false promises. And he often succeeds unexpectedly, such as the EO eliminating subsidies to Big Pharma and foreign nations where they sell drugs at lower costs to them than to Americans – that’s a big libertarian win.

  2. >>sacrificing civil liberties on the altar of national security is a bipartisan rite.

    bipartisan in there are two parties (RD) and the Ruled … not bipartisan in the “oh my gawd (R) and (D) agree on something and everyone benefits” …

    1. Like participating (votes), or “we’ve got to do something,”

      Hey we worked together. Here is your cookie

  3. Speaking of security, WaPo oped threatening guerrilla warfare on the streets of the U.S. if Biden does not win in a LANDSLIDE.

    Threatened all wrongthink with cancellation, censored and scrubbed from the web, then fired. Threatened the SCOTUS, a few times. Ongoing threats to our biggest cities with violence and destruction of property. Now…threatening all U.S. voters who vote the wrong way, with death and destruction in the streets.

    1. >>WaPo oped

      good thing only fourteen people saw it.

    2. I took a peek at the washington post op eds to see if I could find the one you were referencing. The level of propaganda is shocking. It reminded me of turning on the radio for the first time in years a month ago and realizing just how much covid panic gets pushed on people. Every other commercial was based around how they were “protecting” their customers from the covid boogeyman. The opeds were the same kind of constant panic beat except about how horrible Trump is.

      I guess it makes sense Reason writers have lost their minds. Most people don’t do well at resisting constant propaganda.

    3. Ironic the BBC didn’t out and out condemn the Charlie Hebdo killings.

      They do realize at the Post, don’t they, that if they get their stated desire for Resistance! and War!, that enemy propagandists are hung?

    4. So if the left doesn’t get what they want, they’re threatening to burn down their own neighborhoods?

    5. “WaPo oped”

      So… straight from the CIA

      1. The opinion editor’s office is in Langley. Has been for almost 60 years now.

  4. Good News!
    Now; who is going t jail, and when?
    Anyone?
    *crickets*

  5. Now pardon Snowden.

    1. does California no longer accepting SAT and ACT scores exonerate Auny Becky?

      1. She can only get exoneration through some sweet monkey lovin with me.

        And test scores are racist. Surely you know that.

    2. Depends on what else he blabbed about, but I’m open to the idea.

      Oh, and LOL at the NSA restricting themselves to metadata. The tech existed, and was cheap enough for an entity with their resources, to record and store every conversation and fax transmitted within the US in 2001. I don’t believe they wouldn’t have done it.

  6. O/T – African Historian Jessica Krug admits she lied about being black: ‘I cancel myself’

    The new Rachel Dolezal.

    1. Krug is defiantly one of the biggest seeds out there

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  8. The lack of a difference between the parties seems to be a consistent theme at Reason as the election approaches–regardless of all the important differences between the two major parties.

    One major party’s candidate is promising to pass the Green New Deal if he’s elected–at an additional cost of $2 trillion over the first four years–and the other is promising to veto The Green New Deal if Congress passes it.

    The party that controls the House has already passed a $3.5 trillion stimulus plan that sends $1 trillion to the states–to keep the states from laying off government workers and reforming their out of control pensions systems. But the party that controls the Senate is so far proposing zero stimulus instead.

    There are plenty of other differences to talk about on issues from going to war in Syria to getting out of Afghanistan . . .

    The things that will remain the same regardless of who wins (like the NSA) may be important, but making our decision on the basis of outcomes that won’t change regardless of what we decide is irrational. Whether we have a president that will sign the Green New Deal, whether federal taxpayers bail out the pension systems of California, Illinois, and New York, and whether we get out of Afghanistan forever, on the other hand, those are dependent variables–the outcome depends on how we vote.

    America will be a different place if Joe Biden is elected than it will if President Trump is reelected–regardless of whether the NSA remains more or less the same.

    1. You may think you sound like a broken record, Ken, but keep at it. You convinced me, and more importantly, I’ve used your bullet points (on the Green New Deal, the Medicare benefit fight, and Afghanistan) to convince other people.

      Or they were being polite, who can say?

      The point is, your message is compact, easy to repeat, and useful. Thanks for it.

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  9. The words “in” through “security” are wholly unnecessary.

  10. Trump’s a badge-licker and a boot-licker and, like Diane Feinstein, is only concerned about the intelligence agencies abusing their authority to spy on Americans insofar as they’re spying on him personally, so the idea that he was serious about pardoning Edward Snowden is laughably ridiculous. Hell, he called Snowden a traitor and suggested he should be executed.

  11. Breaking: Michael reinhoel shot, killed by police. Story developing.

    1. The problem is do the other conspirators get off the hook?

  12. O/T – RIP, Tom Seaver

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  14. Another reason to support libertarians and vote for Jo Jorgensen for president.

    It is time to let the demorepublicrats know that we are fed up and let our voice be heard.

  15. So much for “the libertarian case for Obama.”

    I’m starting to think that maybe the authors around here simply lack any acceptable level of judgement…

  16. Yes I agree completely with the views in this article.

  17. The tip of the iceberg.

    Last year after dinner my buddy mentioned In passing we should go out for wings the next Thursday. Siri was listening and put a reminder in my phone schedule.

    Just the other day a friend texted me for help with a small job. She texted that we could get the materials that evening. Within seconds Siri made a reminder to do just that in my phone schedule.

    As we discussed that she told me that last year her friend took a picture of her kayaking. Never posted it or sent it anywhere. She received several invites on HER phone to join various kayaking clubs.

    Think about the complexity of the programming to do all that and the thousands of people from many organizations that it would have involved.

    All of them coerced not to say a word or face persecution.

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  19. You dumb fucks believe everything you are spoon-fed by hopeless propaganda clowns like Sullum. I’d respect a decision that the program was unconstitutional. The claim it went beyond what Congress authorized is beyond absurd. PA 215 was created for the sole and exclusive purpose of authorizing *this* program and no other.

    Oh, and Snowden didn’t just leak this program. He downloaded thousands of highly classified documents indiscriminately and provided them to his press stooges on the condition that he would be the hero of their story, and well as keeping copies for himself. He threatened, along with Greenwald, to dump them all if Snowden is arrested. Snowden is a traitor and you are ignorant.

    1. Sullum is definitely over the target.

  20. Trump did an interview on Fox mentioning the LP getting 4.5% of the vote. But instead of legalizing acid and weed and firing the IRS, he whined that he was “kinda” libertarian and that we were “wasting our votes.” Republicans in Congress are more concerned with bullying pregnant girls, shooting youths and robbing assets over plant leaves. The question is, can Trump survive the superstitious cowardice of the Republican Party?

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