I think that the court challenges to the NSA meta-data surveillance program are going to work out as follows. There are three key arguments. The statutory argument - the argument that the program is illegal, the Fourth Amendment argument - the argument that the program is an unreasonable search, and the First Amendment argument - the argument that the program places a chill upon the exercise of the right to freedom of association.

On the statutory front, I think the argument that the program is legal is pretty weak. However, the statue was also written in such a way that ordinary citizens are prohibited from raising statutory questions about it in court. I'm somewhat aghast that Judge Pauley saw fit to call the program legal, but he did so after saying that the ACLU had no standing to raise the issue anyway. I think higher courts will stop with the standing analysis. They will avoid a messy issue that they don't have to engage in.

On the Fourth Amendment front, I think that the courts will adopt the more traditional view of the Fourth Amendment presented in Judge Pauley's decision authorizing the surveillance program, rather than adopting the mosaic analysis that Judge Leon presented. There might be a minority dissent that embraces the mosaic approach, but that approach is just too new - it hasn't had the right amount of analysis and currency within the legal profession for the Supreme Court to use it to strike down a major government program. Furthermore, there are experts on the Fourth Amendment who have looked carefully at the mosaic approach and are advising the courts not to adopt it.

That leaves the First Amendment. I honestly believe that the First Amendment arguments against the meta-data surveillance program are stronger than the Fourth Amendment arguments. It seems clear that constant collection of data about people's associations would have a chilling effect on their exercise of their right to freedom of association. Furthermore, chilling effects are not a novel approach to First Amendment analysis, the courts have struck down laws based on chilling effects for many decades. The court need merely recognize the reality of the situation here and apply existing precedent properly in order to find that this program violates the First Amendment.

However, there are various reasons to think that this will not happen. The First Amendment issue doesn't seem to be as well understood within the legal profession and it hasn't been taken as seriously in general as I think it should. Judge Pauley wrote it off with a few paragraphs based on the idea that you can only speculate about whether or not your data will be analyzed by an NSA agent. I think that Pauley's argument is wrong - the certain and constant coll... [ Read More (0.4k in body) ]

This then may be the ultimate irony in this surveillance saga. Despite the current flood of protests, recriminations, and embarrassments -- and even a bit of legal jeopardy -- intelligence services around the world (including especially NSA) may come to find that Edward Snowden’s actions, by pushing into the sunlight the programs whose very existence had long been dim, dark, or denied -- may turn out over time to be the greatest boost to domestic surveillance since the invention of the transistor.

By creating pressures for a publicly acknowledged, commercially operated, "privatized" but government mandated data collection and retention regime, the ease with which new categories of long-sought data could be added to this realm -- especially in the wake of a terrorist attack that could be used as an ostensible justification -- seems significant to say the least.

Without having to worry so much about surreptitious programs being discovered, the government can concentrate on making its public case for the mandated retention of ever more forms of data -- which is already typically being collected in the course of business -- while vastly reducing or eliminating firms’ flexibility to delete and destroy such data on a more rapid and privacy-friendly schedule.

Lauren Weinstein's Blog: Unintended Consequences: How NSA Revelations May Lead to Even More Surveillance

Imagine if Congress passed an encrypted law. Everyone could see that a bill had been passed, and the President had signed it into law, but the text was unintelligible - a bunch of random characters. There are a few people who have access to the decryption key, and know what the law says. The President knows, as do judges on the Foreign Intelligence Surveillance Court, but their proceedings are secret.

Members of Congress were given access to the plaintext, but only AFTER they passed the bill into law. Some members of Congress have never been given access to the plaintext, and its not clear how many members of Congress have actually read it.

The member of Congress who sponsored the bill has told a federal judge that when he voted for it, he hadn't seen the plaintext and he was under the impression that the plaintext said something different from what it actually says. As a result, several commentators have accused that member of Congress of failing in his duty to read the plaintext when it was made available to him.

