When Edward Snowden became sufficiently disillusioned with the activities of the National Security Agency to take the dramatic step of disclosing classified information about the collection of information on citizens and non-citizens alike, he opened one of the largest cans of worms ever. The fallout from his actions will be felt for years to come as individuals, organizations and courts tackle the thorny questions that his disclosures raised.
These questions have started to make their way not only through the Court of Public Opinion, but through the U.S. District Courts as well. Stunningly, within 11 December days of one another, two different district courts, the U.S. District Court for the District of Columbia and the U.S. District Court for the Southern District of New York, issued opinions that are in conflict with one another in direct and contrasting ways. To add to the mix, just before the issuance of the first court decision, on December 12th, The President’s Review Group on Intelligence and Communications Technologies issued its Report and Recommendations on these issues. Finally, as if there wasn’t enough to talk about on this issue at the water cooler, the New York Times, on January 1, 2014, wrote an editorial suggesting that Mr. Snowden’s actions constitute those of a whistle-blower, and that as such, he should be awarded the protections offered to others similarly situated. There is no question that Mr. Snowden’s release of classified information was—and continues to be--a serious violation of espionage and other important laws critical to our national security. However, as the Times suggested in its editorial, as Americans, we all stand to benefit from the knowledge of the abuses of power that Mr. Snowden has exposed.
The contrast of the two court decisions is both striking and fascinating. The decision issued first was the case brought by professional litigator Larry Klayman (Klayman et al., v. Obama et al, CA No. 13-0851, issued December 16th, 2013 by the DC Circuit . The opinion in the second case that was brought by the American Civil Liberties Union (ACLU) v. James Clapper, Director of National Intelligence (among others) was decided by the U.S. District Court for the Southern District of New York. There are three primary issues where the ruling judges decided three critical issues in very different ways. With respect to the actual intelligence value of the NSA’s telephone metadata program, the issues of privacy, and finally at least some Constitutional questions, the decisions reflect vastly different opinions and perspectives, not unlike those you might find at any water cooler anywhere in the U.S.
I. Actual Intelligence Value
Although” jusitification” may not be the best word to describe the NSA’s actions with respect to the collection of gargantuan quantities of information regarding who communicates with whom, the duration of those calls and other both content and non-content based information, the most recent court decisions take nearly opposite positions. In the ACLU case, Judge Pauley wrote that particularly with respect to one of the 9/11 hijackers about whom the FBI had bad information, “telephony metadata would have furnished the missing information and might have permitted the N.S.A. to notify the Federal Bureau of Investigation of the fact that [subsequent hijacker Khalid] al-Mihdhar was calling the Yemeni safe house from inside the United States.” In the Klayman case, Judge Leon determined that the government hadn’t made a sufficiently strong case that such data collection was or is necessary to protect the nation. He wrote “The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.”
The Presidential Review Group took a position somewhere near the middle. In its report, it concluded that N.S.A. staffers believe that “on at least a few occasions” the program “contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world.” Further in its report, the Review Group went so far as to suggest that the N.S.A.’s program “was not essential to preventing attacks.” Hardly a ringing endorsement of the costs of deploying such a program, but not quite as harsh as Judge’s Leon’s position.
II. Privacy and Constitutional Questions
The issue of privacy is tightly tied to the Constitutional issues as well. Both Judges Leon and Pauley reached back to the Supreme Court’s 1979 Supreme Court decision of Smith v. Maryland, 442 U.S. 735 (1979) . The judges’ conclusions, not surprisingly, were quite different. In Smith, the Supreme Court concluded that a robbery suspect had no reasonable expectation of privacy with respect to the numbers dialed from his phone. Relying upon this decision, Judge Leon determined that the Smith ruling has been undermined by subsequent decisions, thus requiring new examination and analysis of current legal applications of the Fourth Amendment’s prohibition of unreasonable searches and seizures. In contrast, in the ACLU case, Judge Pauley wrote that the Smith opinion remained the law of the land, by stating clearly ”that an individual has no legitimate expectation of privacy in information provided to third parties.”
As often comes up in these commentaries, this issue of the current interpretation of the Fourth Amendment with respect to N.S.A. activities is yet another instance where technology and the law have been evolving both at different paces and with different trajectories. I’m hardly psychic, but this is an area where the Supreme Court is likely to see a great deal of passionate and compelling arguments on both sides in current and subsequent sessions.
And then, of course, remain the issues of telephone metadata (as a result of the Klayman case, information gathered from Larry Klayman’s Verizon Wireless phone and that of one (of four) of his co-plaintiffs will be destroyed, and subsequent call information will not be gathered) and Edward Snowden’s fate. Regardless of your opinion on the N.S.A.’s activities and Edward Snowden’s release of classified materials, Margot Channing, the character played by Bette Davis in “All About Eve” may have put it best when she said, “Fasten your seatbelts, it’s going to be a bumpy night.“