Wednesday, December 18, 2013

KLAYMAN et al., v. OBAMA et al.

US District Court for the District of Columbia

Has ruled that the mass collection of telephone metadata by the NSA is unconstitutional.

Dispenses with Smith v. Maryland

Smith v. Maryland is the case cited by the government in proclaiming that the collection of telephone metadata is not constitutionally protected, you have no reasonable expectation of privacy for numbers called and calls received, and  the data is in effect the business records of the phone company.

In Smith v. Maryland the police installed a pen register on the line of a person suspected of burglarizing and then harassing the victim of the burglary with threatening phone calls.  The police had an "individualized suspicion" and collected only the numbers called by the suspect without a warrant.  In that case the court ruled that a warrant was not necessary.

However, in Smith v. Maryland the police only collected the numbers called by the suspect, not every single phone call made in the State of Maryland, and therein lies the difference, at least in the Judge Leon's opinion.

The pen register in Smith was active only for a short span of time, March 6 - March 19 1976, provided no historical context, only a record of contacts while the device was installed.  That short-term, forward looking, and highly limited data collection was what the Supreme Court ruled on in Smith v. Maryland.

The notion that the government could collect similar data on hundreds of millions of people, keep that data for five years, and update that data daily would have been the stuff of science fiction.


How Telephone Metadata Collections and Queries Work.

"The Government, however, describes the advantages of bulk collection in such a way as to convince me that plaintiff's metadata - indeed everyone's metadata - is analyzed, manually or automatically, whenever the Government runs a query"
Starting with a phone number, call it (123) 456-7890 the database is queried generating a list of numbers for the past five years that ever called or were called by that number, that is "Hop 1"For the sake of simplicity lets say that Hop 1 generates a list of 100 phone numbers.

Hop 2 is a query against the list generated by Hop 1.  100 phone numbers for the past five years.  If each phone queried also dialed and received calls from 100 numbers in the past five years, we now have the list for Hop 2... a list of 10,000 phone numbers.

Hop 3 is a query against the list generated by Hop 2.  If each phone on the Hop 2 list also made and received calls from 100 numbers the list for Hop 3 now contains 1,000,000 phone numbers.

A Good Analogy


The difference between querying a phone number belonging to a domestic Verizon subscribers (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows.  A query that begins with a domestic phone number is like entering a library and looking to find all the sources that are cited in Battle Cry of Freedom by James McPherson.  You find that specific book, open it, and there they are.  "Hop 1" is complete.  Then you want to find all the sources cited within each of those sources ("Hop 2"), and so on.  At the end of a very long day you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom.

Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source.  It might be referenced in a thousand books. It might be in just ten.  It could be in zero.  The only way to know is to check every book.  At the end of a very long month, you are left with the "Hop 1" results (those books that cite Battle Cry of Freedom), but to get there you had to open every book in the library.

It is always in the public interest to prevent the violation of a party's constitutional rights.


Judge Richard Leon said it better than I could:

The public interest lies in enjoining unconstitutional searches.  That interest looms large in this case, given the significant privacy interests at stake and the unprecedented scope of the NSA's collection and querying efforts, which likely violate the Fourth Amendment.  Thus, the public interest weighs heavily in favor of granting an injunction.

The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable.

For the entire 68 page opinon:  

 US District Court for DC No. 13-0951

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