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Judge’s Decision Striking NSA Program Will Not Stand

December 18th, 2013 - 6:47 pm

Judge Leon’s Sleight of Hand

Judge Leon claims his conclusion that the NSA’s metadata collection violates the Fourth Amendment is supported by the Supreme Court’s 2012 decision in United States v. Jones. He could not be more wrong.

Jones involved the surveillance by GPS tracking device, without a valid warrant, of a vehicle’s movements for nearly a month. In holding that the surveillance in Jones violated the Constitution, the very first point Justice Antonin Scalia’s majority opinion makes is: “It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” That is, Jones is a “constitutionally protected area” case. Contrary to the NSA metadata case before Judge Leon, Jones does not rely on judicial suppositions about “expectation of privacy” to implicate the Fourth Amendment.

Judge Leon attempts to sidestep this inconvenience by mining two of the concurring opinions in Jones (by Justices Sotomayor and Alito) as if they echoed the high court’s rationale. But of course, they do not – they are concurrences precisely because they do not reflect the opinion of the Court’s majority.

“Expectation of privacy” is a judicially legislated add-on to the original Fourth Amendment. It is rooted in the concurring opinion of Justice John Marshall Harlan in the 1967 case of Katz v. United States. (Unlike the just discussed concurrences in Jones, Justice Harlan’s Katz concurrence is authoritative because it was adopted by Supreme Court majorities in subsequent cases.)

My point here is not to quibble with “expectation of privacy.” Like many judge-made doctrines, “expectation of privacy” is a jurisprudential fact of life even if it does not reflect the Fourth Amendment as originally understood. My contention, instead, is: If you are going to hang your hat on a doctrine manufactured by the Supreme Court, you have to accept the limitations the Supreme Court has put on it. On the matter of metadata, the Supreme Court unambiguously ruled in Smith v. Maryland that there is no constitutionally cognizable expectation of privacy in phone number subscriber information, phone numbers dialed, and the duration of calls. A district judge may not like Smith v. Maryland, but he is obliged to follow it.

Judge Leon flouted this obligation. He endeavored to camouflage this brute fact with a couple of populist flourishes. Leon first contended that the “threshold question” he was called on to answer was:

[W]hether 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?

This would be a fine argument if Leon were a congressman seeking to amend the Patriot Act. As a legal argument, it is nonsense.

The Supreme Court has already held that there is no reasonable expectation of privacy in metadata. It is black letter Fourth Amendment law that a person may not enforce another person’s Fourth Amendment rights, so the fact that the government is collecting metadata for “hundreds of millions of other citizens” is irrelevant to the plaintiffs’ Fourth Amendment claim. The fact that the government acts “without any particularized suspicion of wrongdoing” and “without prior judicial approval” only matters if the thing it is searching or seizing is protected by the Fourth Amendment. Metadata is not – to repeat: (a) it is not within the four categories set forth in the amendment, and (b) the Supreme Court squarely held in Smith that there is no expectation of privacy in it. (As I’ve noted before, when I was a prosecutor, I did not need a particularized suspicion of wrongdoing or a judge’s permission to look up a number in the phone book – the information therein is not constitutionally protected.)

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Top Rated Comments   

" Had this procedure been in effect before 9/11, it might have tipped off investigators,"

Might have? Excuse me if I feel a bit underwhelmed. There were more than enough clues to have stopped the 9/11 bloodbath. We don't need any more Jamie Gorelick types "protecting" us. There is no need to subvert the Constitution to be safe.
1 year ago
1 year ago Link To Comment
"Like it or not, the collection and perusal of business records that are not your property – that are actually the property of your telephone service provider, even though they pertain to your usage of the service – are in no way a search or seizure of your person, house, papers or effects."

They obviously ARE such a violation. Business records are private property, not something the government may appropriate just because it feels like it. To say that the private records of communication between myself and Verizon are actually in the public domain and something the government may demand at any time makes of mockery of the Fourth Amendment rights of both myself and of Verizon.
1 year ago
1 year ago Link To Comment
The point Andy's article is sound. Judicial "activism" is not just "active"'s radioactive. We feel the effects years after and it makes us weak and vulnerable. It usurps a power not consistent with checks and balances built into our system to avoid abuses.

So, I take no issue...none at all..:with Andrew's instincts. They are spot on as far as they pertain to improper judicial "activism". Jurist nullification is no better than jury nullification, in many ways, worse...for our system of justice.

However... a government that spies on its reporters, that sics the IRS on political opponents, that blames an innocent man for terrorist murders in Benghazi, rousts him at midnight, alerts its Propaganda Machine to broadcast him being perp walked into a jail cell, from which he is still being held.

