In an opinion today, Judge Pauley dismissed the ACLU’s challenge to the NSA’s bulk collection of telephone metadata and denied the ACLU’s motion for a preliminary injunction. The opinion begins:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
Prior to the September 11th attacks, the National Security Agency (“NSA”) intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (“FBI”) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States. The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program — a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data. This blunt tool only works because it collects everything.
The statute authorizing the collection, Section 215 of the Patriot Act, allows the government to collect information “relevant to an authorized investigation” of terrorism, and Judge Pauley found that the bulk collection of data met that standard:
The concept of relevance in the context of an investigation does not require the Government to parse out irrelevant documents at the start of its investigation. Rather, it allows that Government to get a category of materials if the category is relevant. The question of the permissible scope is generally “variable in relation to the nature, purposes and scope of the inquiry.” Okla. Press Pub. Co. v. Walling, 327 U.S. 186,209 (1946). Defining the reasonableness of a subpoena based on the volume of information to be produced would require the Government to determine wrongdoing before issuing a subpoena — but that determination is the primary purpose for a subpoena. See Okla. Press Pub. Co., 327 U.S. at 201 (noting that administrative subpoenas are authorized “to discover and procure evidence, not to prove a pending charge or complaint, but upon which to make one”). And in the context of a counterterrorism investigation, that after-the-attack determination would be too late.
Judge Pauley also found that the collection was consistent with the Fourth Amendment, largely based on the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which held that installing a pen register was not a “search” within the meaning of the Fourth Amendment:
The ACLU’s pleading reveals a fundamental misapprehension about ownership of telephony metadata. In its motion for a preliminary injunction, the ACLU seeks to: (1) bar the Government from collecting “Plaintiffs’ call records” under the bulk telephony metadata collection program; (2) quarantine “all of Plaintiffs’ call records” already collected under the bulk telephony metadata collection program; and (3) prohibit the Government from querying metadata obtained through the bulk telephony metadata collection program using any phone number or other identifier associated with Plaintiffs. Pls. Mot. at 2. [T]he business records created by Verizon are not “Plaintiffs’ call records.” Those records are created and maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information. See Smith, 422 U.S. at 742. . . . The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.
Our prior posts on the case are here.