A three-judge panel of the D.C. Circuit yesterday considered a key challenge to the NSA’s bulk collection from telephone companies of subscribers’ call detail records, pursuant to Section 215 of the USA PATRIOT ACT. Earlier, U.S. District Judge Richard Leon concluded that the surveillance likely violated the Fourth Amendment, but stayed his entry of a preliminary injunction, pending appeal by the government. Plaintiffs followed with a cross-appeal of their own. While defending Judge Leon’s finding of likely unconstitutionality, plaintiffs also attacked Leon’s refusal to take up their claims under the First and Fifth Amendments.
Before turning to our little read-out, one comment about the morning’s debate before Judge Janice Rogers Brown and Senior Judges Stephen Williams and David Sentelle: Larry Klayman’s gassy style was...distracting. I can't imagine the call records program's opponents really loved the performance.
As legal types well know, he is not merely the case’s name plaintiff and lawyer. Larry Klayman also is the founder of two advocacy organizations devoted to watching--earlier, watching the judiciary, and these days, watching freedom. (The latter website *totally* has theme music, which is, appropriately enough, Elton John's "Philadelphia Freedom.") In the nineties, the self-described public interest attorney took on a kind of weird celebrity, owing to his barrage of nutty lawsuits against the Clinton Administration and related rabble-rousing. Thereafter, Klayman (among other things) decamped from Judicial Watch, ran unsuccessfully for the Senate, and started up Freedom Watch. Then came Snowden’s revelations about NSA surveillance, Klayman’s suit for injunctive relief against the President and other officials--and, ultimately, Judge Leon’s Fourth Amendment ruling.
The Nancy Grace-like lawyer’s special kind of bluster was on display from the get-go. Eyebrows were raised in the galley when Klayman told the court that the Founding Fathers would have been arrested and executed if King George had been fortunate enough to possess bulk surveillance capabilities like those challenged by Klayman’s lawsuit. Ditto when Klayman decried Section 215 as the greatest assault on freedom in the history of the country. All this was harmless and goofy, if not especially effective. Still, the lawyer also visibly irritated the court by ducking clear answers to a series of rather straightforward questions regarding the record--a tactic that misfired when Judge Sentelle then forced Klayman, on the spot and over the course of a cringe-inducing pause, to dig up his needed citation.
Despite the "Klayman Factor," the day’s questioning was even-handed and vigorous, and exposed weaknesses in arguments advanced by both the government and plaintiffs alike. Moreover, and rather unusually, the proceedings also featured oral arguments by lawyers for two amici--both of whom dealt directly and soberly with the judges’ queries and somewhat compensated for Klayman’s Klayman-ness.
Without further ado:
Argument by the Appellant
At bottom it's the government’s appeal, so the United States lawyer Thomas Byron opens. He starts by claiming that Klayman and crew are customers of Verizon Wireless and not of Verizon Business Services; only the latter was the subject of the Foreign Intelligence Surveillance Court’s order requiring production of call detail records. There is, moreover, no evidence that the plaintiffs’ records have been collected and analyzed, despite their insistence to the contrary; the plaintiffs’ central claim is thus speculative and cannot satisfy legal standing doctrines. No standing, no lawsuit.
Senior Judge Stephen Williams asks whether the call records program’s sweep is, Byron’s claims notwithstanding, “universal;” the attorney rejoins that, as explained in the government’s brief and by the FISC itself, the United States does not collect all or nearly all call records in the country, despite what you might have heard. At any rate, the burden is on the plaintiffs, under the Amnesty v. Clapper ruling, to demonstrate standing---and they haven’t done that, according to Byron. All the more so, considering their allegation that the government not merely collects metadata associated with their telephone calls, but also uses it in a nefarious fashion--to build dossiers on plaintiffs and the like.
