The Spy Who Got Taken to Court

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In the 2006 James Bond film Casino Royale, “M,” the leader of MI6, laments the end of the Cold War and its impact on the world of international espionage.  For the NSA, the spy business is alive and well, but the people it has been targeting have been the American people.  In response to details that have emerged about the NSA’s policy of analyzing telephone metadata, Senator Rand Paul has initiated a lawsuit on behalf of all those who have been users of phone service in the United States since 2006.  The government officials being sued in the case are President Obama, Director of National Intelligence James Clapper, and Keith Alexander and James Comey, directors of the NSA and the FBI, respectively.  This suit is based on legitimate concerns about the NSA intruding upon individuals’ privacy, but it might face great difficulty in meeting constitutional requirements.

Metadata is information generated by the use of a device—in this case, a telephone—and includes details about what the device is being used to do.  Some of the information collected by the NSA through metadata includes telephone numbers that are called by a phone, when a phone call took place, and the length of phone conversations.  The data that is examined does not link the telephone number to the person to whom it belongs; it only references other public records that an investigator could use to obtain additional information about the subject of the metadata search.  Additionally, metadata-only searches do not allow access to the contents of a telephone message.

Senator Paul is not in a unique position to bring suit on behalf of the American people.

Senator Paul’s class action suit likely faces problems when it comes to the question of whether he and the other plaintiffs have standing to bring the suit.  Standing is a constitutional requirement that seeks to ensure that the person who brings a lawsuit is in the best position to adequately represent the group’s interests.  Without standing, a lawsuit likely is over before it even begins; a court cannot hear a case in which the plaintiff does not have standing.  In order to have standing, a plaintiff must have sustained an injury that is unique from that suffered by other people.  The lawsuit (pdf) that Senator Paul has filed, however, states that the injury that the lawsuit is designed to remedy is that the NSA has conducted a “mass, suspicionless, non-particularized collection, storage, retention, and search of telephone metadata related to every domestic or international phone call made or received by plaintiffs.”  From this description of the motivating force behind Paul’s lawsuit, it is clear that the NSA’s activities involved collecting data from a high percentage of the American people.  The widespread nature of this injury, which impacted citizens’ data in the same way, makes it unclear why Senator Paul and the named plaintiffs should be considered the parties best able to bring a lawsuit against the NSA.

Another obstacle that Senator Paul’s lawsuit must overcome is the problem of determining who is a member of the “class,” the group of plaintiffs who are suing another party.  Paul stated that he did not define the class but that the government through their intrusive actions defined the class for him.  Without examining the data that the NSA has collected, a person cannot know if she falls into the class of people who have been impacted by the NSA’s policy.  In describing the lawsuit that he was bringing, Paul has called it “historic,” an apt description, as courts have never authorized a class action that has as its plaintiffs a majority of the American people.

Enforcing a Judgment in Paul’s favor would also impact citizens’ privacy.

Even if a court found that Senator Paul had proper standing to bring the suit, the class would face a difficult challenge of enforcing a judgment in the plaintiffs’ favor.  The lawsuit that Senator Paul has filed states that the relief it seeks from the court is that of declaring the program unconstitutional and preventing the NSA from continuing to carry it out.  If a court were to rule that the NSA has violated the privacy interests of citizens and that its metadata policy should cease, actually keeping them from doing so in the future would present problems.  This likely would involve appointing a group to oversee the NSA’s activities in order to make sure that it no longer violates citizens’ rights.  This solution, however, would involve allowing the outside body to have access to sensitive information about the NSA’s activities, which could compromise the NSA’s effectiveness and the security of the data it examines.

Many courts have found no expectation of privacy in this data, but not all courts agree.

One of the assertions that is made in defense of the NSA’s practices is that people have no expectation of privacy in the data that is scrutinized by the NSA.  The data that is analyzed by the NSA is readily given up as part and parcel of technological interaction among people.  In providing telephone service to citizens, phone companies have access to data that includes the telephone number that was used and when the calls were made.  This theory was first advanced by the Supreme Court in the 1979 case of Smith v. Maryland in which it was held that metadata searches were constitutional.  The idea is that people readily surrender this data to a third party, the telephone company, as part of the provision of phone service and therefore a person cannot complain when the data about her phone calls is analyzed by a third party, the NSA.

Even though as many as fifteen courts that have considered this matter have found no expectation of privacy in this data, courts across the nation are not completely unified in declaring these actions to be permissible under the Constitution.  A recent case in the United District Court for the District of Columbia, Klayman v. Obama, found these metadata searches to be unconstitutional.  Judge Richard Leon, in deciding the case, pointed out that the facts of Smith v. Maryland dealt with the collection of metadata by the police that was produced by the home phone owned by only one suspect.  Leon argued that the narrow scope of the police’s metadata search in Smith v. Maryland means that this case falls far short of establishing widespread permission for the collection of metadata by authorities.

Part of the consideration that courts undertake when dealing with a Fourth Amendment case involves determining whether a person has an expectation of privacy that has been invaded.  Courts look at this expectation of privacy from the individual’s viewpoint.  Most of the individuals who are parties to Senator Paul’s lawsuit likely expected that information about their phone calls would remain private and would not be subject to scrutiny by prying eyes.  Courts also look at the expectation of privacy objectively, asking whether the expectation of privacy at issue is one that society is prepared to say is reasonable.  What society finds to be reasonable from a constitutional standpoint, however, is largely determined by what the Supreme Court believes to be reasonable.  Judging by the public outcry that has arisen as details about the NSA’s data collection process have come out, it seems that many Americans would beg to differ with the Supreme Court’s assertion in Smith v. Maryland that a person does not have an expectation of privacy in the metadata that she produces.

Many Americans would beg to differ with the Supreme Court’s assertion that a person does not have an expectation of privacy in his metadata.

Since Paul filed his lawsuit, the Obama Administration and Congress have announced a series of possible reforms designed to curtail the NSA’s practices.  The White House plan is designed to make sure that “the government no longer collects or holds” the information gathered in the metadata analysis.  The House of Representatives’ proposal would stop the NSA from automatically collecting metadata, while working with the telephone companies who retain records of the metadata for eighteen months.  Neither plan is likely to entirely prevent the NSA from analyzing metadata because the Agency believes the process is essential to its function of protecting the public through information gathering.

Senator Paul’s lawsuit has at its core the noble goal of protecting the privacy of American citizens.  The way the case has been presented from a legal standpoint, however, means that it will most likely be unable to pass the difficult constitutional questions that must be overcome in order for it to be heard.  In the world of modern communications in which people are increasingly connected by technology, the line between what information is private and what information is easily accessible by the public is becoming increasingly difficult to draw.