FISC Judge McLaughlin’s Opinion

On October 18, 2013, Presiding Judge Walton ordered the publication, in redacted form, of a Memorandum Opinion and Primary Order that FISC Judge Mary A. McLaughlin had issued on October 11 in connection with reauthorizing the telephony metadata program. Memorandum and Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things From [Redacted], Docket Number: BR 13-158 (FISC Oct. 11, 2013) (the “Opinion”). See also Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Docket Number: BR 13-158 (FISC Oct. 18, 2013)(ordering publication).

In her opinion, Judge McLaughlin “agree[ed] with and adopt[ed] Judge Eagan’s analysis,” but also reasoned that by re-enacting Section 215 of the Patriot Act without change in 2011, Congress had ratified the broad interpretation of that Section’s relevance requirement on which the telephony metadata program was based. Despite acknowledging that “the existence of [the telephony metadata] program was classified until several months ago,” the judge reasoned that ratification had occurred because “many members of Congress were aware of, and each Member had the opportunity to learn about, the scope of the metadata collection and this Court’s interpretation of Section 215.

In addition, Judge McLaughlin rejected the view that the Supreme Court’s decision in United States v. Jones in 2012 cast doubt on Judge Eagan’s reliance on Smith v. Maryland to find that the bulk collection of telephony metadata did not constitute a Fourth Amendment search. Here, she reasoned that Justice Scalia’s majority opinion in Jones was irrelevant to the telephony metadata program because the physical attachment of the GPS device was his basis for finding a Fourth Amendment search. She ignored the recognition, in footnote 6 of Justice Scalia’s opinion, that United States v. Knotts, 460 U.S. 276 (1983), had “reserved the question of whether ‘different constitutional principles may be applicable’ to ‘dragnet-type law enforcement practices’ of the type that GPS tracking made possible here.” By contrast, Judge McLaughlin recognized that the five concurring justices in Jones had “suggest[ed] that the precise, pervasive monitoring of a person’s location could trigger Fourth Amendment protections even without any physical intrusion.” In distinguishing the Jones concurrences away on the ground that the telephony metadata program does not involve “location information,” Judge McLaughlin failed to recognize that by including “trunk identifier” in the definition of “telephony metadata” in footnote 1 of her order, she had specifically authorized the collection of location information (See Patrick Di Justo, “What the NSA Wants to Know About Your Phone Calls,” The New Yorker, June 7, 2013 (stating that trunk identifiers “can reveal where [each] call enter[s] the trunk system” and can be used to “locate a phone within approximately a square kilometer.”)). Judge McLaughlin also reasoned that Smith remained controlling because, notwithstanding Justice Sotomayor’s doubts, the Jones Court did not reconsider the doctrine that Fourth Amendment protections do not extend to information revealed to third parties.

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