So is it the collection of call data that triggers the protected legal interest, or the use? Senior Judge David Sentelle asks, and Byron acknowledges that the plaintiffs claim both. But the lawyer also stresses that there’s no legally protected interest in business records produced voluntarily to telephone companies, something clearly mandated by the Supreme Court’s decision in Smith v. Maryland--which ought to control this case. Sentelle pushes back a bit: Smith, he says, was about dialed numbers. Aren’t the data in this case broader and more revealing in nature? Yes on the first, no on the second, answers the lawyer--though he insists that any differences in the disputed data here are not “material.” (Laughter follows when the panel’s lone North Carolinian says he and his colleagues will tell Byron what counts as “material” or not.) When asked, Byron says that the United States does not collect cell-site location data, though he accepts the call records program does sweep up so-called “trunk identifiers,” which, in Byron’s view, are less revealing than cell site data with respect to location.
The lawyer pounds more on some expected government themes--no collection of content, the straightforward application of Smith, and so on--when Judge Williams inquires about the government’s preservation of collected records. The latter holds metadata for five years, thus suggesting the sort of sustained surveillance held unlawful by the court of appeals in Maynard and the Supreme Court in Jones. But Byron makes a distinction: here, one rightly expects to have one’s telephone records pored over after the placing and receiving of phone calls. In contrast, the unlawfully surveilled folk in Maynard and Jones did not expect all of their movements to be intrusively scrutinized by law enforcement officials. The latter didn’t involve third party business records, or the assumption of risk, either.
There’s only a little more back and forth before Byron reserves the balance of his argument time. The panel’s presiding judge, Judge Janice Rogers Brown, observes that the current third party rule furnishes a nice “bright line” for courts and police to apply. Still, she asks about protections for sensitive data given to others--hospitals and the like. The attorney is glad Brown asked; he tells her that Congress has imposed many statutory protections on third party data for things like health data, wiretaps, and bank records. The FISC-sanctioned program here is similar, he says: the secret court has imposed a number of back-end safeguards, including reasonable suspicion requirements and minimization. Those would suffice to uphold the call records program even if the court were to conclude (as the district court did) that bulk collection from telephone companies amounts to a “search” for Fourth Amendment purposes--even though, under Smith, it doesn’t. The call records program, Byron argues says, is “tailored.”
Argument by the Appellee
The baton passes to Larry Klayman. “This case,” he intones, is of “monumental importance.”
He doesn’t get too far before Judge Williams asks about his broader legal theory: so it’s the querying of the metadata that counts as a search here? Yes is Klayman’s answer, though he emphasizes that collection alone suffices. Querying the database, explains the silver-haired attorney, merely aggravates the legal problem. And it’s a whopper of an aggravation, in Klayman’s view, given the wide variety of metadata collected and the many sensitive inferences that analysts can glean through examination of the collected stuff.
Such emphasis on downstream analysis seems to puzzle Williams. A requirement of standing is imminent legal injury; doesn’t Klayman’s complaint about what metadata can tell analysts--after they have run queries and formed privacy-killing conclusions--essentially eliminate imminence? Klayman thinks not, and tells the court that the United States only moments ago admitted to doing the very things that Klayman has alleged. (Judge Williams asks precisely what Klayman thinks Byron admitted; Judge Sentelle quips that Byron’s was, perhaps, a “tacit” admission.)
More pressing from Williams follows. Eventually Klayman cites the NSA Inspector General’s report, which found that analysts had violated rules for examining metadata 2,000 times; internal reporting also faulted some analysts for peeking at records pertaining to former romantic partners. Accordingly the claim that the United States doesn’t promiscuously analyze call records data is “absolutely false,” according to Klayman. The government simply “lies under oath.” As if on cue, the attorney delves into some nefarious-seeming details behind one of his clients’ cases: he represents the parents of a former military officer killed in Afghanistan who happened also to be an NSA cryptologist. Klayman tells the panel that he doesn’t trust the United States’ explanation for his clients’ death. But his freedom of action, his clients’ confidences, are at risk, thanks to the NSA’s intrusions into communications shielded by the attorney-client privilege. But this only returns Williams to his point: isn’t your case really about stuff that happens after collection and analysis, rather than at the moment of collection? The jurist thinks Klayman is “telescoping” the standing analysis, and “obscuring” matters along the way.
