A trio of conservative appellate judges sounded skeptical Tuesday about a challenge to the National Security Agency’s massive collection of telephone data.
In a high-tech privacy case that might be bound for the Supreme Court, the appellate judges resisted arguments made by a self-styled public advocate and his civil libertarian allies. After 95 minutes of oral argument, the judges seemed unlikely to permit a trial judge’s initial injunction blocking the NSA’s collection of data on two challengers.
The argument before three Republican appointees on the U.S. Court of Appeals for the District of Columbia Circuit highlighted the serious questions posed by the NSA’s voracious appetite for data.
“I understand this is a brand-new world,” said Judge Janice Rogers Brown. “I understand the aggregation of information is unlike anything we’ve seen before.”
The telephone metadata at the heart of the case include the call length, phone numbers used to make or receive calls and when the calls took place. They don’t include the content of the calls. Intelligence analysts use metadata to discern connections between terrorist organizations and operatives.
Critics have estimated that the government’s call-record database contains billions of records.
Attorney Larry Klayman, who’s filed dozens of lawsuits against presidents going back to Bill Clinton’s era, challenged the NSA program on behalf of himself and Charles Strange, whose son Michael died in Afghanistan while serving as a cryptologic technician with a Navy SEAL team.
On Tuesday, Klayman at times seemed to irritate the judges by not fully answering their questions, even as he fervently stressed the case’s importance.
“This is the most outrageous abuse of freedom in our history,” Klayman declared. “If King George III had the same powers as the NSA, our Founding Fathers would never have made it to Philadelphia.”
Klayman was facing a tough crowd.
Brown, a former California state judge, is a strict conservative appointed by President George W. Bush. Judge David Sentelle, a North Carolina native, is a Reagan administration appointee known as a law-and-order conservative. Judge Stephen Williams is also a Reagan appointee.
Justice Department attorney H. Thomas Byron III told the judges the NSA’s metadata program is “designed to advance our counterterrorism efforts,” adding that it does so in a way that poses, at most, only a “very limited intrusion” on personal information.
“This is not a search under the Fourth Amendment,” Byron said. “There is no reasonable expectation of privacy” in the phone numbers that one dials.
Privacy advocates, though, fear the phone numbers can add up to patterns.
“If you know that I got a call from my husband, you know one thing,” Electronic Frontier Foundation Legal Director Cindy Cohn said, on behalf of her organization and the American Civil Liberties Union. “If you know I got a call from my husband after he gets a call from his oncologist, you know something else.”
The ACLU filed a separate challenge to the metadata program in another appellate circuit, where a decision is still pending. If the two appellate circuits reach different conclusions, the Supreme Court will almost certainly have to resolve the dispute.
Last December a federal judge appointed by Bush ruled that the mass collection of telephone data “likely” violates the Constitution.
“I believe that bulk telephony metadata collection almost certainly does violate a reasonable expectation of privacy,” U.S. District Judge Richard Leon wrote, citing the “almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States.”
Leon imposed an injunction to protect Klayman and Klayman’s client, but he also put his ruling on hold pending appeal.
The NSA case could turn on a 1979 Supreme Court decision known as Smith v. Maryland, which concluded that individuals have no reasonable expectation of privacy in the phone numbers they call. That ruling permitted police to install a “pen register” on a suspect’s phone, recording numbers, without a specific warrant.
Williams, echoed by Sentelle, repeatedly pressed Klayman to “explain to us” how the metadata now being collected goes well beyond the pen register information permitted to be collected under the Smith decision. He also stressed that Klayman hadn’t proved that his own records had been examined, potentially undercutting the attorney’s ability to bring the lawsuit.
Sounding dubious about the proposition, Sentelle asked, “Is just the collection itself an invasion of privacy?”