ACLU v. Clapper

ACLU v. Clapper
Court	United States District Court for the Southern District of New York
Decided	December 28, 2013
Case history
Prior action(s)	Filed, June 11, 2013
Court membership
Judge(s) sitting	William Pauley

National Security Agency surveillance
Map of global NSA data collection
Programs Pre-1978 ECHELON MINARET SHAMROCK PROMIS Since 1978 Upstream collection BLARNEY FAIRVIEW Main Core ThinThread Since 2001 OAKSTAR STORMBREW Trailblazer Project Turbulence President's Surveillance Program Terrorist Surveillance Program Since 2007 PRISM Dropmire Stateroom Bullrun MYSTIC MonsterMind (alleged) Databases, tools etc. PINWALE MARINA MAINWAY TRAFFICTHIEF DISHFIRE XKeyscore ICREACH BOUNDLESSINFORMANT GCHQ collaboration MUSCULAR Tempora Mastering the Internet Global Telecoms Exploitation
Legislation FISA Protect America Act of 2007 FISA Amendments Act of 2008 Patriot Act
Institutions FISC Senate Intelligence Committee
Lawsuits ACLU v. NSA Hepting v. AT&T Jewel v. NSA Clapper v. Amnesty Klayman v. Obama ACLU v. Clapper Wikimedia v. NSA
Whistleblowers William Binney Thomas Drake Mark Klein Edward Snowden Thomas Tamm Russ Tice
Publication 2005 warrantless surveillance scandal 2013 mass surveillance scandal
Related Cablegate Surveillance of reporters Mail tracking UN diplomatic spying Insider Threat Program Mass surveillance in the United States Mass surveillance in the United Kingdom
Concepts SIGINT Metadata
Collaboration United States CSS CYBERCOM DOJ FBI CIA DHS IAO Five Eyes CSEC GCHQ ASD GCSB Other DGSE BND

American Civil Liberties Union v. James Clapper, No. 13-3994 (S.D. New York December 28, 2013),^[1] was a lawsuit by the civil liberties promoting nonprofit organization the American Civil Liberties Union (ACLU) and its affiliate, the New York Civil Liberties Union, against the United States federal government that challenged the legality of the National Security Agency (NSA)'s bulk phone metadata collection program. On December 27, 2013, the court dismissed the case, finding that metadata collection did not violate the Fourth Amendment. On January 2, 2014, the ACLU appealed the ruling to the United States Court of Appeals for the Second Circuit. On May 7, 2015, the appeals court ruled that Section 215 of the Patriot Act did not authorize the bulk collection of metadata, which judge Gerard E. Lynch called a "staggering" amount of information.^[2]

Background

The lawsuit came in the wake of disclosures by Edward Snowden of a system of global surveillance by the NSA and international partners.^[3][4] The Guardian revealed that the Foreign Intelligence Surveillance Court, at the request of the National Security Agency, had ordered Verizon to hand over the communication records of many of its subscribers from a three-month period. The numbers of both parties on a call were handed over, as was call location, time and duration. (The contents of the conversation itself were not covered in the order.) Because the data is classified as "metadata" it does not require a warrant to obtain under the Patriot Act.^[5]

Claims

Director of National Intelligence James R. Clapper

The American Civil Liberties Union and the New York Civil Liberties Union sued Director of National Intelligence James R. Clapper, NSA Director Keith B. Alexander, Secretary of Defense Chuck Hagel, Attorney General Eric H. Holder, and FBI director Robert S. Mueller III for declaratory and injunctive relief from alleged constitutional rights by the NSA's bulk phone call metadata collection program. They claimed that the bulk metadata collection program violates their First and the Fourth Amendment rights.^[6] In specific, they argued that, as Verizon subscribers, the NSA's collection of their call metadata constituted an invasion of privacy and unreasonable search and seizure under the Fourth Amendment and that collecting the data could inhibit their and their partners' free speech guaranteed by the First Amendment. In defense, the NSA claims that bulk collection of phone call metadata is legal under Section 215 of the Patriot Act, which allows them to collect business records.^[7]

District Court opinion

On December 28, 2013, Judge William Pauley dismissed the case.

The court ruled that phone users had no reasonable expectation of privacy that would give them Fourth Amendment rights. Citing the 1979 Smith v. Maryland decision as precedent, the court found that, under the Fourth Amendment, individuals have no expectation of privacy for information they provide to third parties, like phone companies.^[8][9][10] Because all the data collected by the NSA is voluntarily revealed to the phone companies by users, they cannot expect it to remain private. They find no reason Smith v. Maryland (1979), which found that similar phone metadata was outside the expectation of privacy, would not apply to the NSA's program.^[11]

The court also found that the NSA's internal procedures prevent using the phone call metadata to violate the Fourth Amendment. The querying process requires approved "seeds" that pass the Reasonable Articulable Suspicion (RAS) test and only results within three-hops of these seeds are returned to the analysts. According to General Alexander Keith, the NSA does not do any pattern analysis or automated data mining to extract additional information from the metadata.^[12] The court rejected ACLU's argument that the three-hop analysis can be performed without the need of government first building up a database of each and every phone call record^[13] declaring that "Supreme Court repeatedly refused to declare that only the least intrusive search practicable is reasonable under Fourth Amendment."

The court was cognizant of the surveillance program's benefits and argued that the program had successfully stopped terrorist attacks, citing several examples provided by the government in the US House committee hearing on Intelligence (held on June 18, 2013).^[14][12][15] In particular, the ruling referred to the program's success at identifying Najibullah Zazi in connection with the New York City Subway bombing plot, Khalid Ouazzani in connection with New York Stock Exchange bombing plot and David Headley in connection with Mumbai bombings and Danish newspaper bombing plot.

Pauley concluded that even though the privacy concerns were not "trivial", the potential benefits of surveillance outweighed these considerations.

Impact

Some argue this case has created public confusion by conflicting with Klayman v. Obama, a district court opinion which found the NSA surveillance was "Orwellian" and "likely unconstitutional."^[16]

Case developments

On January 2, 2014 ACLU appealed the dismissal in the Second Circuit Court of Appeals. They argue "The government has a legitimate interest in tracking the associations of suspected terrorists, but tracking those associations does not require the government to subject every citizen to permanent surveillance. Further, as the president's own review panel recently observed, there's no evidence that this dragnet program was essential to preventing any terrorist attack. We categorically reject the notion that the threat of terrorism requires citizens of democratic countries to surrender the freedoms that make democracies worth defending."^[17] The Second Circuit heard oral arguments in the case on September 2, 2014.^[18]

Appeals Court Opinion

On May 7, 2015, a three-judge panel for the Second Circuit held that "the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates [Section 215 of the Patriot Act]. Accordingly, we VACATE the district court’s judgment dismissing the complaint and REMAND the case to the district court for further proceedings consistent with this opinion."^[19]

See also

• Litigation over global surveillance
• Klayman v. Obama

References

External links

• Ruling in ACLU v. Clapper
• ACLU page on ACLU v. Clapper
• Legal documents of ACLU v. Clapper
• Initial complaint