Over to Sentelle, who asks about the differences, if any, between the pen register data collected (lawfully) in Smith and the call metadata collected from telephone companies in this case. Klayman says the latter is much broader and more revealing. Ok, then how? The attorney answers by referring to a “confluence of factors” that shows, among other things, an individual’s location. Sentelle is confused, and seemingly irritated: didn’t Byron say the United States doesn’t collect cell site data? A stubborn Klayman insists to the contrary, prompting Sentelle to ask what in the record establishes that, in fact, the United States is grabbing up geolocation data by dint of the Section 215 program. Sentelle and Williams then take turns prompting the evasive lawyer to cough up the evidence in question. Now Klayman refers to the “unrebutted” testimony of expert witness Edward Felton--to the effect that some locational information is produced by telecommunications companies. Still no dice. An visibly annoyed Sentelle therefore instructs Klayman to find the record cite, in Edward’s affidavit, that shows the United States’ collection of location information.
An awkward pause follows. Court, counsel and members of the public wait in anguished silence while Klayman fiddles through some papers.
At long last, Klayman cites paragraph 18 of the Felten document, which says that trunk identifiers--a kind of data collected from phone companies under the call records program--can reveal some location information. A-ha! The lawyer says that a call from Hawaii to the mainland, for example, can demonstrate that the caller is, in fact, residing in Hawaii. All this thanks to trunk identifiers, which the NSA indisputably collects pursuant to the Section 215 program.
Williams makes one last pass at standing. What’s the evidence that records pertaining to Klayman, or other plaintiffs, have been not merely produced to the government pursuant to orders issued by the FISC, but also examined in the way Klayman fears? Klayman’s own affidavit demonstrates this, Klayman says, ditto an affidavit from another plaintiff--who says his computers have been “monitored.” The latter had pictures taken of him, by his computer, even though the computer doesn’t have a camera; that same person, the parents of a soldier killed in Afghanistan, has received strange telephone calls from Afghanistan, too. The attorney adds that the government has had every opportunity to deny that it sucks up and analyzes plaintiffs’ call data, but steadfastly has declined to do that. It’s a “heads I win, tails you lose” situation, Klayman booms, “the American people be damned.”
Before departing the podium, Klayman says the government has acted “arrogantly” and insisted that it is “above the law.” An added flourish: he also says that if King George had NSA’s awesome powers, the Founding Fathers would have never made it to Philadelphia, but instead would have been rounded up and executed along the way. For good measure, Klayman told the judges that the call records program comprises the “most outrageous abuse of freedom in history.”
Argument by Amici Supporting Appellant
The Klayman Show comes to a welcome close, and the court permits two, ten-minute arguments by attorneys for advocacy organizations that filed amicus briefs supporting Klayman.
The first is Cindy Cohn, who represents (among others) the Electronic Frontier Foundation and certain branches of the American Civil Liberties Union. She is ringingly clear, telling the three judges that Klayman is not resolved by Smith at all; indeed, the government’s whole strategy is to stretch Smith aggressively, so as to fit Klayman’s extraordinary facts. These involve, after all, mass collection of data regarding millions of telephone calls--data then stored by the United States for periods of five years. It’s not the stuff of dialed digits, as in Smith. It’s pushing well into the unlawful territory carved out by the Supreme Court in Jones and Riley and this court in Maynard.
That last bit interests Judge Williams, who picks up on the “why is the data different than the data in Smith” theme. The key for Cohn is not merely the quality of the data--this is hardly a pen register case, as Smith was--but also the scale of a bulk surveillance program. The principle has to do with the magnitude for the most part, as Cohn tells Judge Sentelle--though she, like Klayman, observes that some data in play here can reveal information about a person’s locale, too. The point: it’s thus not just different data. It’s also about gargantuan swathes of data being sucked up, analyzed, and stored away for years.