So, what is to say that this administration that lies with impunity, shreds the Constitution, neuters our representatives, circumvents checks and balances, has IRS department heads plead the fifth because they would tend to incriminate themselves in conspiracies to commit felonies and abuses of rights, has a DOJ filled with attorneys who deny equal protection to classes of people based on race, and trains its military to treat Bible-based followers as terrorists...what is to prevent such a lawless government from taking the "mere" information of their "enemies"...who they talk to and for how long...and apply the guilt by association treatment they reserve for ...oh, let's say The Tea Party.

Or Catholics, Orthodox Jews and Evangelical Christians. And, set them up for some "extra" attention.

If this administration had done none of the myriad lawless and Constitution shredding acts, perhaps the sense of danger would be less stark. But the Dept. of Justice hired EVERY SINGLE ONE ...attorneys who show proclivities to deprive...not protect rights of a certain class of persons.

We indeed face threats from those who wish to dominate or destroy us who are outside our shores. But, perhaps the greater danger comes from those who want the same...who are inside...very inside.

We can wait for the wheels of Washington legislation move at glacial speed to stop them. Because that's the proper venue, playing by the rule book with which we are being constantly beaten to death.

A Hobson's Choice for strict adherents and believers in our Constitution.
1 year ago
1 year ago Link To Comment
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All Comments   (63)
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The article was logically consistent. My question is why don't I have a reason to expect privacy from those with whom I contract for services? If I do (and I haven't read my AT&T contract), then how can the service provider simply be run over by the government and forced to provide my metadata? Further, have we not learned that the government is, in fact, storing the content of all of the telephony traffic?
1 year ago
1 year ago Link To Comment
This might actually be the worst article I've read on PJM. Mr. McCarthy, you are nothing but a statist. You put statue above the constitution and cannot be trusted to defend either.
1 year ago
1 year ago Link To Comment
As I read the article, I was thinking, "wonder what the comments will be?" because I wasn't feelin' it from good ole Andrew. He didn't make his case. Big government has NEVER been able to scale back on knowing more about it citizens which is how Goerge Orwell was able to write "1984". Even with the administration I trusted, I don't like this program and under the Obama administration it is the happy pill on steroids. Bush gave the NSA all the power in the world when the Patriot Act was passed. It was a "Get out of jail free" card for the NSA. Perhaps Snowden put some of our military secrets in jeopardy, I don't know, but I do know that the power of the NSA that he revealed was what we all expected. Mr. McCarthy, your argument looses big time this time.
1 year ago
1 year ago Link To Comment
Andy says, "only your number is in the NSA’s database, not you."
He then says," the details about, but not the content of, communications – do not implicate the Fourth Amendment. If the Fourth Amendment is not implicated, then the government’s collection and perusal of these records does not violate the Constitution, case closed."

While I too agree with Andy from a purely technical point of view, it just does not seem exactly correct. He says the content is not collected - how the hell does he know? HOW DO WE KNOW - BECAUSE THE GOVERNMENT SAYS SO?

At this point it is logical to assume the US government (and maybe others) have the ability to harvest every byte of digital data produced on the entire planet (by any electronic means), and then stored for up to 100 years. That would be a logical assumption at this point.
Further, how many supreme court rulings that stand as law right now - cough-John Roberts-cough - that are prima-fascia UNCONSTITUTIONAL?

Of course I am just a kook who thinks the constitution does not authorize SSI or Medicare, so there's that.
1 year ago
1 year ago Link To Comment
Andrew you argument is based on a false premise. First we must establish where the Court gets it powers to protect Government from the crimes or Constitutional violations they commit. By your logic of only a very small percentage of the information would be harmful to the individual.

Therefore it might be OK if one murders just one person out of the 300+ million in the US? That is a unjust premise just like your presentation is made without establishing a proper foundation.

The courts usurped powers they did not have under Article III in Marbury V. Madison and McCulloch V. Maryland, and then using these powers, have given the Legislature and the Executive powers not included in the four corners of the Actual Constitution. By allowing usurpation, America is now not a LIMITED CONSTITUTIONAL REPUBLIC - we are now acting like a DEMOCRACY! Majority rule is now writing and enforcing laws that clearly are unconstitutional, if you limit the Constitution Rule- By- Law to the exact language within the four corners of the Compact.

IN 2013 and we are clearly operating under Majority Rules or a Rule-By-Man system. The Executive issues orders to stop enforcing laws, and also, to enforce Executive orders that are not constitutional or within the powers of that office. The Legislature makes laws that have no foundation inside the four corners, by using the clauses - as the courts did in the above referenced cases. The nine Black Robes of the Supreme Court invent whatever they like as evidenced by the number of 5 to 4 OPINIONS - either something meets the LIMITS of the actual words - or it does not. How can Lawyers consult, argue, and review case law precedent and then just issues’ findings that are not connected to the actual FOUNDATION of our laws - the CONSTITUTION?

[Example: the Health Care tax that the Supreme Court invented to save Obamacare]

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” ~ James Madison.

