ACLU v. Clapper

ACLU v. Clapper
Court	United States District Court for the Southern District of New York
Decided	December 28, 2013
Case history
Prior action(s)	Filed, June 11, 2013
Court membership
Judge(s) sitting	William Pauley

National Security Agency surveillance
Map of global NSA data collection, with countries subject to the most data collection shown in red
Programs Pre-1978 ECHELON MINARET SHAMROCK PROMIS Since 1978 Upstream collection BLARNEY FAIRVIEW Main Core ThinThread Genoa Since 1990 RAMPART-A Since 1998 Tailored Access Operations Since 2001 OAKSTAR STORMBREW Trailblazer Turbulence Genoa II Total Information Awareness President's Surveillance Program Terrorist Surveillance Program Since 2007 PRISM Dropmire Stateroom Bullrun MYSTIC MonsterMind (alleged) Databases, tools etc. PINWALE MARINA Main Core MAINWAY TRAFFICTHIEF DISHFIRE XKeyscore ICREACH BOUNDLESSINFORMANT GCHQ collaboration MUSCULAR Tempora
Legislation Safe Streets Act Privacy Act of 1974 FISA ECPA Patriot Act Homeland Security Act Protect America Act of 2007 FISA Amendments Act of 2008
Institutions FISC Senate Intelligence Committee National Security Council
Lawsuits ACLU v. NSA Hepting v. AT&T Jewel v. NSA Clapper v. Amnesty Klayman v. Obama ACLU v. Clapper Wikimedia v. NSA US v. Moalin
Whistleblowers William Binney Thomas Drake Mark Klein Edward Snowden Thomas Tamm Russ Tice
Publication 2005 warrantless surveillance scandal Global surveillance disclosures (2013–present)
Related Cablegate Surveillance of reporters Mail tracking UN diplomatic spying Insider Threat Program Mass surveillance in the United States Mass surveillance in the United Kingdom
Concepts SIGINT Metadata
Collaboration United States CSS CYBERCOM DOJ FBI CIA DHS IAO Five Eyes CSEC GCHQ ASD GCSB Other DGSE BND
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American Civil Liberties Union v. James Clapper, No. 13-3994 (S.D. New York December 28, 2013), 959 F.Supp.2d 724,^[1] was a lawsuit by the American Civil Liberties Union (ACLU) and its affiliate, the New York Civil Liberties Union, against the United States federal government that challenged the legality of the National Security Agency's (NSA) bulk phone metadata collection program. On December 27, 2013, the United States District Court for the Southern District of New York dismissed the case, finding that the collection of metadata did not violate the Fourth Amendment. On January 2, 2014, the ACLU appealed the ruling to the United States Court of Appeals for the Second Circuit. On May 7, 2015, the appeals court ruled that Section 215 of the Patriot Act did not authorize the bulk collection of metadata, which judge Gerard E. Lynch called a "staggering" amount of information.^[2]

Background[]

The lawsuit arose in the wake of disclosures released by Edward Snowden that revealed a system of global surveillance by the NSA and international partners.^[3][4] The Guardian revealed that the Foreign Intelligence Surveillance Court, at the request of the NSA, had ordered Verizon to hand over the communication records from the past three months of many of its subscribers. The numbers of both parties on a call were handed over, as was the call's location, time, and duration. The contents of the conversation itself were not covered in the order. Because the data is classified as "metadata," it does not require a warrant to obtain under the Patriot Act.^[5]

Claims[]

Director of National Intelligence James R. Clapper

The American Civil Liberties Union and the New York Civil Liberties Union sued Director of National Intelligence James R. Clapper, NSA Director Keith B. Alexander, Secretary of Defense Chuck Hagel, Attorney General Eric H. Holder, and FBI director Robert S. Mueller III for declaratory and injunctive relief from alleged constitutional rights by the NSA's bulk phone call metadata collection program. The petitioners claimed that the bulk metadata collection program violated their First and Fourth Amendment rights.^[6] Specifically, they argued that the NSA's collection of their call metadata constituted an invasion of privacy and unreasonable search and seizure under the Fourth Amendment for Verizon subscribers and that collecting the data could inhibit their and their partners' free speech guaranteed by the First Amendment.

