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.
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.