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Outlawing the Metadata Program

by BINOY KAMPMARK

People have an entirely different relationship with phones than they did 34 years ago.

Judge Richard J. Leon in Klayman v Obama, US District Court for the District of Columbia, Dec 16, 2013

In the US political system, courts can be the ditchers and the saviours. They can be the government’s undertakers, or its buriers. This is the great hypocrisy of the Anglophone legal system: judges who make laws but claim they do not.

The recent round of law making regarding the National Security Agency may prove to be particularly important. In the decision of Klayman et al v Obama, plaintiffs Larry Clayman and Charles Strange, who challenged the constitutionality of various intelligence gathering practices by the US government “relating to the wholesale collection of the phone metadata of all US citizens” were not entirely disappointed. In Judge Leon’s view, such collection was “almost Orwellian” and in possible violation of the US Constitution.

Judge Richard J. Leon of the US District Court for the District of Columbia is not an easy one to pick. He throws in references to the Beatles and Ringo Starr in his judgments. He is not bound “by judicial sobriety”, to quote a statement by Sheryl Gay Stolberg of the New York Times (Dec 16).

The judge’s decisions can make colourful reading. He was nominated on September 10, 2001 by President George W. Bush and confirmed in 2002. He proved favourable to the government regarding the right (or in that case, non-right) of the Guantánamo detainees to due process. He sees himself as an expert of congressional investigations. As he suggested, somewhat wistfully, “We’re the oncologists of the legal profession” (New York Times, Dec 16).

In 2010, he regarded an obscenity case mounted by the prosecution against John A. Stagliano, a California pornographic producer, as “woefully insufficient.” In 2012, he took his judicial razor to the reasoning of the Food and Drug Administration in its use of imported sodium thiopental in executions. In his view, the FDA “appears to be simply wrapping in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner’s needle.”

The judicial oncologist may well have sided with the Bush administration in 2005, ruling that foreigners kept at Guantánamo could not be granted writs of habeas corpus, but he came storming back with his decision in 2008 that five Algerian men had been unlawfully held at the base for almost seven years. “Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.”

The greatest stumbling block in the reasoning of such justices as Mr Leon remains the decision of Smith v Maryland (1979). The US Supreme Court demonstrated a remarkable ignorance about intercept technology, amputating the law of privacy in one fail swoop in doubting, “That people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realise that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realise, morever, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly calls.” What the company does goes. He who knows what he is getting into, consents.

As far as Judge Leon was concerned, Smith v Maryland had gathered dust on the shelves of judicial deliberation, an anachronism in the face of modern technological changes. This was the era before metadata and cell phones, much different from a pen register device focused on a single suspect. “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

Judge Leon instead finds merit in Justice Sotomayor’s decision in United States v Jones (2012), where it was held that installing a Global Positioning System (GPS) on a vehicle and thereby using it to track its movements was a search under the Fourth Amendment. While Judge Leon knows he might be treading dangerously amidst the thorns of legal precedent, he puts his faith in the majority ruling statement of Jones – “[a]t bottom, we must ‘assur[e] preservation of that degree if privacy against government that existed when the Fourth Amendment was adopted.”

In Jones, it was accepted that the metadata derived from each phone “reflects a wealth of detail about their familial, political, professional, religious, and sexual associations.” The program in Smith lasted thirteen days. The NSA program in Klayman went for five years and “there is a very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!”

In so doing, the judge sidestepped the reasoning of the United States Court of Appeal, Ninth Circuit decision in City of Ontario v Quon (2010). There, the court felt that the judiciary should not seek to speculate on what new technologies could do before their means had been tested. In their view, one should restrain applying law before the consequences are known. As stated in that case, “At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”

Law and technology rarely dance in step. Rights and liberties have a habit of being frayed at the behest of new discoveries in world of science and technology. Samuel D. Warren and Louis Brandeis knew what that meant when they pondered how privacy might be affected by the emergence of intrusive photography in the fourth volume of the Harvard Law Review (1890). Technology transforms, but so do the laws associated with that move.

In any case, the NSA had not made its case for the use of the technology. In Judge Leon’s words, “Given the limited record before me at this pointing in the litigation – most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than any other investigative tactics – I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats to terrorism.”

If this decision can be given legs, it may go far. The judges in the upper echelons of the US judicial system may well shoot it down when the time comes – the decision of Smith may well prove to be a Banquo, reminding Judge Leon where he went wrong. Legal commentators are not giving the decision much staying power. Paul Rosenzweig, who served as Deputy Assistance Secretary for Policy in the Department of Homeland Security regards it as “prolix” and “not of long duration” (Lawfare, Dec 16). We can only hope that the opposition fires blanks. Reform is needed, and it is, so far as we can see, struggling in the legislative arena.

Dr. Binoy Kampmark was as Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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