ACLU v. Clapper, 959 F.Supp.2d 724 (2013) (granting government’s motion to dismiss and denying ACLU’s motion for a preliminary injunction)In this action in the federal district court for the Southern District of New York, plaintiffs ACLU and New York Civil Liberties Union (“NYCLU”) relied on the FISC Order leaked by Snowden to allege that as customers of Verizon Business Network Services, Inc., metadata on all their telephone conversations had been and was being collected by the NSA. Reasoning that this surveillance compromised sensitive information about their work and undermined their ability to engage in legitimate communications with clients, journalists, advocacy partners, and others, the ACLU and NYCLU claimed that the telephony metadata program violated their rights under the First and Fourth Amendments of the Constitution and was not authorized by Section 215 of the Patriot Act.
Judge William H. Pauley III’s opinion was marked, throughout, by the fear of terrorism displayed in its first sentence: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous … the world is.” The opinion was also marked by unquestioning acceptance of the government’s widely criticized claims that the telephony metadata program had been needed to prevent 9/11 and had subsequently prevented various terrorist plots. (For criticism of the government’s claims, which Judge Pauley accepted, see, e.g., Lawrence Wright, “Comment: The Al Qaeda Switchboard,” The New Yorker, Jan. 13, 2014, available at http://www.newyorker.com/talk/comment/2014/01/13/140113taco_talk_wright; Justin Elliott and Theodoric Meyer, “Claim on ‘Attacks Thwarted’ by NSA Spreads Despite Lack of Evidence,” ProPublica, Oct. 23, 2013, updated Dec. 17, 2013, http://www.propublica.org/article/claim-on-attacks-thwarted-by-nsa-spreads-despite-lack-of-evidence; Charlie Savage, “Watchdog Report Says N.S.A. Program Is Illegal and Should End,” The New York Times, Jan. 23, 2014, available at http://www.nytimes.com/2014/01/23/us/politics/watchdog-report-says-nsa-program-is-illegal-and-should-end.html?hp&_r=1). While holding that the plaintiffs had standing to bring their lawsuit, Judge Pauley dismissed their statutory claims on jurisdictional grounds and their constitutional claims for failure to state a cause of action. The judge held, in the alternative, that even if the government’s motion to dismiss had not been granted, the plaintiffs would not have been entitled to a preliminary injunction because their statutory claims were unlikely to succeed on the merits. As an additional ground for not granting a preliminary injunction, Judge Pauley asserted that “[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” On this basis, he found that “the balance of the equities and the public interest tilt firmly in the Government’s favor.”
More specifically, the judge relied on exceptions to the government’s waiver of sovereign immunity against lawsuits in the Administrative Procedures Act (“APA”) to hold that the plaintiffs were not entitled to challenge the statutory authorization for the telephony metadata program in federal court. Though couched in terms of provisions of the APA, at base, Justice Pauley’s reasoning was that “[a]llowing any challenge to a section 215 order by anyone other than a recipient would undermine the Government’s vital interest in keeping the details of its telephone metadata collection secret.” The judge did not consider whether, from the point of view of protecting secrecy, the plaintiffs’ challenge to a known interpretation of section 215 was different from a challenge that would lead to unveiling previously unknown operations. In addition, Judge Pauley reasoned that a statutory challenge was precluded because the scope of the telephony metadata program would “allow virtually any telephone subscriber to challenge a section 215 order.” Arguably, however, the widespread impact of the telephony metadata program should be seen as a ground for, rather than against, allowing its statutory authorization to be assessed in an open adversarial court.
In ruling, in the alternative, that the plaintiffs’ statutory challenge would not have been likely to succeed, and, thus, would not have provided the basis for a preliminary injunction, Judge Pauley found “no traction” in the argument that “the category at issue – all telephony metadata – is too broad and contains too much irrelevant information” to satisfy the relevance requirement of Section 215. Citing FISC Judge Eagan’s opinion, Judge Pauley claimed that “the collection of virtually all telephony metadata is ‘necessary’ to permit the NSA … to determine ‘connections between known and unknown international terrorist operatives.’” In addition, Judge Pauley found that Congress had ratified the FISC and Executive Branch’s interpretation of Section 215 when it reauthorized that section in 2010 and 2011. In doing so, he brushed aside as “curious” Congressman Sensenbrenner’s assertion in his amicus brief that he would not have voted to reauthorize Section 215 had he been aware of the telephony metadata program.
Even though Judge Pauley found that, by contrast to their statutory claims, the government’s sovereign immunity did not bar the plaintiffs’ Constitutional claims, he dismissed their Fourth Amendment challenge on the merits. Here, the judge held that the telephony metadata program was squarely controlled by the Supreme Court’s 1979 decision in Smith v. Maryland that the installation and use of a pen register does not constitute a Fourth Amendment search. To find Smith controlling, even though it pertained to the brief collection of the numbers dialed from a single suspect’s phone, Judge Pauley reasoned that “[t]he collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” He disregarded Justices Sotomayor’s and Alito’s “grappling with how the Fourth Amendment applies to technological advances” in their concurring opinions in United States v. Jones on the ground that in that 2012 case, “the Supreme Court did not overrule Smith.”
On the basis of an uncritical acceptance of the Government’s claims about the limits on the number of people whose metadata is searched during NSA queries of the massive database of phone records, Judge Pauley went on to reject the plaintiffs’ First Amendment claim on the ground that “[a]ny alleged chilling effect here arises from the ACLU’s speculative fear that the Government will review telephony metadata related to the ACLU’s telephone calls.” Just as such a speculative fear was judged to be insufficient to confer standing in Clapper v. Amnesty Internat’l USA, 133 S.Ct. 1138 (2013), it was, according to Judge Pauley, insufficient to “establish a violation of an individual’s First Amendment rights.”