USG Files Opening Brief in Klayman Appeal

By Jane Chong
Tuesday, July 15, 2014, 10:00 AM

Yesterday the government filed its opening brief in Klayman v. Obama, in a bid to overturn D.C. District Court Judge Richard J. Leon's December 16 ruling requiring the government to cease collecting, and to destroy, any Section 215 metadata associated with plaintiffs Larry Klayman and Charles Strange.

By way of background: last year, the district court consolidated two putative, kitchen-sink-style class actions filed in the wake of the Snowden revelations to challenge the lawfulness of the government's bulk telephony metadata program. Judge Leon granted a preliminary injunction to two (of five total) plaintiffs, finding it "significantly likely" that the government's use of "almost-Orwellian technology" to collect and store telephony metadata of individuals that it does not suspect of wrongdoing constitutes an unreasonable search in violation of the Fourth Amendment. In so ruling, Judge Leon notably rejected the Obama administration's key characterization of its metadata collection program as a technological descendant of the pen register lawfully and warrantlessly used to collect phone numbers dialed by a suspect in the 1979 case of Smith v. Maryland.
As for yesterday's filing: about half of the government brief is devoted to detailing the authorities granted and bulk telephony-metadata program conducted under Section 215, and to overviewing the proceedings below. It's worth noting that, here and elsewhere, the government's account emphasizes the mechanized, minimized, and therefore non-injurious nature of the metadata collection and query process. For example, the government insists that, with respect to general database querying, this is "metadata that no person reviews" and that "never come to any human being's attention."
The government brief makes all of the usual arguments for why the district court erred in granting the preliminary injunction, contending that the plaintiffs have not demonstrated standing, that the plaintiffs are not likely to succeed on their Fourth Amendment claim, and that the district court abused its discretion in balancing the equities and assessing the public interest.
Also as expected, the meat of the government's argument lies in its repudiation of the Judge Leon's Fourth Amendment analysis. That is, the government argues that (1) obtaining bulk telephony metadata from telecommunications companies under Section 215 does not constitute a Fourth Amendment search because Smith v. Maryland does indeed control, and (2) even if the collection were a search, it would nonetheless be reasonable under the special needs doctrine and therefore constitutional.
The government summarizes its Fourth Amendment arguments thusly:
Every other judge who has decided the question has correctly concluded that the district court’s holding conflicts with the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which held that individuals lack a Fourth Amendment privacy interest in telephone call record information provided by callers to their telecommunications companies. In concluding otherwise, the district court below relied on the novel logic that changes in technology and differences between the scope of the Section 215 program and that of the pen register arrangement in Smith vitiate its holding. That reasoning is a non sequitur, because those changes do not diminish the force of Smith’s basic rationale—that telecommunications subscribers relinquish any cognizable privacy interest in information that they voluntarily convey to their telecommunications companies, which is then aggregated and maintained in the business records of those companies. That doctrine is binding law and serves important functions. The notion that plaintiffs’ Fourth Amendment privacy interests have been infringed by the Section 215 program is especially implausible, given that it is entirely speculative whether any government analyst has ever reviewed, or ever would review, metadata about plaintiffs’ calls.
Even if plaintiffs possessed a cognizable privacy interest in business records consisting of telephony metadata—and they do not— producing those records to the government under Section 215 is reasonable and permissible under the Fourth Amendment’s special needs doctrine. The Section 215 telephony-metadata program serves the paramount government interest in preventing and disrupting terrorist attacks on the United States, a compelling special governmental need. And because of the significant safeguards in the program—including a requirement of court authorization based on reasonable suspicion before a human analyst accesses the data—the impact, if any, on legitimate privacy concerns is minimal.

Oral argument has not yet been scheduled. For a thorough refresher on Judge Leon's opinion, check out Raffaela's summary here.