Cross posted from Frederick Leatherman Law Blog

Saturday, December 28, 2013

Good evening:

Introduction
We're the NSA
I write today comparing yesterday’s decision by Judge William H. Pauley that the NSA bulk collection of telephony metadata does not violate the Fourth Amendment to Judge Richard Leon’s decision last week that it does. The facts in both cases do not differ in a material or significant way and there is no dispute about the nature and extent of the NSA program or the applicable law. Nevertheless, the judges reach opposite conclusions.

The NSA Program

The NSA has been collecting in bulk form from the telecommunication service providers (e.g., Verizon, AT&T, Sprint) all of their telephony metadata and compiling it into a single database that can be searched by entering a particular telephone number, which they call the seed number. Then they run a search for all of the numbers called by the seed number and all of the numbers that called the seed number. These numbers are called the first hop numbers. Then they run the same search for all of the numbers called by the first hop numbers and numbers that called the first hop numbers. This second generation of numbers is called the second hop numbers. They repeat the same procedure for the the second hop numbers generating the third hop numbers. The time period covered by the search is five years and the database is updated every day. It’s possible to generate 1 million or more numbers in this fashion.

The FBI can search for numbers believed to be used by suspected terrorists and occasionally turn up numbers that might be used by other terrorists. The government claims that the major advantage of this system is that it greatly speeds up the investigative process and for this reason they say it’s an indispensable tool to use in the war against terror.

The government contends that no one can access the database to conduct a search for a seed number without obtaining permission to do so. They say permission will not be granted unless a reason exists to suspect that the seed number is being used by a person suspected of being involved in terrorist activity or the number has been contacted by such a person.

Smith v. Maryland, 442 US 735 (1979)

This is the SCOTUS case that established the legal rule in 1979 that a person does not have a reasonable expectation of privacy in their telephone number and the calls they make to other telephone numbers. In Smith, a woman named Patricia McDonough contacted police and told them that she had been robbed. She described the robber and said she thought he might have been driving a blue Monte Carlo that she noticed in the area.

After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. Id., at 70. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. Id., at 71-72. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. Id., at 72.

The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. Id., at 73, 75. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. Id., at 74. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence. Id., at 75. The search revealed that a page in petitioner’s phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Ibid. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. Id., at 70-71.

The petitioner was convicted and appealed arguing that the installation of the pen register without a warrant violated the Fourth Amendment. In an opinion written by Justice Blackmun, the SCOTUS rejected his argument.

When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. Tr. of Oral Arg. 3-5, 11-12, 32. We 745*745 are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.

Stare decisis, the application of legal principles or rules to decide disputes, and the effect that a judge’s personal philosophy has on choosing how to apply those principles

This unusual situation gives me a chance to explain some important legal principles about the respective roles of the US district courts, circuit courts of appeal, the SCOTUS and the principle of stare decisis in our legal system.

The primary role of the SCOTUS in our legal system is to reaffirm existing legal rules or create new legal rules as the circumstances warrant. SCOTUS decisions are binding authority on all lower courts, including state supreme courts on matters of federal or constitutional law. This means that all courts must apply the SCOTUS rule whether the lower court judges agree or disagree with the rule. This is the principle of stare decisis.

Because of the SCOTUS’s primary role as rule maker, it has the power to decide which cases it will consider. Parties who seek SCOTUS review do so by filing a petition for a writ of certiorari, or cert. If the SCOTUS decides to accept the case, it issues the writ, which is legalese for an order accepting review. The SCOTUS receives thousands of petitions for cert each year, but only grants a few depending on whether they want to reaffirm an existing rule or create a new rule. The justices will typically wait for a case with the right set of facts upon which to base their decision, as opposed to taking the first case that comes along. They do this because they want their decisions to appear to be reasonable, especially if they want to change a rule.

Sometimes they do not have the luxury of waiting for the right case with an optimal set of facts. For example, if there is a split in the circuits regarding a matter of pressing national importance, which will be the situation if the 2nd circuit affirms Judge Pauley’s decision and the DC Circuit affirms Judge Leon’s decision, the SCOTUS will probably feel obliged to grant cert in both cases and resolve the split so that everyone is playing by the same set of rules.

