The U.S. Court of Appeals for the 9th Circuit yesterday ruled that the National Security Agency’s bulk collection of Americans’ telephone records was illegal and probably unconstitutional. For Democrats who see Donald Trump as an unprecedented threat because of his disregard for the Constitution, the decision is a useful reminder that sacrificing civil liberties on the altar of national security is a bipartisan rite.
The NSA program, which was revealed by former NSA contractor Edward Snowden in 2013, indiscriminately collected telephone “metadata”—indicating who was calling whom and how long they talked—about millions of Americans for years. The program, which the USA FREEDOM Act ended in 2015, began under George W. Bush but continued during Barack Obama’s administration, which concealed its existence, then speciously defended its legality and usefulness.
“The administration has now lost all credibility,” The New York Times editorialized after Snowden’s revelations. “Mr. Obama is proving the truism that the executive will use any power it is given and very likely abuse it.”
James Clapper, the Air Force general whom Obama appointed as director of national intelligence, epitomized the administration’s dishonesty by blatantly lying to a Senate committee about the NSA’s data collection practices three months before the phone record database was revealed, then repeatedly lying about lying. In his latest incarnation, Clapper is a vociferous Trump critic who blames Russia for the election of a president he despises as a man “whose first instincts are to twist and distort truth to his advantage.”
Further scrambling the conventional understanding of which major party is more concerned about civil liberties, Obama tried to prosecute Snowden, while Trump, who in 2013 called Snowden “a traitor” who “should be executed,” last month suggested he might pardon the NSA whistleblower. Another interesting point Democrats might prefer to overlook: While questioning the constitutionality of the NSA’s metadata dragnet, the 9th Circuit cites Supreme Court Justice Neil Gorsuch, a Trump nominee who is a more reliable defender of the Fourth Amendment than the judge Obama wanted to appoint.
I am not for a moment suggesting that Trump’s new respect for Snowden, which is probably driven by his pique at “deep state” foes like Clapper, or his choice of Gorsuch, which was based on what he thought conservatives wanted, reflects civil libertarian principles (or any principles at all). But as this case shows, Trump’s polarizing personality tends to obscure the deeper problem of powers that tempt presidents to violate our rights, regardless of their personal traits, avowed principles, or party affiliation.
The prosecution that led to the 2nd Circuit’s decision involved four Somali immigrants who were convicted in 2013 of sending money to the terrorist group al-Shabab. While the ruling does not affect those convictions, it addresses the legality of the NSA’s phone record database, which supposedly played a crucial role in the case.
I say “supposedly” because that is what federal officials claimed while defending the NSA’s program. Then-FBI Deputy Director Sean Joyce, for example, told a congressional committee the database generated a tip that allowed the bureau to reopen its investigation of the suspected al-Shabab supporters. The 2nd Circuit rightly discounts such statements, which were part of a fact-deficient attempt to portray the program as an essential weapon against terrorism.
“The metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial,” the appeals court says. “To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record.” That’s a polite way of saying that Obama administration officials misled the public about the program’s value.
What about its legality? As the U.S. Court of Appeals for the 2nd Circuit did in 2015, the 9th Circuit makes short work of the government’s argument that the program was authorized by Section 215 of the PATRIOT Act, which allowed secret court orders “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation…to protect against international terrorism.” Such orders were supposed to be based on “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”
Using the same needle-in-a-haystack argument that was deployed by the Obama administration, the government’s lawyers maintained that everyone’s phone records are “relevant to an authorized investigation” because searching them might reveal useful clues. “Although admittedly a substantial portion of the telephony metadata that is collected would not relate to [terrorism suspects],” they said, “the intelligence tool that the Government hopes to use to find [investigation-related] communications—metadata analysis—requires collecting and storing large volumes of the metadata to enable later analysis.” According to the government, “all of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collection.”
The 2nd Circuit said “such an expansive concept of ‘relevance’ is unprecedented and unwarranted,” and the 9th Circuit concurs. The government’s interpretation “essentially reads the ‘authorized investigation’ language out of the statute,” it says. “We hold that the telephony metadata collection program exceeded the scope of Congress’s authorization.”
As for the program’s constitutionality, the government argued that it was covered by the third-party doctrine, which says people do not have a reasonable expectation of privacy regarding information they voluntarily divulge to others (in this case, the phone companies from which the NSA collected its metadata). The Supreme Court invented that doctrine in United States v. Miller, a 1976 case involving bank records. Three years later, the Court invoked the doctrine in Smith v. Maryland, which involved a warrantless “pen register” that police used to record the numbers dialed by a robbery suspect over the course of a few days. Although that situation is rather different from the collection of personal information about millions of people for years, the government argued that Smith shows the NSA’s program was consistent with the Fourth Amendment.
“There are strong reasons to doubt that Smith applies here,” the 9th Circuit says. “The distinctions between Smith and this case are legion and most probably constitutionally significant….Society may not have recognized as reasonable Smith’s expectation of privacy in a few days’ worth of dialed numbers but is much more likely to perceive as private several years’ worth of telephony metadata collected on an ongoing, daily basis—as demonstrated by the public outcry following the revelation of the metadata collection program.”
The Supreme Court in Smith drew a distinction between the “contents” of a phone call and information about numbers dialed, deeming the latter much less sensitive. But “in recent years the distinction between content and metadata ‘has become increasingly untenable,'” the appeals court notes. “The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it.”
The 9th Circuit emphasizes how revealing this information can be, quoting former NSA General Counsel Stewart Baker. “Metadata absolutely tells you everything about somebody’s life,” Baker said. “If you have enough metadata you don’t really need content.”
The appeals court illustrates that point with a couple of examples: “A woman calls her sister at 2:00 a.m. and talks for an hour. The record of that call reveals some of the woman’s personal information, but more is revealed by access to the sister’s call records, which show that the sister called the woman’s husband immediately afterward. Or, a police officer calls his college roommate for the first time in years. Afterward, the roommate calls a suicide hotline.”
And that’s just for a start. “Metadata can be combined and analyzed to reveal far more sophisticated information than one or two individuals’ phone records convey,” the 9th Circuit notes before quoting a brief filed by the Brennan Center for Justice: “It is relatively simple to superimpose our metadata trails onto the trails of everyone within our social group and those of everyone within our contacts’ social groups and quickly paint a picture that can be startlingly detailed.”
The 9th Circuit notes that the Supreme Court expressed similar concerns in Carpenter v. United States, the 2018 case in which the justices said the third-party doctrine does not apply to cellphone location data. Furthermore, the appeals court says, “numerous commentators and two Supreme Court Justices have questioned the continuing viability of the third-party doctrine under current societal realities.”
Here is where Gorsuch comes in. He dissented in Carpenter, not because he thought cops should be allowed to collect cellphone location data without a warrant but because he thought the third-party doctrine should be scrapped entirely, along with the malleable “reasonable expectation” test. Nowadays, Gorsuch noted, people routinely store sensitive information—including “private documents” that, “in other eras, we would have locked safely in a desk drawer or destroyed”—on third-party servers. According to the reasoning of Miller and Smith, he said, “police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.”
The 9th Circuit did not reach a firm conclusion about the constitutionality of the NSA’s program, because it was not necessary to decide whether the convictions should stand. But its observations show how readily the government invades our privacy on the flimsiest pretext, blithely dismissing constitutional concerns when they prove inconvenient. That alarming tendency cannot be corrected by switching out one politician for another.