NSA “call-tracking” lawsuit update

October 2013

On June 5, 2013, the Guardian newspaper published a leaked order of the Foreign Intelligence Surveillance Court (FISC) that compelled the Verizon telephone company to turn over the records of all calls made by its customers during a two-month period to the U.S. government. Additional document leaks and government admissions revealed that such a “call-tracking” program had been ongoing for seven years, and involved every domestic and international call made to and from the United States. The American Civil Liberties Union (ACLU) subsequently characterized the program as “perhaps the largest surveillance operation ever carried out by a democratic government against its own citizens.”

Lawsuits filed
Within weeks of these disclosures, legal actions were brought by the ACLU, Judicial Watch, and a variety of individual plaintiffs. The ACLU filed suit in federal district court on June 11, 2013, and sought to bar the NSA from acquiring its communication records. The ACLU filed on its own behalf, as well as on behalf of its parent foundation and its New York subsidiary, since all of those entities were customers of Verizon, and thus covered by the FISC collection order.

On August 26, the ACLU filed a motion for a preliminary injunction that sought to prohibit the collection of the group’s call records during the course of its ongoing litigation. In its accompanying legal memo, the ALCU noted that it was “substantially likely” to prevail in its lawsuit, and set out an argument in support of its position. The substance of the ACLU’s critique ranged across the following main points:

1. The NSA’s call-tracking program was not authorized by existing law;

2. The program constituted a warrantless, unreasonable search;

3. The program chilled First Amendment rights

Failure to comply with existing law
Regarding the first prong of its argument, the ACLU maintained that Section 215 of the PATRIOT Act (the legal authority cited by the government in support of its call-tracking operation) did not sufficiently authorize such a broad record collection scheme. The ALCU noted that the language of Section 215 required that record collection activities needed to be “relevant to an authorized investigation” concerning terrorism or spying, and that relevance could not reasonably extend to every call placed in the United States. In the words of the ACLU:

“The program guts the concept of relevance of its usual meaning – indeed, of any meaning … It renders the concept of relevance irrelevant.”

The ALCU also noted that Section 215 only authorized the collection of records already in existence – not records that would be produced in the future, as the FISC order indicated.

Fourth Amendment violation
Regarding the second prong of its argument, the ACLU contended that the NSA’s bulk collection of telephone records was an unreasonable search under the Fourth Amendment, and should be terminated. Its memo stated that the NSA program constituted an invasion of “a subjective expectation of privacy that society recognizes as reasonable” – a definition provided by the Supreme Court in its 2001 Kyllo v. United States decision.

The memo then addressed government assertions that the collection of third party telephone metadata was not a search, since its collection did not implicate any privacy rights. Such assertions stem from an interpretation of the Supreme Court’s Smith v. Maryland decision that upheld the warrantless collection (by a “pen register” device) of numbers dialed by an individual suspect over a two-day period. The ACLU distinguished the two-day pen register collection in Smith from the NSA’s call-tracking program on the basis of scale, and noted that Supreme Court opinions in the recent United States v. Jones case indicated that the aggregation of surveillance data had a bearing on whether or not a particular investigative method constituted a search.

The ACLU then characterized the call-tracking program as a general search not restricted to particularized persons, places, or items, and thus presumptively unreasonable. The memo noted that “to pursue its limited goal of tracking the associations of a discreet number of individuals, the government has employed the most indiscriminate means possible – collecting everyone’s records.” The ACLU further noted that, “(The fact) that new technology enables the government to collect and analyze everyone’s information does not mean that the Constitution permits it.”

First Amendment violation
Regarding the third prong of its argument, the ACLU memo also stated that the call-tracking program chilled First Amendment conduct, due to the likelihood that whistleblowers and potential ACLU clients would be dissuaded from contacting the organization. According to the brief, “Any person hoping to approach (the ACLU) with proof of official misconduct would be understandably wary knowing that the government receives, almost in real time, a record of every telephone call.” Because of its lack of limits, the ACLU characterized the program’s chilling effect as occurring “on a scale without ready comparison.”

Government response
The government also filed a brief on August 26, 2013, seeking dismissal of the case. It put forward a five-point argument in support of its position:

1. First, the government sought to cast doubt on whether the ACLU was able to properly bring suit, due to a lack of “actual damages”;

2. The government also noted that Congress never provided for federal district court review of claims brought against Section 215 orders;

3. Additionally, the government’s memo stated that its call-tracking program was, in fact, authorized by law, and that Section 215 of the PATRIOT Act provided a sufficient legal basis for the program;

4. Its memo claimed that the call-tracking program did not implicate the Fourth Amendment, since it did not cover records in which people had a reasonable expectation of privacy;

5. Finally, the memo asserted that the ACLU’s claims of a “chilling effect” on associational activity lacked a substantive basis, and that the ACLU offered no evidence to show that the call-tracking program was intended to curtail constitutionally protected activities.

Argument for dismissal
The government’s brief characterized the ACLU’s suit as an “attempt to invalidate an important element of the Government’s efforts to protect the Nation from the very real and unrelenting threat of terrorist attack.” Its memo noted that the ACLU failed to “state claims on which relief can be granted” and that the court hearing the case lacked jurisdiction. “Thus,” the memo asserted, “the Complaint should be dismissed.”

Lack of standing
The government’s memo first challenged the ACLU’s standing to sue, claiming that the injuries alleged by the group were “entirely speculative.” The memo turned to the FISC’s collection order to buttress its argument. It noted that the order provided that collected telephone metadata could only be searched (or “queried”) in conjunction with “reasonable, articulable suspicion” related to foreign intelligence or terrorist activities. Thus, the government claimed, any broader impacts upon the ACLU were the subject of mere conjecture.

Lack of jurisdiction
The government further asserted that in creating the FISC court system under the Foreign Intelligence Surveillance Act (FISA), Congress intended to preclude foreign intelligence issues from being heard in federal district court. Likewise, the government maintained that Congress, through the PATRIOT Act, did “not provide for review of Section 215 orders at the behest of third parties” like the ACLU.

Statutory basis for program
The government contended that its broad application of Section 215′s “relevance” language was reasonable, based on an expansive definition of “relevance” found in several federal court cases, plus an alleged awareness by Congress of the scope of this definition. Thus, the government maintained that the bulk collection of telephone metadata was authorized by Section 215 and therefore legal. Its memo further noted that Congress reauthorized Section 215 even after its members were made aware that the government was construing the statute’s language to cover bulk metadata collection.

No Fourth Amendment violation
The government maintained that the Supreme Court’s Smith v. Maryland opinion was still good law as applied to bulk metadata collection, and that it provided a rationale for the collection of third party telephone records even though the call-tracking program was of a much larger scale that the collection in Smith. According to the government’s memo, metadata collection under the call-tracking program was not a search since it involved records held by third parties, rather than by the plaintiffs in the case. The government further stated that even presuming that such collection constituted a search, the search would be reasonable in light of its purpose (preventing terrorist attacks).

No First Amendment violation
The government’s memo tied the ACLU’s First Amendment claim to its Fourth Amendment claim. It maintained that since the call-tracking program comported with the Fourth Amendment, any claim that it violated the First Amendment would also fail. The government also noted that the ACLU offered no substantive evidence in support of its claims of a First Amendment “chilling effect.”