ACLU v. Clapper
|ACLU v. Clapper|
|Court||United States District Court for the Southern District of New York|
|Decided||December 28, 2013|
|Prior action(s)||Filed, June 11, 2013|
|Judge(s) sitting||William Pauley|
National Security Agency surveillance
American Civil Liberties Union v. James Clapper, No. 13-3994 (S.D. New York December 28, 2013), 959 F.Supp.2d 724  was a lawsuit by the civil liberties promoting nonprofit organization 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 (NSA)'s bulk phone metadata collection program. On December 27, 2013, the court dismissed the case, finding that metadata collection 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.
The lawsuit came in the wake of disclosures by Edward Snowden of a system of global surveillance by the NSA and international partners. The Guardian revealed that the Foreign Intelligence Surveillance Court, at the request of the National Security Agency, had ordered Verizon to hand over the communication records of many of its subscribers from a three-month period. The numbers of both parties on a call were handed over, as was call 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.
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. They claimed that the bulk metadata collection program violates their First and the Fourth Amendment rights. In specific, they argued that, as Verizon subscribers, the NSA's collection of their call metadata constituted an invasion of privacy and unreasonable search and seizure under the Fourth Amendment 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 have no expectation of privacy for information they provide to third parties, like phone companies. Because all the data collected by the NSA is voluntarily revealed to the phone companies by users, they cannot expect it to remain private. They find no reason Smith v. Maryland (1979), which found that similar phone metadata was outside the expectation of privacy, would not apply to the NSA's program.
The court also found that the NSA's internal procedures prevent using the phone call metadata to violate the Fourth Amendment. The querying process requires approved "seeds" that pass the Reasonable Articulable Suspicion (RAS) test and only results within three-hops of these seeds are returned to the analysts. According to General Alexander Keith, the NSA does not do any pattern analysis or automated data mining to extract additional information from the metadata. The court rejected ACLU's argument that the three-hop analysis can be performed without the need of government first building up a database of each and every phone call record declaring that "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 in the US House committee hearing on Intelligence (held on June 18, 2013). 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 New York Stock Exchange bombing plot and David Headley in connection with Mumbai bombings and Danish newspaper bombing plot.
Pauley concluded that even though the privacy concerns were not "trivial", the potential benefits of surveillance outweighed these considerations.
On January 2, 2014 ACLU appealed the dismissal in the Second Circuit Court of Appeals. They argue "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." The Second Circuit heard oral arguments in the case on September 2, 2014.
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."
FISC Temporarily Overturned Appeals Court Opinion
According to the ACLU, "Following the passage of the USA Freedom Act, the government petitioned the Foreign Intelligence Surveillance Court 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. 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, bulk collection is unconstitutional. The ACLU has asked the court of appeals to halt the continued collection."
In Smith v Obama Case Appellate Court Reports Mass Metadata Collection Has Stopped
According to the ACLU, which joined the case, in December 2016, the Appellate Court ruled that because 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." 
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- "U.S. NSA domestic phone spying program illegal: appeals court". Reuters. 7 May 2015.
- Barton Gellman (24 December 2013). "Edward Snowden, after months of NSA revelations, says his mission's accomplished". The Washington Post. Retrieved 25 December 2013.
Taken together, the revelations have brought to light a global surveillance system...
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- Pauley III, William H. (December 27, 2013). "United States District Court Southern District of New York: American Civil Liberties Union v. James R. Clapper (13 Civ. 3994 (WHP))" (PDF). American Civil Liberties Union. Retrieved December 28, 2013.
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- Ackerman, Spencer (18 June 2013). "NSA chief claims 'focused' surveillance disrupted more than 50 terror plots Keith Alexander testifies to Congress that programs revealed by Edward Snowden have stopped 'more than 50' attacks". The Guardian. Retrieved 3 March 2013.
- Schmitt, Gary (January 13, 2014). "A Tale of Two Judges". The Weekly Standard. Retrieved March 9, 2014.
- "ACLU Appeals Dismissal of Lawsuit Challenging NSA Call-Tracking Program | American Civil Liberties Union". Aclu.org. 2014-01-02. Retrieved 2014-02-02.
- "ACLU v. Clapper Oral Argument". C-SPAN. 2014-09-02. Retrieved 2014-10-30.
- "Second Circuit Court of Appeals Ruling in ACLU v. Clapper (Docket No. 14‐42‐cv)" (PDF). USCourts.gov. 2015-05-07. Retrieved 2015-05-07.
- "SMITH V. OBAMA – CHALLENGE TO NSA MASS CALL-TRACKING PROGRAM" December 1, 2016, https://www.aclu.org/legal-document/smith-v-obama-appeals-court-opinion