The lawyer also takes on the constitutional law next. The Supreme Court’s Fourth Amendment cases--Knotts, Smith, Jones, Riley--have never held that “if its metadata, we’re done.” Instead, argues Cohn, the touchstone has been the reasonable expectation of privacy. Application of that standard is flexible and fact-bound. Judge Janice Rogers Brown expresses concern about this idea’s conceptual implications. Smith and the third-party cases imposed a nice “bright line” she says, but now Cohn desires to vest some third party-held material with constitutional privacy protection. Well, that’s going to be tough practically and Cohn recognizes the issue’s difficulty--but insists that the really hard stuff isn’t implicated by government collection and retention of all Americans’ telephone calls. More skepticism from Brown: then what happens, say, to the property interests of the telecommunications companies producing business records of the calls? How would those be affected by the court’s distinguishing of Smith? Cohn pushes back hard, insisting that ownership is not and has never been the key to privacy; the guy in Katz didn’t own the phone booth, after all. And when Brown again airs her anxieties--about third party information given to informants, for example--Cohn quickly distinguishes Brown’s hypotheticals and once more returns the scope. This is about suspicionless, mass surveillance.
That same principle helps Cohn to bat back some questions from Judge Williams about the application of so-called “special needs” cases, which allow suspicionless searches without warrants. Of course it is true that cops can set up drunk-driving checkpoints and that schools can search kids. But those cases, unlike this one, involve some categorical limit: police would never attempt, and courts would never sustain, a nationwide breathalyzer campaign to catch intoxicated drivers everywhere, all the time. The lawyer likewise dismisses Williams’ suggestion that limited querying and minimization mitigates any putative legal problem here. Riley certainly dismissed the protective value of “government protocols,” she says. And after all, if the King came to our houses, collected all our papers but didn’t look at them, would we really say there’s no search until the King reads them? The question hangs as Cohn finishes and returns to counsel table.
Another lawyer, Paul Smith, then rises on behalf of the Center for National Security Studies. His mission is to advance an argument that Klayman initially advanced, lost before the district court, and then formally withdrew: that Section 215 does not authorize the call records program.
Smith has barely asked the judges to affirm on statutory grounds when Judge Williams asks about Klayman’s amendment of his complaint and his explicit abandonment of the statutory claim now under discussion. The court nevertheless has discretion to entertain it, explains Smith, citing principles of constitutional avoidance and a Fifth Circuit decision, Underwood, where that court of appeals evidently resolved an issue one or both parties deliberately dropped below.
Perhaps unsurprisingly, Smith briskly moves on to his stronger points on the merits: the government’s well-known straining of Section 215’s “relevance” requirement, the provision's clear command to the FBI, not the NSA, to apply for orders compelling the production of business records and so on. He adds that other provisions of FISA clearly contemplate continuous collection of materials, but also impose a time limit for review. And yet there are no similar mechanisms in Section 215, Smith argues, which is precisely why the FISC had to fashion them out of whole cloth. The lawyer also bats away Judge Williams’ invocation of Section 215’s mention of grand jury subpoena principles; the largest such subpoena ever sustained would still only capture a tiny fraction of the call records in play here. Subpoenas have limiting principles built-in--but this program doesn’t.
Judge David Sentelle strongly dislikes the idea of resolving a deliberately abandoned legal issue. How could the court grant relief under such circumstances? Because of the procedural facts, which Smith ticks off: the argument was plead, decided, and only revised after Judge Leon’s ruling below. The procedural posture moves the judge not at all. He is still concerned about jurisdiction, and his ability to enter an injunction that the plaintiffs do not actually seek. (Sentelle also surmises that Underwood’s facts may be distinguishable, but Smith confesses that he cannot recall those facts offhand.) And he observes that constitutional avoidance, Smith’s rationale for pushing the statutory argument in the first place, doesn’t at all require courts to troll around for abandoned statutory issues. Smith turns this notion on its head, arguing that Congress could not possibly have intended to force courts to take up constitutional issues willy-nilly.
About that intent: Judge Williams observes that the Foreign Intelligence Surveillance Act permits telecommunications companies to challenge Section 215 orders. When asked, Smith acknowledges that one provider has done this, albeit not until after Judge Leon’s order, and only so as to clarify the company’s legal obligations in light of it. Generally the incentives cut against provider appeals though--something that, in Smith’s view, cuts in favor of his statutory arguments. The debate concludes with a note about legislative ratification: Williams observes that members of Congress apparently had an opportunity to read classified material regarding the Section 215 program, in advance of a vote to re-authorize the statute. But Smith sees no clear record that members were, in fact, aware of the longstanding and erroneous construction of the business records provision by the FISC. And in any case, he says, the statutory text isthe best indicator of intent--and the text is altogether incompatible with the bulk collection of telephone metadata.
