By Naazaneen Hodjat
The courts are redefining the hot topic of privacy law in today’s digital age. The most recent ruling, American Civil Liberties Union v. Clapper, came in the wake of a series of disclosures by Edward Snowden, a former National Security Agency (NSA) contractor. The Guardian revealed that the NSA had asked the Foreign Intelligence Surveillance Court to order Verizon to produce the telephone metadata for many of its subscribers. This order covered three months of information and included the numbers of both parties on a call, along with the location, time, and duration of the call. The Patriot Act classifies the contents as metadata, and the NSA can obtain the metadata without a warrant. The NSA network secured the telephone metadata indefinitely for its investigations.
The NSA Bulk Metadata Collection Program began shortly after the September 11th terrorist attacks. Section 215 of the Patriot Act permits the government “to make an application for an order requiring the production of any tangible things…for an investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism….” The ACLU sought a preliminary injunction against the Government claiming that the bulk metadata collection program violates consumers’ First and Fourth Amendment rights. In response, the Government argued that bulk collection qualifies as business records and therefore falls within the ambit of Section 215 of the Patriot Act.
The United States District Court for the Southern District of New York initially heard this case and ruled that consumers do not have a reasonable expectation of privacy in their telephone metadata to invoke the Fourth Amendment. The court relied on Smith v. Maryland, which held that individuals have no expectation of privacy for information that they provide to third parties. The court ruled that subscribers who voluntarily provide this information to third party companies, such as Verizon, do not have a reasonable expectation of privacy.
On appeal, the Second Circuit held that “[t]he telephone metadata program exceeds the scope of what Congress has authorized and therefore violates Section 215 of the Patriot Act.” Section 215 requires that the records be relevant to an authorized investigation. The court stated that the government must provide a statement of facts demonstrating reasonable grounds to believe “that the tangible things are relevant to an authorized investigation.” The Government argued that the bulk metadata collection of records is relevant to the overall counter-terrorism effort. However, the court rejected the Government’s argument. “The telephone metadata program requires that the phone companies turn over records on an ‘ongoing daily basis’ with no foreseeable end point, no requirement of relevance to any particular set of facts, and no limitations as to subject matter or individuals covered.” The court held that this type of surveillance far exceeds the statutory scope provided by Congress.
Section 215 of the Patriot Act expires on June 1, 2015. Congress is considering several bills to revise Section 215. It is unclear whether the Government will appeal the Second Circuit’s decision or wait for Congress to act. Although this issue is also making its way through several other courts, the Second Circuit is the first to rule on the legality of the NSA’s surveillance program. Advocates of the program argue that Section 215 is crucial to homeland security. Consumer advocates, on the other hand, argue that Congress should let the provisions expire. The Obama Administration suggests an alternative solution; carriers would hold the data until the Government requests it and has enough evidence to demonstrate a relevant lead on an investigation.
Ultimately, the issue is whether technological advances will obliterate consumers’ expectation to privacy. The Second Circuit did not resolve the potential constitutional issues, but rather advised courts to defer to Congress. “In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.” There are compelling interests on each side; Congress will need to balance the interests of homeland security and the preservation of citizens’ right to privacy. It will be interesting to watch Congress deliberate over this issue in the next few weeks. The implications of its decision will have a profound impact on the development of privacy law.
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Washington Journal of Law, Technology & Arts 