Federal circuit courts of appeal

These courts do not have control over their cases because litigants have a right to appeal trial court decisions with which they disagree, regardless of the merits of the legal issues raised by the parties. Decisions are rendered by three-judge panels and the decisions tend to be relatively straight forward in most cases. The judges select the rule to apply, apply it and decide the case. To find the applicable rule to apply, they first look to decisions by the SCOTUS. If they cannot find a case that has decided the issue, they look to decisions by their own circuit. If they still cannot find a case on point, they will look to decisions by other circuits. Such decisions are not binding authority, but are frequently cited as authority, if the judges agree with the decision.

Appellate courts are not interested in reviewing findings of fact on appeal and will refuse to review a challenged finding of fact unless it is clearly erroneous (i.e., not supported by any evidence introduced in the trial court). They confine their review to deciding whether the trial court correctly applied the right legal rule. For this reason, circuit court judges do not get many opportunities to create new rules.

As I stated in the previous section, Judge Pauley is in the 2nd circuit and Judge Leon is in the DC circuit.

United States District Courts

These are the trial courts in the federal system. The judges conduct evidentiary hearings to decide disputed issues of fact relevant to deciding pretrial motions and trials to decide the outcome of a disputed matters. Usually the parties to a civil lawsuit request jury trials. Defendants in criminal cases have a right to a jury trial unless they knowingly, intelligently and voluntarily waive their right to a jury trial.

The two judges who reached contrary conclusions regarding the NSA program are United States District Court judges.

Both judges agree that the right to privacy that is protected by the Fourth Amendment is not absolute. They agree that an individual’s right to privacy must be balanced against the government’s interest in protecting the safety of its citizens from terrorist attacks. They agree that the SCOTUS case that most closely resembles the facts in their respective cases is Smith v. Maryland, 442 US 735 (1979).

The basis of the dispute is that Judge Pauley is a conventional conformist who fears terrorists and trusts our government to act in our collective best interests; whereas, Judge Leon does not trust the government to act in our best interests. He is primarily concerned with the Orwellian nature of the NSA program and its effect on our privacy. Unlike Judge Pauley, he understands that freedom of expression and our right to privacy are fundamental rights that should not be abridged absent compelling evidence that the NSA program, which has been in effect since 2006, has obtained evidence that the FBI did not already know and prevented a terrorist attack. He reviews the NSA’s claims that they have prevented an attack and dismisses them as unconvincing.

Judge Pauley begins his analysis by playing the fear card reminding everyone about the 9/11 terrorist attack and never acknowledges that we have a better chance to be struck dead by lightning than we have of dying in a terrorist attack. Judge Leon acknowledges that terrorism constitutes a real threat, but he is clearly more concerned about the loss of our right to privacy. He begins his opinion with a discussion of the Fourth Amendment.

Judge Pauley emphasizes that the NSA program is our best chance to prevent another terrorist attack as though such an attack is a matter of when rather than whether. He believes the executive branch of our government is best suited to operate and monitor the program subject to the supervision of the Foreign Intelligence Surveillance Court (FISC). He trusts the government not to conceal what it is doing or lie to the FISC. He trusts the NSA to act in our collective best interests and he does not believe we the people have a reasonable expectation of privacy in our telephone numbers, the numbers we dial and the numbers who dial us. He does not see anything wrong with denying us an opportunity to complain that the NSA is violating our right to privacy and would accordingly deny us standing to file a complaint and present evidence in support of our claim.

Judge Leon believes that we should not permit the government to eliminate our right to privacy guaranteed by the Fourth Amendment absent compelling evidence that the program will prevent a terrorist attack.

Judge Pauley ruled that Smith v. Maryland, is binding authority, but Judge Leon distinguished the case on the basis of the enormous amount of change in the use of telephones since 1979 and the nature and extent of the NSA program, which far exceeds the simple use of a pen register for a short period of time in Smith.

Conclusion

I encourage readers to take the time to read the two opinions after reading my article that will provide important background information that should assist in understanding how the judges reached opposite conclusions on the same set of facts.

I believe the SCOTUS has been monitoring both cases from afar and I think the justices will ultimately grant cert in both cases and either reaffirm the decision in Smith or overrule it and announce a new rule based on the extensive change in circumstances since 1979.

I will leave readers with one final point. I do not believe the government’s claim that the purpose of the NSA program is to prevent another 9/11 terrorist attack.

I suspect the real purpose is to conduct domestic surveillance for political advantage and I hope that the justices will seriously consider that potential abuse in deciding whether to uphold or strike down the NA program.

Picture from KAZ Vorpal licensed under Creative Commons