Yesterday two amicus briefs were filed on behalf of the appellees in Klayman v. Obama, the bulk metadata case up on appeal in the D.C. Circuit. The brief challenges the lawfulness of NSA's collection of Americans' telephony metadata on constitutional and statutory grounds, respectively.
(1) Amicus brief of the Electronic Frontier Foundation, American Civil Liberties Union (ACLU), and the ACLU of the Nation's Capital
Amici put forth a familiar two-part argument for why bulk metadata collection violates the Fourth Amendment. First, amici focus on the highly personal and sensitive nature of the information revealed through metadata, noting that even limited quantities of metadata can prove intrusive, that telephony metadata is even more revealing in the aggregate, and that creating a trail is an "unavoidable byproduct of modern life." Second, amici argue that Smith v. Maryland is not controlling and that bulk telephony metadata collection constitutes a Fourth Amendment search.
(2) Amicus brief of the Center for National Security Studies
Arguing that Congress is best situated to strike the appropriate balance between national security and individual privacy, amici contend that the court should avoid a ruling on important constitutional issues in favor of resolving the case on statutory grounds. Section 501 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1861, does not authorize NSA's bulk metadata collection, according to amici, because the section (1) is explicitly directed to the FBI alone, (2) allows only for the collection of tangible things for specific investigations, (3) requires collection be "relevant" to authorized investigations, (4) is limited to tangible things that can be obtained by a court order, such as a grand jury subpoena, and (5) contains no provision to regulate continuous collections, which sets 501 apart from other FISA sections.
Amici also reject the government's invocation of the doctrine of "ratification through reenactment," arguing that Congress did not ratify the FISC's expansive interpretation of Section 501 when it extended the provision's sunset in 2010 and 2011.
Oral argument in the case has been scheduled for November 4, 2014.