District Court opinion[]

On December 28, 2013, Judge William Pauley dismissed the case.

The court ruled that phone users had no reasonable expectation of privacy that would give them Fourth Amendment rights. Citing the 1979 Smith v. Maryland decision as precedent, the court found that under the Fourth Amendment, individuals had no expectation of privacy for information provided to third parties like phone companies.^[7][8][9] Because all data collected by the NSA was voluntarily revealed to the phone companies by users, they could not expect it to remain private. The court found no reason that Smith v. Maryland, which concluded that similar phone metadata was outside the expectation of privacy, would not apply to the NSA's program.^[10]

The court also found that the NSA's internal procedures prevented using the metadata to violate the Fourth Amendment. The querying process required approved "seeds" that passed the Reasonable Articulable Suspicion (RAS) test and results within three hops only of these seeds were returned. According to General Alexander, the NSA did not perform any pattern analysis or automated data mining to extract additional information from the metadata.^[11] The court rejected the ACLU's argument that three-hop analysis could be performed without first constructing a database of recordings of every phone call,^[12] declaring that the "Supreme Court repeatedly refused to declare that only the least intrusive search practicable is reasonable under Fourth Amendment."

The court was cognizant of the surveillance program's benefits and argued that the program had successfully stopped terrorist attacks, citing several examples provided by the government at a hearing held on June 18, 2013 by the House Permanent Select Committee on Intelligence.^[13][11][14] In particular, the ruling referred to the program's success at identifying Najibullah Zazi in connection with the New York City Subway bombing plot, Khalid Ouazzani in connection with the New York Stock Exchange bombing plot, and David Headley in connection with the Mumbai bombings and Danish newspaper bombing plots.

Pauley concluded that even though the privacy concerns were not "trivial," the potential benefits of surveillance outweighed these considerations.

Impact[]

Some^[who?] argued that the case created public confusion by conflicting with Klayman v. Obama. A district court opinion that found the NSA surveillance was "Orwellian" and "likely unconstitutional."^[15]

Case developments[]

On January 2, 2014, ACLU appealed the dismissal to the Second Circuit Court of Appeals. The organization argued that,

"The government has a legitimate interest in tracking the associations of suspected terrorists, but tracking those associations does not require the government to subject every citizen to permanent surveillance. Further, as the president's own review panel recently observed, there's no evidence that this dragnet program was essential to preventing any terrorist attack. We categorically reject the notion that the threat of terrorism requires citizens of democratic countries to surrender the freedoms that make democracies worth defending."^[16]

The Second Circuit heard oral arguments in the case on September 2, 2014.^[17]

Appeals Court opinion[]

On May 7, 2015, a three-judge panel for the Second Circuit held that "the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates Section 215 of the Patriot Act. Accordingly, we VACATE the district court's judgment dismissing the complaint and REMAND the case to the district court for further proceedings consistent with this opinion."^[18]

FISC temporarily overturned Appeals Court opinion[]

According to the ACLU, "following the passage of the USA Freedom Act, the government petitioned FISC to allow the NSA to restart the program, arguing that the new law allows it to continue bulk collection during a 180-day transition period.^[19] The FISC granted the petition, but as the ACLU has argued in a new motion filed with the Second Circuit Court of Appeals, the Freedom Act does not permit bulk collection during the transition period, and even if it did, the bulk collection is unconstitutional. The ACLU has asked the court of appeals to halt the continued collection."^[20]

In Smith v Obama Appellate Court reports mass metadata collection stopped[]

According to the ACLU, which joined the case in December 2016, the Appellate Court ruled that because the collection of the metadata on all citizens has stopped, Smith's case was moot. The ACLU said, "In March 2016, the Ninth Circuit ruled that Smith’s challenge to the continued collection of her call records was moot, as the USA Freedom Act had ended that collection. It remanded the case to the district court, however, for consideration of Smith’s challenge to the government’s continued retention of her call records."^[21]

See also[]

• Litigation over global surveillance
• Klayman v. Obama

References[]

External links[]

• Ruling in ACLU v. Clapper
• ACLU page on ACLU v. Clapper
• Legal documents of ACLU v. Clapper
• Initial complaint