On November 18, 2013, the Director of National Intelligence (“DNI”) released a heavily redacted opinion and order in which Judge Colleen Kollar-Kotelly held that the electronic communications metadata program, which the NSA began in 2004 and allegedly discontinued in 2011, was authorized under FISA and comported with the First and Fourth Amendments. Although the docket number and date were redacted from the version the DNI released, documents that the DNI and Department of Justice (“DOJ”) subsequently released on January 1, 2014 in regard to Sprint’s questioning of the telephony metadata program in 2009-2010 show that Judge Kollar-Kotelly’s opinion and order authorizing the electronic communications metadata program was issued in docket number PR/IT 04-88 on July 14, 2004.
The purported authority for the electronic communications metadata program was the pen/trap provision of FISA, 50 U.S.C. Sec. 1842, rather than, as for the telephony metadata program, the business records provision of FISA, 50 U.S.C. Sec. 1861. Analogously to the telephony metadata program, however, the principal statutory issue is how the bulk collection of metadata on Americans’ emails and “certain other forms of communications,” without any need to suspect that particular communications or their recipients or senders have any connection to terrorism, can possibly satisfy Sec. 1842’s requirement that the “information likely to be obtained … is relevant to an ongoing investigation against international terrorism.” In holding that the relevance requirement was satisfied “even though only a very small percentage of the information obtained will be from [redacted] and therefore directly relevant,” Judge Kollar-Kotelly deferred to “senior responsible officials, whose judgment on these matters is entitled to deference, [who have] articulated why they believe that bulk collection and archiving of metadata are necessary to identify and monitor [redacted] operatives whose Internet communications would otherwise go undetected in the huge streams of [redacted].” More surprisingly, she also based her determination that the statutory relevance requirement was satisfied on cases on the “special needs” exception to the Fourth Amendment’s warrant requirement. “In summary, the bulk collection proposed in this case is analogous to the suspicionless searches or seizures that have been upheld under the Fourth Amendment in that the Government’s need is compelling and immediate, the threat to individual privacy interests is limited, and bulk collection appears to be a reasonably effective means of detecting and monitoring [redacted] related operatives and thereby obtaining information likely to be [redacted] to ongoing FBI investigations.”
Although the “special needs” case law delineates an exception to the warrant requirement in cases where the requirements of the Fourth Amendment apply, confusingly, Judge Kollar-Kotelly invoked the United States Supreme Court’s opinion in Smith v. Maryland, 442 U.S. 735 (1979), to hold that the electronic communications metadata program did not constitute a Fourth Amendment search. “Users of email [redacted] voluntarily expose addressing information for communications they send and receive to communications service providers. Having done so, they lack any legitimate expectation of privacy in such information for Fourth Amendment purposes.” The judge went on to reason that the Constitutional analysis was not changed by the “unusually broad collection and distinctive modes of analyzing information” in the electronic communications metadata program. Here, she asserted that “the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy. Whether a large number of persons are otherwise affected by the government’s conduct is irrelevant.” Invoking case law restricting the application of the exclusionary rule, she concluded that because “the subsequent use of the results of a search cannot itself involve an additional or continuing Fourth Amendment violation,” the querying of metadata could not call the Fourth Amendment into play. (Smith v. Maryland is discussed in Adina Schwartz, “The NSA’s Surveillance of Metadata.”)
By contrast to her dismissal of Fourth Amendment concerns, Judge Kollar-Kotelly recognized that “the extremely broad nature of this collection carries with it a heightened risk that collected information could be subject to various forms of misuse, potentially involving abridgement of First Amendment rights of innocent persons.” To obviate this concern, the judge required that a US person’s telephone number not be used as a “seed” solely on the basis of activities protected by the First Amendment and that the NSA’s General Counsel review any use of US persons’ numbers as “seeds.”