(1807-1815) The Writings of Thomas Jefferson-Part 1 Beginning on Pg 53.

"DEAR SIR, While Burr's case is depending before the court; I will trouble you, from time to time, with what occurs to me. I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law."

"I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; &: I think the present a fortunate one. because it occupies such a place in the public attention. I should be glad therefore. if, in noticing that case you could take occasion to express the determination of the executive, that the doctrines of that case were given extra judicially & against law, and that their reverse will be the rule of action with the executive."
1 year ago
1 year ago Link To Comment
"Anyone claiming to be a “constitutional conservative” should admit that, if we were dealing with the original Fourth Amendment, the case would be over."

Certainly it would be over, the constitution prohibits general warrants.

"the program is likely to be neutered."

I hope so, and the people who administered and abused it, jailed.

There's no excuse for anything else.
1 year ago
1 year ago Link To Comment
Mr. McCarthy, are you really so stupid as to not see the inherent, abject, irreconcilable contradiction in these quoted sentences of yours? Or is it that you think we are stupid enough to buy it as written?

"Significantly, the metadata collected and stored by the NSA does not include identifying details, such as the names and addresses of the interlocutors. Essentially, the government is collecting the phone numbers involved in, and the duration of, the communications. The purpose is to connect the phone numbers and calling patterns of suspected foreign terrorists with phone numbers and calling patterns used in this country."

Phone numbers are identifying details. They have to be, or they can't serve the purpose you've just described.
1 year ago
1 year ago Link To Comment
Maybe if you fight for this decision to stand instead of prophecying its doom - maybe it will stand, Mr. McCarthy.
I think too many Americans have caught the disease 'hopelessnessitis'.
But I guaranty you it's not a condition that Vince Lombardi ever suffered from.
1 year ago
1 year ago Link To Comment
Where did you get the idea he regrets the supposed nullification of this decision?

He's vile enough to like the idea.
1 year ago
1 year ago Link To Comment
More and more Americans are calling for Revolution—a demand that Obama “put down the Quran and leave the White House”—with a renewed scrutiny of Obama’s birth certificate after it was revealed in the lawsuit Klayman v. Obama that there existed multiple versions of Obama’s birth certificate—proving it’s a forgery.

1 year ago
1 year ago Link To Comment
The telephone and its use has changed drastically since 1979. Phones are much more personal and are much more attached to your person than the old land lines that served families. Your phone has become an effect containing information of a private and personal nature much like your purse or billfold. Todays phones track and record your every move and the phone metadata is a record of my travels and contacts which has the effect of tracking me without a tracking device and doesn't even require the gps.

The problem here, that you ignore in your whining about the expectation of privacy, is there is considerably more information provided than just the recorded metadata. If it to be captured and analyzed, a lot can be inferred from it, most of it of no concern to the government.

Mr. McCarthy, you exemplify the new conservative tenant of supporting anything that gives you an opportunity to further justify poking your nose into other peoples business. You seem to find little use for privacy and believe there is no expectation of privacy. The invasion of our lives by government monitoring is unreasonable. We have the most un-Constitutional, un-American assault on our liberties by the Patriot Act. That is a case where my liberty has been sacrificed for a failed policy focused on Iraq and then they covered their failure with a law attacking my liberties, out of necessity, national security they say. And now we have a law authorizing every jackass in 19 counties to keep track of me and everything I say and secretly incarcerate me if I say something they don't like.

I listen to the idiots squealing about their Second Amendment rights, but saying nothing about the violations of our Fourth and Fifth Amendment rights. They're obviously so busy wailing and crying about the government knowing anything about gun ownership they don't realize the NSA and the DEA and ATF all have plenty of information about them and their guns. I fully expected gun people to be concerned about the government looking over our shoulder. No, they are too concerned a terrorist is going to bite their butt.

I don't need this kind of protection. There are enough other ways to get it done and leave me out of it. I'd say the new conservatives have about a 4 to 1 advantage in passing laws that enable the government to poke it's nose in our business. All that crap about liberty and freedom is talk, the laws passed by conservative legislatures and offered in the House, all of which contain some effort to poke the governments nose in to peoples private affairs is the walk and they ain't walking the walk for the talk. This so-called conservative crap has no relation to freedom or liberty except to justify the violation of freedom, liberty, justice or equality. Judge Leon is right. Metadata is my effects in that it contains information personal to me and constitutes an unauthorized tracking of everything I do. It's no different than putting a tracking device on me personally.

Every time I turn around, one of the preachers of freedom and liberty is trying to pass some law to restrict one or both. I think you are taking liberties with the value and usefulness of our data in assuming it is not wrong to collect it.

I'm still old fashioned enough to believe your best bet in life is to not go sticking your nose under my tent because I'll whack it off.
1 year ago
1 year ago Link To Comment
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