Another secret FISA opinion disclosed, and a question for Stewart Baker

April 28

As Stewart Baker posted below, another secret opinion by a FISA court judge has been published, upholding the constitutionality of the NSA’s bulk data seizure program. The good news is that, apparently for the first time, a telecom company–reportedly Verizon–has challenged the legality of a seizure order, making this apparently the first adversarial proceeding in the FISA court on this program. The difference is highlighted by the FISA judge’s discussion of the standing of the telecom company that would create a case or controversy within the jurisdiction of an Article III court. The previously declassified opinion required no such discussion since the ruling was entirely ex parte.

With no case or controversy before the FISA court it is unclear in what capacity these judges are ruling.  But if Article III courts require parties with standing before them to have jurisdiction, then until now these courts, like other Congressionally-created bodies, while staffed with Article III district court judges, are not acting as Article III courts. Even now, unlike search warrants that are routinely approved ex parte by judges, for the first time in American history, the constitutionality of a whole program is being adjudicated in secret and without benefit of input from others (e.g. amicus briefs) or accountability to the general public.

Tellingly, FISA (and District Court) Judge Rosemary Collyer’s opinion is far more developed and careful than the previous declassified FISA opinion. This is largely due to District Judge Richard Leon’s opinion that the NSA data seizure program is unconstitutional, which provided her with a semblance of adversariness against which to react (which also reinforces why why we have a case and controversy requirement). Perhaps she also benefited from District Court Judge William Pawley’s opinion in a adversarily contested lawsuit that upheld the constitutionality of the program.

As is to be expected, in her opinion, Judge Collyer relies heavily on the Supreme Court case of Smith v. Maryland, in which the Court approved the installation of a “pen register” on the phone line of Michael Lee Smith for a limited time. Here again are the facts of Smith: a robbery victim had described to the police both her attacker and a 1975 Monte Carlo she saw near the scene of the robbery. Afterwards, she began receiving threatening and obscene phone calls from a man who said he was the robber. During one phone call the man asked her to step out onto her front porch, where she saw the 1975 Monte Carlo moving slowly past her home. Later, the police spotted a man who met the victim’s description of her attacker driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. They then asked the phone company to install a pen register at its central offices to record the numbers dialed from the telephone at his home. Although the police did not obtain a warrant, they certainly had a reasonable suspicion, to say the least, that Mr. Smith had engaged in illegal activity.

There is much that can be said about Judge Collyer’s analysis but I will confine myself to a single point.  What Justice Collyer has upheld is a program of installing a pen register on every American citizen (with a cell phone) for the rest of their lives. What the order in Smith had that the order to Verizon lacks is particularity. The paradigm of what the Fourth Amendment prohibited as “unreasonable” in its first sentence was the use of general warrants, which is why its second sentence requires that warrants must be particular. And, as USD law professor Donald Dripps has shown, the seizure of papers for later search for evidence of criminal conduct was the epitome of an unreasonable search and seizure that was closely akin to general warrants.

In short, she and others like Stewart have failed to come to grips with the following distinction between what was upheld in Smith and the unprecedented NSA bulk data seizure program: a particular seizure vs. a general or undiscriminating one. The unprecedented nature of this program makes it imperative for judges to think carefully before blindly applying some of the language of Smith to this new situation. It is not “deviating” (Judge Collyer’s word) from a Supreme Court precedent for a lower court judge to ask whether it should be extended to a new situation. Lower court judges are not obligated to take Supreme Court decisions beyond where they have previously gone if there is good reason not to. The Supreme Court needs lower court judges (in adversary proceedings) to thrash this out among themselves before stepping in to authoritatively decide the question.

Judge Collyer’s reasoning depends on a crucial step: to shift the focus away from the police practice that was upheld in Smith to a sole focus on the type of information that was obtained: information disclosed to third parties. She denies that the scope of the program is even “relevant” to its constitutionality: “[T]he aggregate scope of the collection and overall size of NSA’s database are immaterial in assessing whether any person’s reasonable expectation of privacy has been violated such that a search under the Fourth Amendment has occurred. To the extent that the quantity of the metadata collected by the NSA is relevant, it is relevant only on a user-by-user basis…. For purposes of determining whether a search under the Fourteenth Amendment has occurred, it is irrelevant that others’ information is also being collected and that the aggregate amount acquired is very large.”

This framing of the issue, however, overlooks the very feature of the program that makes it the modern-day equivalent of a general warrant: its sweeping and nondiscriminating nature, which was simply not at issue in Smith. That this passage is followed by a “cf” citation suggests it is hardly compelled by binding authority.  (The same generality-particularity issue applies as well to the bank records case of U.S. v. Miller on which the judge also relies.)

Judge Collyer repeats another refrain we hear from defenders of the NSA program such as Stewart: “it must be emphasized that the non-content telephony metadata at issue here is particularly limited in nature and subject to strict protections that do not apply to run-of-the-mill productions of similar information in criminal cases.” But, as with defenses of the individual insurance mandate that “health care is different,” the rationale by which this “limited” program is being upheld has no limit, and any particular limits in the NSA’s program are constitutionally irrelevant until either a constitutional line is identified or the claim that there are really no enforceable limits to data seizures is justified.

As Judge Pawley tellingly observed in his opinion upholding the program, “an individual has no constitutionally protected expectation of privacy” in bank records, records given to an accountant, subscriber information provided to an internet service provider, and information from a home computer that is transmitted over the Internet or by email.  Likewise Judge Collyer tells us that “bank records are likely to provide the Government directly with detailed information about a customer’s personal life — e.g., the names of the persons with whom the customer has had financial dealings, the sources of his income, the amounts of money he has spent on what form of goods and services, the charities and political organizations that he supports — that call detail records simply do not, by themselves, provide.” Yet under her theory, it is just as constitutional for the NSA to demand all our credit card records as it is to demand all our telephone metadata. So too is it constitutional to collect all our medical records held by third parties.

Like defenders of the individual insurance mandate, Judge Collyer and other defenders of the NSA program have identified no judicially-administrable constitutional limiting principle on the acquisition of personal information on every American that is held (pursuant to privacy agreements) by third parties.  None whatsoever. On their logic, every bit of personal information of American citizens that can be “data mined” for suspicious patterns of behavior, or possessed merely for ease of later perusal, may be seized and held on government super computers.

Since I cannot ask Judge Collyer a question, I will direct my question to Stewart, who has chosen once again to snarkily disparage Judge Leon’s opinion: on your constitutional theory, what personal information on all Americans in the possession of third parties like credit card companies, accountants, physicians, and hospitals cannot be seized by the same sort of order now compelling Verizon to turn over all of its subscribers’ call record data? In short, what is your limiting principle?

Without a judicially-administrable limiting principle, the Supreme Court will have no choice but to treat the NSA’s bulk data seizure program the same way it treated the individual insurance mandate. Hold that it is unconstitutional.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).
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