Verizon’s challenge

On April 25, 2014, Judge Rosemary Collyer ordered that redacted versions of a petition filed on January 22, 2014 challenging the FISC’s production order of January 3, 2014, the government’s response to the petition on February 12, and her own Opinion and Order of March 20 denying the petition be unsealed and posted on the FISC’s website. The petitioner, whose name was redacted from the documents released by the FISC but revealed by The Washington Post to be Verizon, was one of a number of telecommunications companies that received orders for the production of bulk telephony metadata on January 3. Verizon received a Secondary Order, rather than the Primary Order issued by Judge Hogan on that date, and its petition stated that it was entirely based on Judge Leon’s opinion in Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013), finding that the telephony metadata program very likely violated the Fourth Amendment. Instead of endorsing Judge Leon’s opinion or presenting arguments of its own against the legality of the telephony metadata program, Verizon merely stated that, “It may well be the case that this Court, in issuing the January 3, 2014 production order, has already considered and rejected the analysis contained in the Memorandum Order [by Judge Leon]. [Redacted] not been provided with the Court’s underlying legal analysis, however, nor [redacted] been allowed access to such analyses previously, and the order [redacted] does not refer to any consideration given to Judge Leon’s Memorandum Opinion. In light of Judge Leon’s Opinion, however, it is appropriate for [redacted] inquire directly of the Court into the legal basis for the January 3, 2014 production order ….” At 4. Verizon further stated that it was not requesting a stay of the Order or a hearing in the matter, and would fully comply with the Order unless otherwise directed.

In its five-page response, the government claimed that Judge Thomas Hogan’s Primary Order of January 3, 2014makes clear” that the Judge “carefully considered” FISC Judge Eagan’s and McLaughlin’s opinions and the opinions of Judge Pauley in ACLU v. Clapper and Judge Leon in Klayman v. Obama. At 3. On that basis alone, the government contended that it would be appropriate for the FISC to affirm the January 3 production order. As Judge Collyer noted in her opinion, “The Government apparently did not share the Primary Order” with Verizon before Verizon filed its petition. At 6 n.5.

In her opinion, Judge Collyer explained at length why she found Judge Leon’s attempt to distinguish away Smith v. Maryland unpersuasive” and would therefore neither vacate nor modify the Order served on Verizon. At 9, 28. In particular, she criticized Judge Leon for “focus[ing] largely on what happens (and what could happen) to the telephony metadata after it has been acquired by NSA – e.g., how long the metadata could be retained and how the Government could analyze it using sophisticated technology.” At 14-15. Relying on the third party doctrine, she reasoned that what the government did with an individual’s data was irrelevant to whether he or she had reasonable expectations of privacy and, hence, was entitled to Fourth Amendment protections with regard to that data. “If a person who voluntarily discloses information can have no reasonable expectations concerning limits on how the recipient will use or handle the information, it necessarily follows that he or she can harbor no such expectations with respect to how the Government will use or handle the information after it has been divulged by the recipient.” At 17.

Additionally, Judge Collyer criticized Judge Leon for failing to realize that “the aggregate scope of the collection and the overall size of the NSA’s database are immaterial in assessing whether any person’s reasonable expectation of privacy has been violated such that a search under the Fourth Amendment has occurred.” Advancing an atomistic conception of the Fourth Amendment, she stated that, “To the extent that the quantity of the metadata collected by the NSA is relevant, it is relevant only on a user-by-user basis.” At 20.

In thus criticizing Judge Leon’s opinion, Judge Collyer arguably failed to appreciate the limit that Katz v. United States and Smith v. Maryland jointly place on the third party doctrine: only addressing information, but not the contents of communications transmitted by third parties, is exempted from Fourth Amendment protections. See also, e.g., United States v. Forrester, 512 F.3d 500, 509-10 (9th Cir. 2007) (reading Katz and Smith v. Maryland to imply that reasonable expectations of privacy and, hence, Fourth Amendment protections apply to email content, but not addressing information); Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 904-05 (9th Cir. 2008) (reasoning, on the basis of Katz and Smith v. Maryland, that “it is not reasonable to expect privacy in the information used to ‘address’ a text message, such as the dialing of a phone number to send a message. However, users do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.”), reversed on other grounds, Ontario v. Quon, 130 S.Ct. 2619 (2010). In accord with this limit, Judge Leon’s point is that NSA’s collection and analysis of vast numbers of people’s call detail records over periods of years makes any individual’s call detail records more revealing, than the contents of his or her phone conversations, of intimate details of his or her life. Hence, the scope of the NSA collection, when combined with modern analytical techniques, makes it senseless to exempt telephony metadata from the expectations of privacy and Fourth Amendment protections that apply to contents of calls. See, e.g.,Surveillance: A Threat to Democracy,” The NY Times, June 11, 2013 (“Tracking whom Americans are calling, for how long they speak, and from where, can reveal deeply personal information about an individual. Using such data, the government can discover intimate details about a person’s lifestyle and beliefs — political leanings and associations, medical issues, sexual orientation, habits of religious worship, and even marital infidelities.”); Judgment in Joined Cases C-293/12 & C-594/12 (European Ct. of Justice Apr. 8, 2014) at para. 27 (reasoning, in invalidating the EU Data Retention Directive of 2006, that the retention of EU citizens’ telecommunications metadata for periods of between six and twenty-four months “may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them”).

In addition, Judge Collyer reasoned that the United States Supreme Court’s decision in United States v. Jones, 132 S.Ct. 945 (2012), provides no basis for concluding that the telephony metadata program infringes on reasonable expectations of privacy. Agreeing with Judge Leon, she acknowledged that, “To be sure, [Justices Alito’s and Sotomayor’s concurring] opinions express the view that the precise, pervasive monitoring of a person’s location might trigger Fourth Amendment protection even without any physical intrusion.” Nonetheless, she averred that it was a mistake for Judge Leon to rely on the concurrences to find that the metadata program very likely violated reasonable expectations of privacy because “the majority opinion in Jones is controlling and … that opinion does not even reach the reasonable-expectation-of-privacy issue.” At 26. Arguably, Judge Collyer’s reasoning ignores the fact that the Scalia opinion is the majority opinion only because Justice Sotomayor joined it. Hence, an assessment of Jones’ precedential import needs to take account of both Justice Sotomayor’s position with regard to reasonable expectations of privacy and Justice Scalia’s recognition that Knotts 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.Jones, 132 S.Ct. at 952 n.6. See United States v. Davis, No. 12–12928, 2014 WL 2599917 at *7-8 (11th Cir. June 11, 2014).

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