Constitution Check: Is privacy now protected against massive telephone spying?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at constitutional challenges in U.S. federal courts to the NSA surveillance program, and why there is still not a final court ruling on its constitutionality.

THE STATEMENTAT ISSUE:

“Effective November 29, the United States Government will no longer be authorized to collect bulk telephony metadata…Under the new process [required by the USA Freedom Act], the call detail records will be held and queried by the telecommunications service providers, not by the government. That means the National Security Agency will send specific telephone numbers or other identifying ‘selectors’ related to international terrorism to the providers and receive results from the providers’ queries of their business records….By barring the government from collecting bulk telephony metadata,…and having the telecommunications providers hold and query this data, we have made great strides in strengthening privacy safeguards for individuals.”

– Excerpt from a fact sheet issued November 27 by the office of the Director of National Intelligence, explaining how the new program of NSA telephone surveillance will work.

WE CHECKED THE CONSTITUTION, AND…

The Fourth Amendment’s promise of privacy from government intrusion has been a part of the Constitution since 1791, but each new generation must define how broad that promise reaches. That’s because the Amendment only bans “unreasonable” intrusions, and what is generally considered to be “reasonable” has varied as technology has created new ways to monitor what people do.

Never in history, it now seems clear, has technology enabled more massive government surveillance of the American people than in the National Security Agency’s sweep of data about how millions of Americans use their telephone and telephone-assisted devices, including the use of the Internet. Begun secretly in May 2006, the breadth of the program was not fully disclosed publicly until news organizations began publishing stories in June 2013, based on leaked information provided by a former NSA contractor, Edward J. Snowden (he fled overseas, but still fades espionage charges).

Those revelations prompted a series of constitutional challenges in U.S. federal courts. Remarkably, nine years after the program began, and two years after those lawsuits were filed, there is still not a final court ruling on its constitutionality.

Here are the court results so far:

The Supreme Court has issued one ruling finding that the challengers could not get a ruling on the constitutionality because they could not show that they, personally, had been monitored by NSA. That has been a problem common to most of the challenges.

One federal trial judge, Richard J. Leon, in Washington, D.C., has twice ruled that the program probably would be declared a violation of the Fourth Amendment, if a full trial were held. He twice issued an order to NSA to end the bulk collection of data, but neither of those orders ever went into effect. Leon was the first to find telephone users whom he found probably had been monitored.

One federal appeals court, the Second Circuit, has ruled that Congress did not authorize the program in the scope that NSA developed it, but held back from ordering it to stop while Congress this year considered new limits on the program. It declined to rule on the constitutionality question.

A single federal appeals court judge, Brett M. Kavanaugh, in Washington, D.C., wrote an opinion that concluded that the program was valid under the Fourth Amendment. The ruling had no effect, however, because it was a solitary opinion as the District of Columbia Circuit Court refused to consider the case after blocking Judge Leon’s second order.

The most recent round of court rulings has focused on whether NSA could continue the program in its broadest scope during the six months that Congress provided as a transition period, before new limits on the program took effect this past weekend, on November 29. The courts allowed it to continue up to that deadline.

The legal battle, however, has not yet ended. A Washington, D.C., lawyer and former federal prosecutor, Larry E. Klayman, is planning to take to the Supreme Court the case that led to Judge Leon’s two rulings. With the bulk collection now ended, Klayman will be asking the Supreme Court to order NSA to purge its electronic files of any records it has of the telephone use by Klayman’s client, a private California lawyer, J.J. Little, and his firm.

Although the new law passed by Congress in June allows the NSA to keep the records it has compiled for a few months, but only for technical reasons and not surveillance, and NSA has promised to destroy all of the records as soon as that can be done after all lawsuits are over, Klayman will seek firmer assurances by asking the Justices to immediately order deletion of all of the Little law firm telephone records.

Separately, the Second Circuit Court has ordered a federal trial judge in New York City to examine whether anything remains of the challenge in that case, filed by the American Civil Liberties Union, and whether any retention of the past records by NSA is itself a constitutional violation – if that remains a live issue.

In handing that case back to the trial judge, the Second Circuit Court remarked: “What if any legal challenges arise from the new system have yet to be seen.”

Although the chances seem strong that NSA’s broad sweeps of telephone data will never be put to a final and decisive constitutional test by the courts, and while that could leave an enduring precedent of massive government monitoring of the people, the program has had a quite thorough public canvassing by the news media and all three branches of the national government since its existence became known two years ago.

It thus may continue as a cautionary tale about how a virtually complete shroud of secrecy can prevent, for years, anything like a public accounting of how the government uses the new marvels of technology to enhance the power it has over the people, even if the government has been satisfied of the necessity of using such power.