January 9, 2014
Yet at the outset of 2013, the NSA’s data collection activities were already subject to judicial scrutiny. What follows is a brief survey of court rulings in 2013 on the validity of those activities.
First off, in February the Supreme Court held, in Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138, 185 L.Ed.2d 264, that the plaintiff attorneys and human rights, labor, legal, and media organizations who communicated with persons they believed to be likely targets of foreign electronic surveillance lacked standing to bring a constitutional challenge to a provision of the 2008 amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA). Justice Alito’s opinion for the 5-4 Court said that the plaintiffs’ claim of future injury, asserting that their communications with non-U.S. persons would be acquired under FISA, was too speculative.
Following the Snowden disclosures, however, a judge on the Foreign Intelligence Surveillance Court (FISC) that oversees the implementation of FISA ordered the government to declassify a FISC decision justifying the NSA’s PRISM program for collecting Internet data. Other decisions from that court have since been declassified and released to the public, at least in part, including one 2011 decision, 2011 WL 10945618, that held that the NSA’s targeting and minimization procedures for acquiring Internet multi-communication transactions (MCTs) were not reasonable under the Fourth Amendment.
December brought conflicting district court decisions on the lawfulness of the NSA’s bulk collection of telephone metadata. Judge Leon of the District Court for the District of Columbia granted a preliminary injunction, 2013 WL 6571596, barring the NSA from collecting the telephony metadata of telecommunications services subscribers. The NSA’s collection of such data intruded on the significant expectation of privacy the subscribers had in the aggregate collection of such data over the previous five years, Judge Leon reasoned. The injunction, however, applied only to two of the plaintiff subscribers, and Judge Leon stayed the injunction pending appeal.
Just 11 days later, Judge Pauley of the District Court for the Southern District of New York held exactly the opposite, 2013 WL 6819708, concluding that FISA authorized the collection of virtually all telephony metadata, and that such collection did not violate the Fourth Amendment. On the question of standing, Judge Pauley distinguished Amnesty Intern., because there was no dispute that the government had collected the telephony metadata of the plaintiffs, who filed suit within a week of the initial Snowden disclosures. Judge Pauley reasoned, however, that the plaintiffs had no reasonable expectation of privacy in the information the program “vacuums up” about virtually every telephone call to, from, or within the United States.