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Klayman v. Obama: D.C. Cir. to Hear NSA Surveillance Case

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By Mark Wilson, Esq. on November 03, 2014 3:36 PM

On Tuesday, the D.C. Circuit Court of Appeals is set to hear oral arguments in Klayman v. Obama, a case that has the potential to alter the Fourth Amendment -- if the court will let it.

Back in December, District Judge Richard Leon granted a preliminary injunction to block the NSA's "metadata" surveillance. Though Leon wasn't ruling on the constitutionality of the program (because likelihood of success on the merits is one element of issuing an injunction), he said the program was very likely unconstitutional.

The Third Party Doctrine

Really at issue is the scope of the so-called third party doctrine, a limitation on Fourth Amendment protection that exempts from a "reasonable expectation of privacy" information willingly surrendered to a third party. The government has continued to claim that its phone surveillance collects only "metadata," not the substance of people's phone conversations. The metadata consists of what number a person called, when that number was called, and how long they talked.

The government has Smith v. Maryland on its side, a case from the 1970s that held constitutional the warrantless use of devices that record the numbers a phone dials. In Smith, the Supreme Court held that because a person must surrender information about a phone number to a phone company in order to complete a call, there's no longer an expectation of privacy in that phone number.

Times, They Are a-Changin'

Leon, however, said that times have changed significantly since the 1970s. Smith also was different in degree, and as Justice Holmes said, dissenting in Adkins v. Children's Hospital, "the distinctions of the law are distinctions of degree." Smith involved a single device that tracked the phone numbers of a single phone for a few days. The NSA's surveillance, however, involves the surveillance of potentially millions of Americans and "the creation and maintenance of a historical database containing [at least] five years' worth of data," according to Klayman's brief.

It's also not clear that people are knowingly giving as much information as they are to phone companies. Jonathan Mayer, a computer scientist at Stanford, conducted a study of metadata privacy and was surprised at many of the results. In particular, Mayer was able to determine whom people were calling, including "Alcoholics Anonymous, gun stores, NARAL Pro-Choice, labor unions, divorce lawyers, sexually transmitted disease clinics, a Canadian import pharmacy, strip clubs, and much more." Recording call information over a period of time, he said, created a pattern that "reveal[ed] more than individual call records" and allowed him to deduce a variety of sensitive information about the participants.

The government, of course, has the easier time of it: Basically, "stare decisis" and "lack of standing." The latter gets them out of court entirely if the D.C. Circuit agrees that the particular plaintiffs in this case can't show that their personal information, specifically, was ever collected or reviewed. It's easy -- and tempting -- for a court to get this contentious issue tossed out on this ground alone.

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