Within two weeks, two federal judges went opposite ways on the NSA surveillance programs. What happened?

January 3, 2014

NSA SpyEleven days after a federal judge ruled the National Security Agency’s (NSA) bulk collection of telephony metadata unconstitutional, another federal judge ruled the opposite.

The first case, Klayman v. Obama, was decided by Judge Richard J. Leon of the U.S. District Court of the District of Columbia.  The second case, ACLU v. Clapper, was decided by Judge William H. Pauley III of the U.S. District Court of the Southern District of New York.

The two cases dealt with identical or almost identical legal issues and precedent, yet came to the opposite conclusions as to the constitutionality of the NSA’s spying activities.

There are several points of distinction between these two judges that may offer some explanation as to why these two reached opposite conclusions less than two weeks apart from one another.

Judge Leon was appointed by President George W. Bush, and assumed office in February 2002.  His rulings, such as ordering the release of five Guantanamo Bay detainees due to insufficient evidence in 2008 and his February 2012 ruling that the FDA’s placement of graphic images and statements on cigarette packs ran afoul of the First Amendment, indicate that he has somewhat of a libertarian streak.

Judge Pauley was appointed by President Bill Clinton in May of 1998 and assumed office in October of that year.  Pauley has issued over 1,300 rulings since assuming office, and there seems to be little to indicate any strong judicial philosophical leanings.

However, it’s interesting to note that, while Judge Leon opened his opinion with basic procedural history of his case, Judge Pauley’s opinion began with the following statement: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is.”  That paragraph ended with the conclusion that the September 11 attacks succeeded because of the failures of “conventional intelligence gathering.”

Further, Judge Pauley’s opinion references the September 11 attacks on several more occasions.

By contrast, though, Judge Leon references the September 11 attacks in his counter to the government’s argument that it could have potentially prevented the attacks had it been collecting telephony metadata at the time.

Clearly, Judge Pauley is more swayed by purported national security interests than Judge Leon.  But do such personal attitudes translate into different judicial interpretations of the law?

First, the two opinions most significantly diverged on the constitutional question of whether the NSA’s spying program violates the Fourth Amendment’s prohibition against unreasonable searches and seizures by the government.

Within this question, the starkest conflict was over the interpretation and application of two Supreme Court rulings: 1979’s Smith v. Maryland, and 2012’s U.S. v. Jones.

Smith held that a pen register (a device that records all dialed telephone numbers from a particular phone line) is not a search because the individual whose data was collected voluntarily conveyed that information to the telephone company (by dialing the phone), and thus had no reasonable expectation of privacy in that information.  1967’s Katz v. U.S. held that a Fourth Amendment “search” occurs when the government violates a person’s “reasonable expectation of privacy.”

Jones held that the use by law enforcement of a GPS (Global Positioning Satellite) tracking device attached to an individual’s car and used to track that individual’s movements over a 4-week period constituted a Fourth Amendment search (more background on that ruling is available in this post).

In regards to Jones and its relation to Smith, it’s important to note that the Court had previously held that an individual travelling in a car on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.

Judge Pauley applied this body of precedent to the NSA surveillance program issue currently before him by finding that, since Jones didn’t overrule Smith, the latter is still good law, in that an individual has no reasonable expectation of privacy in their telephony metadata.

Pauley also emphasized the aspect of Jones that held (by a five justice plurality) that a physical trespass must be present to constitute a Fourth Amendment search.  Since the NSA didn’t technically physically trespass in conducting its data collection, there was no search.

Justice Leon, by contrast, distinguished Smith from the current case, finding that the amount of personal interaction that individuals have with their phones in 2013 could not have been imagined by the Smith Court in 1979, nor the massive scope of data collected, compiled, and analyzed by the NSA’s Bulk Telephony Metadata Program.

Leon further distinguished Smith by noting that the pen register’s use in Smith was one for “a matter of days,” and that the Court didn’t “expect the government to retain those limited phone records once the case was over.” 

The judge continued:

The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combating [sic] terrorism, which realistically could be forever!

Leon also noted that, unlike in previous cases (including Smith), the phone companies are directly cooperating with the NSA and have been for over seven years.  In addition, the judge observed that the current massive data collection, storage, and analysis capabilities of the NSA, “was at best, in 1979, the stuff of science fiction.”  Thus, Leon concluded, there are far too many distinctions between Smith and the case currently before him to use Smith as binding precedent.

As a result of these two conflicting rulings, the Supreme Court will almost certainly take up the issue.

How will the justices rule?  We’ll give our predictions if and when the Court grants certiorari.

In the meantime, law students have more ammunition to use in their submissions for the Rona Mears Student Writing Competition & Scholarship.