A young person who works in the government got access to the plaintext, and released it to news media. Now everybody knows what the law says. Some hail that young person as a hero. Others are angry at him for revealing the plaintext, and point out that he has also revealed a large amount of other information, unrelated to this encrypted law, and some of that information undermines U.S. strategic interests.

Should the Supreme Court uphold this law?

A civil liberties group asked the Supreme Court to overturn the law, and they refused, without explanation.

Two lower courts have noted that the law was written in such a way that ordinary citizens aren't allowed to make arguments in court about the law. One of the judges wrote the following:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have gotten access to the plaintext of this law but for the unauthorized disclosures by Edward Snowden. Congress did not intend that ordinary people would ever learn what this law says. And the statutory scheme also makes clear that Congress intended to preclude suits by ordinary people even if they discovered the true meaning of the law. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets - including the text of encrypted laws - could frustrate Congress's intent.

This is the situation in which we find ourselves.

Justice William O. Douglas, dissenting - 1972:

The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army's surveillance.... the surveillance was not casual, but massive and comprehensive...

Surveillance of civilians is none of the Army's constitutional business...

This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance.

When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.

APPENDIX III TO OPINION OF DOUGLAS, J., DISSENTING

Alexander I. Solzhenitsyn, the noted Soviet author, made the following statement March 30, 1972, concerning surveillance of him and his family (reported in the Washington Post, Apr. 3, 1972):

"A kind of forbidden, contaminated zone has been created around my family, and to this day, there are people in Ryazan [where Solzhenitsyn used to live] who were dismissed from their jobs for having visited my house a few years ago. A corresponding member of the Academy of Sciences, T. Timofeyev, who is director of a Moscow institute, became so scared when he found out that a mathematician working under him was my wife that he dismissed her with unseemly haste, although this was just after she had given birth and contrary to all laws. . . ."

"It happens that an informant [for his new book on the history of pre-revolutionary Russia] may meet with me. We work an hour or two, and, as soon as he leaves my house, he will be closely followed, as if he were a state criminal, and they will investigate his background, and then go on to find out who this man meets, and then, in turn, who that [next] person is meeting."

"Of course, they cannot do this with everyone. The state security people have their schedule, and their own profound reasoning. On some days, there is no ... [ Read More (1.3k in body) ]

We now have two district court rulings on the legality and constitutionality of the NSA meta-data surveillance program. One decision, from Judge Leon, concludes that the program is likely unconstitutional, and the other decision, from Judge Pauley, concludes that the program is lawful and is not unconstitutional. Thus the stage has been set for a debate at higher levels of the court system.

This debate has thus far focused primarily on the Fourth Amendment questions raised by this surveillance program, as well as the statutory questions. On the Fourth Amendment front, Judge Pauley relies on a traditional interpretation of Smith v. Maryland, holding that the government can obtain your phone records, without probable cause or a warrant. Judge Leon presents a newer perspective that the broad scope of this NSA meta-data surveillance program makes it an unreasonable search even though a search of a more limited scope might be reasonable. On the whole, Judge Pauley's approach is more in line with the way that courts have addressed these Fourth Amendment questions in the past, and there are strong arguments that the courts should stick to this traditional approach, such as those made by Orin Kerr.

Unfortunately, the First Amendment issues seem to be a secondary concern in this debate. Judge Leon didn't address them. Judge Pauley spent a few paragraphs on them in his decision. However, numerous commentators on Pauley's ruling have skipped over that section. For example, Benjamin Wittes didn't include the First Amendment as a "key issue" in his blog post about Judge Pauley's ruling.

