POSTED BY Emily O’Toole
In 2013, the District Court of the United States issued two conflicting
decisions about whether or not the bulk collection of U.S. citizens’ telephone
metadata, in light of advances in technology, violates the Fourth Amendment of the
Constitution. The Fourth Amendment protects citizens “against unreasonable
searches and seizures” of their persons, homes, and effects. Telephone metadata
includes, phone numbers dialed, trunk information, and other session identifying
information such as phone call length.
The NSA carried out this bulk collection without discrimination or warrants,
which includes millions of Americans’ daily phone metadata. The NSA then stores
the information for five years. The information, however, is left untouched unless
FISC grants the NSA permission to review it due to a reasonable articulable suspicion
about specific numbers or callers. Once the NSA has permission, they trace whom
certain numbers called, and then whom those people called. The bulk of the phone
metadata is left untouched.
The first District Court case challenging the constitutionality of the NSA
program was Klayman v. Obama. The Klayman court failed to follow the case
precedent of Smith v. Maryland regarding the constitutionality of metadata
collection. Klayman interpreted the Smith issue very narrowly as a question of the
technology used to collect phone metadata. The Klayman court, while admitting
that phone metadata is unchanged, determined that the bulk collection possible
today is very different from the type of singular phone metadata collection that the
Smith case held constitutional. Today, people use cell phones more often and in
more ways than people ever used home phones in 1979. The amount of information
the government is able to store is also beyond the scope of what a court in 1979
could have imagined. Therefore, the court in Smith held that phone owners who
willingly share phone metadata with third parties and thus have no expectation of
privacy, did not apply to Klayman. The court held that the NSA collection of phone
metadata was unconstitutional because its scope and invasiveness, due to American
use of cell phones, violates a persons’ reasonable expectation of privacy.
The Klayman court managed to side step binding Supreme Court precedent
through a narrow reading of the precedent issue. The District Court in the American
Civil Liberties Union case reached its decision one week after Klayman. That
Court recognized that Smith is binding precedent for questions regarding the
constitutionality of phone metadata collection. The opinion stated that a change in
the volume of information available, due to the advanced technology of cell phones,
does not change that phone metadata is considered information for which telephone
users have no expectation of privacy. The ability to store previously unimaginable
amounts of phone metadata, which the NSA cannot examine further without FISC
approval, also does not change the constitutionality of collecting the data without
a warrant. The Court held that the warrantless collection of phone metadata from
one person or from one million people due to more advanced technology, does not
violate the Fourth Amendment of the United States.
The American Civil Liberties Union decision is the only decision that
should have been made by a district Court regarding the constitutionally of the
NSA collecting bulk amounts of phone metadata without a warrant. Regardless of
how wrong it may feel to collect telephone metadata on a nationwide scale, it is
constitutional according to the Supreme Court. Only the Supreme Court can reverse
itself to decide that the bulk collection of phone metadata is unconstitutional in light
of advances in technology. The Supreme Court may reverse itself someday, but, as
it stands for the moment, the NSA’s bulk collection of metadata does not violate the
Fourth Amendment of the Constitution.
Blogger Bio:
Emily is currently a 2L staff member on the Journal of High Technology Law
at Suffolk University Law School. She has a Bachelor’s Degree from Fairfield
University, and she hopes to work in public interest upon graduation from Suffolk
Law.
