The District Court’s decision
Smith v. Obama, Case No. 2:13-cv-00257, slip opinion, 2014 WL 2506421 (D. Idaho June 3, 2014)The complaint in this case, alleging that the telephony metadata program “exceeds the authority granted by 50 U.S.C. Sec. 1861” and violates the First and Fourth Amendments, was filed on behalf of Anna Smith, “a mom and neonatal intensive care nurse,” on June 12, 2013. The plaintiff sought declaratory relief, a permanent injunction against the operation of the program, and the purging of all her records collected under the program.
Before the Court’s Memorandum Decision of June 3, 2014, the plaintiff agreed to the dismissal of all her claims except her claim under the Fourth Amendment. 2014 WL 2506421 at *1 n.1. In the decision, Judge B. Lynn Winmill of the federal district of Idaho dismissed the plaintiff’s Fourth Amendment claim, even though he characterized Judge Leon’s decision in Klayman v. Obama as “thoughtful and well-written,” and stated that it “should serve as a template for a Supreme Court opinion. And it might yet.” At *3-4 (Judge Leon’s opinion is discussed at 4(a) above). Despite praising Judge Leon for “eloquently observ[ing that] ‘[call detail] records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic – a vibrant and constantly updating picture of a person’s life,’” Judge Winmill claimed that he was constrained by precedent. Relying on the Supreme Court’s decision in Smith v. Maryland and the Ninth Circuit’s opinions in United States v. Reed, 575 F.3d 900 (9th Cir. 2009), U.S. v. Forrester, 512 F. 3d 500, 510 (9th Cir. 2008), and U.S. v. Golden Valley Elec. Ass’n, 689 F.3d 1108, 1116 (9th Cir. 2012), he held, contrary to Judge Leon, that the telephony metadata program did not constitute a Fourth Amendment search. At *3-4.
Arguably, Judge Winmill’s appeal to stare decisis is inconsistent with his acceptance of Judge Leon’s position that Smith v. Maryland can be distinguished away because “the scope and duration of the NSA’s collection is far beyond the individual pen register at issue in Smith.” At *3. On the same grounds, the NSA’s program of collecting, storing for five years, and correlating metadata on all telephone calls made and received in the United States is distinguishable from the pen/trap devices used, in the Ninth Circuit’s Reed and Forrester cases, to gather the telephone and Internet metadata of particular people suspected of particular crimes. The NSA program is also distinguishable in “scope and duration” from the collection in Golden Valley of particular customers’ utility company records for the purpose of investigating particular crimes. Very arguably, then, Judge Winmill’s failure to follow Judge Leon is not supported by any of the precedents on which he relied.
In his decision, Judge Winmill also opined that if the telephony metadata program involved the collection of location information, the Supreme Court’s decision in United States v. Jones might provide a basis for finding a Fourth Amendment search. He stated, however, that “[w]hile there is speculation that the NSA is tracking location, there is no evidence of that, and the agency denies it.” At *3. Judge Winmill’s finding of “no evidence” very arguably contradicts his explanation of how callers’ locations can be tracked by “trunk identifier” information. At *2 and *2 n.3 and n.4. As indicated in the Primary Order of January 3, 2014, the FISC continues to authorize “trunk identifier” data to be collected under the telephony metadata program. At 3 n.2
Proceedings before the United States Court of Appeals for the Ninth Circuit
On September 2, 2014, an opening brief was filed on behalf of Anna J. Smith. The EFF, ACLU and ACLU of Idaho joined Mrs. Smith’s Coeur d’Alene, Idaho attorneys on the brief. On September 9, amicus briefs on behalf of Mrs. Smith were filed by the Electronic Privacy Information Center (“EPIC”), Senators Wyden, Udall and Heinrich, the National Association of Criminal Defense Lawyers, the Center for National Security Studies, the Reporters Committee for Freedom of the Press, and PEN American Center.
The briefs and other court documents in the case are available here.
Oral argument before the United States Court of Appeals for the Ninth Circuit was heard on December 8, 2014. A video of the oral argument is available here.
As will be discussed, there has been additional litigation before the Ninth Circuit in the wake of the USA Freedom Act.