United States District Court Case Provides Potential for Paradigm Shift in Surveillance Practices

Photo Credit: AP[1]

The district court decision and subsequent appeals in Klayman v. Obama may result in a paradigm shift in terms of what constitutes acceptable surveillance procedures.  A paradigm shift could hail the end of certain warrantless data collection practices of the National Security Agency (NSA), whose headquarters is pictured above.

By: James N. Hendershot

On Monday, December 16, 2013, Federal District Court Judge Richard Leon, an appointee of President George W. Bush, granted two motions for preliminary injunctions in Klayman v. Obama. The order entered by Judge Leon prohibits the government from collecting telephone metadata through the NSA’s Telephony Metadata Program, and requires the government to destroy any data collecting through the metadata collection program. Judge Leon has stayed enforcement of the order pending the outcome of a government appeal on the matter. Nevertheless, the decision has the potential to end the metadata collection as it currently exists.  As such, the opinion signals a paradigm shift in what constitutes permissible surveillance in the current digital age.

This case has not been the sole challenge to NSA surveillance practices. In November 2013, the Supreme Court rejected a challenge to NSA surveillance practices by the Electronic Privacy Information Center. On September 18, 2008, the Electronic Frontier Foundation filed a class action suit in California against the NSA alleging that the NSA maintains an illegal and unconstitutional program of dragnet communications surveillance. This case is currently pending before the District Court in the Northern District of California.

While not the sole challenge to NSA practices and procedures, Klayman v. Obama has been the most successful challenge to date. In Judge Leon’s opinion, which spans 68 pages, he lambasts NSA metadata collection practices as “almost Orwellian,” noting that he could not imagine a “more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.” In addition, Judge Leon noted that the government failed to cite a single instance wherein the government metadata collection practices prevented an imminent terrorist attack. Though a request for a preliminary injunction does not require a court to directly rule on the contested issue, Judge Leon left no doubts as to his thoughts on NSA metadata collection practices.

However, Judge Leon did note that given current United States Supreme Court precedent, a proper constitutional ruling on the issue would prove difficult. This is because the government relies on the 1979 Supreme Court case of Smith v. Maryland in arguing that NSA practices are constitutionally permissible. However, Judge Leon found that Smith v. Maryland was inapplicable to NSA metadata collection practices, because Smith v. Maryland permitted the police, without a warrant, to install a device to record numbers dialed on a particular phone line. Judge Leon observed that since Smith v. Maryland, telephone use has become far more sophisticated and commonplace.  The Judge noted “[t]he ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives.” Because Smith v. Maryland predated cell phones, Judge Leon found that the case was ill-suited to guide the analysis of the Fourth Amendment issue at hand.

Judge Leon makes a particularly good point in his discussion of Smith v. Maryland: the case is an anachronism in our digital age. The cell phone did not exist in 1979, and few could have dreamed that one could read the news, updated instantaneously, from a device that fits in the palm of one’s hand and can also make phone calls. The digital age has revolutionized the way United States citizens communicate with one another, and the law must fit this reality. In particular, the law governing what constitutes permissible surveillance policies must realign with the realities of the digital age.

The case of Klayman v. Obama, given the certainty of government appeal, will provide higher courts with the chance to craft precedent in harmony with the realities of daily living in the 21st century. To the extent that the United States Court of Appeals for the District of Columbia Circuit or the United States Supreme Court examines the constitutional issues presented by NSA metadata collection practices and crafts new precedent, these courts have an opportunity to effect a paradigm shift in what constitutes permissible surveillance practices under the Fourth Amendment to the Constitution. Such a decision will doubtlessly have sweeping consequences with regard to Americans’ privacy rights in the 21st Century.

 

James N. Hendershot is third year law student at Penn State’s Dickinson School of Law. He serves as a senior editor of the Penn State Journal of Law and International Affairs. 


[1] http://www.philly.com/philly/news/politics/20140115_ap_37f5dfed8b3e42db8772a2825a5ef843.html.

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