Rebuttal by the Appellant
Byron rises in rebuttal and makes three broad points.
His first is to stress the differences between the actual program at issue in this case and the program that plaintiffs’ have imagined and now fear so terribly. In his view, only the former should matter. We’re talking about a congressionally-created surveillance tool, approved by Article III judges and with additional safeguards imposed to protect privacy interests. And, Byron explains, the President mentioned such tailoring in his speech on surveillance earlier this year. Judge Sentelle asks about the relevance of the President’s oratory, and Byron says his argument goes to Klayman’s claims of excessive government secrecy. But the judge observes that Byron is arguing outside the record--something he doesn’t usually expect from the Department of Justice.
Government Rebuttal Point Two: this is a Smith case, and no more. Byron says there is no constitutional violation upon collection under the principle announced in that decision, which remains good law. And when Judge Sentelle picks up Cohn’s hypothetical--about the King collecting the peoples’ “papers” but thereafter reading none or only a few--Byron mentions the possessory interest in play. But wait, that’s not quite right: Judge Sentelle tells the lawyer that possession, though an original interest underlying Fourth Amendment protection, is not the only interest implicated. We know this from Katz, from Justice Alito’s concurrence in Jones, and so on. Fine, Byron rejoins, but those cases didn’t involve third party possessory interests, or the reasonable expectation of disclosure. Telecommunications companies have such interests in their business records; moreover, a phone customer expects collection, while the defendant in Jones, for example, did not expect continuous tracking. Sentelle thus asks, and the lawyer confirms: this comes down to Smith and Smith alone.
Almost as an aside, Judge Williams asks about what would happen if Smith doesn’t control. He has in mind some unilateral changes proposed in the wake of Snowden’s disclosures, including the continued residence of metadata on phone companies’ servers for querying as needed by the government. Byron tells Williams that nothing requires the executive branch to employ the least intrusive means of surveillance and stresses the government’s compelling interest in surveillance here: national security. When Judge Brown wonders about whether national security might furnish a freestanding exception to the warrant requirement, Byron stops her. You needn’t go that far, because of the well-settled “special needs” doctrine, which saves the program’s constitutionality even if bulk phone records collection counts as a “search.”
Lastly there’s statutory stuff. This case, Byron says, involves a preliminary injunction entered against a government program. And the only way to deal with that relief, given Klayman’s chucking of his statutory claim, is to vacate the injunction. There’s no support in the record for upholding injunctive relief if the court agrees with amicus about Section 215’s incompatibility with the challenged surveillance. Judge Williams wonders about that, citing the Bank of Oregon case; Byron says he cannot address the point, as he doesn’t recall that decision’s facts. But citation of authority reminds Byron of Catalina Hills, which said (in so many words) that constitutional avoidance doctrine does not require courts to cast about looking for nonconstitutional grounds on which to decide the case. Secondly, the attorney invokes Judge Brown’s concerns about “bright line” rules, like that furnished by the Supreme Court in Smith. Well, Professor Orin Kerr has argued, in a piece on third party doctrines, that exclusionary rules, like those used to enforce the Fourth Amendment against the police, require a “bright line approach.”
Since Klayman said nothing about his cross-appeal, Byron declines to take up that issue and says he’ll instead rest on his brief.
But wait: Klayman does wish to say something about that issue. So he does, ever briefly, urging the panel to resolve the pressing First Amendment issues in play.
In that regard Klayman cites the Supreme Court’s NAACP v. Alabama decision as support. When he does, Judge Williams asks if Klayman feels that he has been “targeted” by the government, as the NAACP was in Alabama. With typical drama, Klayman answers that he would be “surprised” if he hasn’t been. After all, he’s been a public advocate for a long time. Some more follows and then he concludes with a flourish, blasting the government’s demonstrated privacy violations. Finally, he proclaims that the American people shouldn’t be forced to live under the “Sword of Damocles” and government “tyranny.”