I think that the First Amendment issues deserve closer consideration. A program that collects telecom metadata is a program that collects information about a person's associations. We have a right to freedom of association, and that right is obviously impacted on some level by government surveillance of it's exercise. Any desire or expectation that we have that our telecom meta-data should remain private must stem from a desire to be able to exercise our right to freedom of association without government scrutiny. (See Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance by Katherine J. Strandburg, NYU)

Judge Pauley dismisses the First Amendment concerns with this program for two reasons, neither of which I find completely persuasive. The first reason is the principle that the First Amendment does not prohibit the government from performing searches that are considered reasonable under the Fourth Amendment. The idea that the framework of the Fourth Amendment provides adequate protection against the impact that searches can have on First Amendment rights is a decent rule o... [ Read More (0.8k in body) ]

Thurgood Marshall, disenting, Smith vs. Maryland

The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government’s previous reliance on warrantless telephonic surveillance to trace reporters’ sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

Asking the N.S.A. the Right Question : The New Yorker

What became increasingly clear as the day wore on is how unable the NSA is to appreciate the possibility that the rules themselves might be legally or constitutionally invalid. Perhaps the metadata program which collects electronic records is not authorized by Congress or is prohibited by the Constitution. Several of the officials bristled at any suggestion that the agency was actually exceeding its legal authority, even though there are good arguments on both statutory and constitutional grounds.

My day at the NSA: A pr campaign for secret surveillance programs | MSNBC

It has become increasingly clear that many politicians who support the NSA meta-data surveillance program do not understand the substantive arguments against that program. Although the arguments have been made in numerous forums, I'm not sure that they have all been collected in a single brief. The purpose of this blog post is to summarize the key points in plain language that is easy to understand.

There are three key points.

1. The meta-data program is not authorized by law.

If Congress had intended to authorize the NSA to collect all business records everywhere, you'd think they would have written a statue that actually says that. However, Section 215 of the PATRIOT ACT only authorizes the collection of business records if those records are relevant to a terrorism or foreign intelligence investigation. If you ask most Americans if they think their personal phone records are relevant to a terrorism investigation, they are going to say no. Therefore, there are serious questions as to whether this statute actually authorized such a broad records collection program.

The counter argument that has been made in defense of the program is that any business record is relevant to a terrorism investigation if the reason that the NSA wants the record is because they are investigating terrorism. The argument goes that the purpose of the "relevance" limitation is to prohibit the NSA from collecting records for a project that has nothing to do with intelligence or anti-terrorism work. Its hard to imagine a project at the NSA that might involve the collection of domestic business records that has nothing to do with anti-terrorism or counterintelligence work, but according to the defenders of the meta-data program, the "relevance" language was intended to prohibit the use of this authority for those kinds of projects.

Frankly, if Congress intended to authorize the collection of everyone's meta-data, they should have written a statute that clearly said so.

2. The meta-data program violates the First Amendment to the Constitution.

The Constitution protects the right to freedom of association. Telecom meta-data is essentially a record of your associations - who you communicate with, when, and for how long. If the government keeps tabs on your associations and stores that information for years, this might deter your free exercise of your right to associate with other people. You might reasonably fear that your associations could come back to haunt you, and you might choose, therefore, not to communicate with someone that you want to communicate with.

This concern is rational even if the current government would not sanction you for the company that you keep. The records of your associations are kept for a long time, and if a future government decided they didn't like one of your associates, the records of your association with that person would be available for them to examine. Given the history ... [ Read More (0.4k in body) ]

Rep Mike Rogers:

"You get three pieces of a 1,000 piece puzzle and you think you have all the answers. Just because the NSA has a phone number doesn't mean it listens to the phone calls," he said.

Maybe the reason that our political leadership supports mass surveillance is because they are simply too stupid to understand the objections to it.

Snowden speech to EU parliament could torpedo US trade talks | ITworld

THIS:

What his ruling does is deprive the N.S.A. of the argument of obviousness: the idea that what it is doing is plainly legal, plainly necessary, and nothing for decent people to worry about.

This judge is worried...

We hear a lot, he writes, about the expectation of privacy, and how it has disappeared in this day and age—don’t we all know we leave digital trails that can be followed? If we have given up on the privacy of our metadata, Judge Leon writes (quoting Smith in part), “I would likely find that is the result of ‘ “conditioning” by influences alien to well-recognized Fourth Amendment freedoms.’ ”

In other words, cynicism does not give the government a pass when it comes to its constitutional obligations. And neither should the courts. We are allowed to expect more.

The Domino's Hypothetical: Judge Leon vs. the N.S.A. : The New Yorker