Technology, privacy and the NSA: is it time for the Supreme Court to rule?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment – US Constitution


The Fourth amendment has long been held as the citizens’ shield against the intrusion of the government into their private affairs. For so long, it has been effective in doing what it was designed to do. Over the years, political and technological changes created grey areas for Fourth Amendment law. So far, the legal system has been able to resolve some of these areas. Cases like United States v. Jones, 132 S. Ct. 945 (2012) (Jones) and Smith v. Maryland, 442 U.S. 735 (1979) (Smith) were two of the defining cases in settling Fourth Amendment related issues with regards to technology use by the government.

This law has many implications on many services that people use in everyday life: mobile phones, e-Mail, cloud storage…etc. However, recent years have seen technology evolve at a very rapid pace. Legal, privacy and technology experts have been calling for clarity on how the law can be applied to these technologies even before the NSA leaks by Edward Snowden. There have been different suggestions for framework to resolve some of this ambiguity (See Urquhart, 2010 and Digital Due Process).

As unfortunate as the NSA leaks are, they might have created an opportunity for the legal system to finally resolve some of the fourth amendment issues. Since the NSA leaks came out, there have been several suits filed against the U.S. Government violations of constitutional rights. In December 2013, two cases were ruled on at District Court levels that sent alarming signals to users, businesses, and legal experts. Both cases used similar rationales and references to reach contrasting conclusions. We explore these two cases below and discuss what might come out next.

Klayman v. Obama

The first case, Klayman v. Obama No. 13-085 the plaintiff brought suit against the NSA claiming that the bulk collection of metadata– phone numbers, time, date, and recipient of the call– is being collected and the government is receiving this data from the telecommunications companies. The District Court relied heavily on distinguishing the circumstances applied in Smith, and in with consideration of the Supreme Court’s recent decision in Jones which held that the warrantless installation of a GPS device on a person’s car was an unreasonable search.

In Smith, the Supreme Court held that the collection of metadata by installing a pen register, without a warrant, was not a search because one does not have a reasonable expectation of privacy to data that is voluntarily given to a third party. However, the District Court distinguishes this case from the present case by establishing the extent of the data collection and emphasizes the exponential evolution of cell phone use that was not considered as a factor in the Smith case. This leads the District Court to hold that the bulk metadata collection is indeed a search under the Fourth Amendment because plaintiffs have a reasonable expectation of privacy.

Furthermore the District Court argued that the plaintiff is likely to succeed on a claim that this bulk metadata collection is unreasonable because it fails of the efficacy prong of the reasonable expectation of privacy test. This test requires analysis for determining (1) “the nature of the privacy interest allegedly compromised” by the search, (2) “the character of the intrusion imposed” by the government, and (3) “the nature and immediacy of the government’s concerns and the efficacy of the [search] in meeting them.” Bd. of Educ. v. Earls, 536 U.S. 822, 830-34 (2002). The District Court supports this claim by emphasizing the lack of evidence produced by the government that the collection of this metadata actually thwarted any terrorist threat and that this data was not producing data more rapidly than conventional methods of investigation.

On January 3rd, the US government appealed.

ACLU vs. Clapper

A week after the NSA information was leaked by Snowden, the American Civil Liberties Union (ACLU) and its affiliates filed a suit against NSA director James Clapper and other government officials claiming violation of their first and fourth amendment rights by the NSA”s phone meta-data collection program. The plaintiffs were seeking declaratory and injunctive relief. On December 28th, 2013, the district court dismissed all claims.

Based on fourth amendment protection rights, ACLU’s claimed that the program invades their privacy by accessing phone records maintained by their service provider which constitutes unreasonable search and seizure. They argue that bulk analysis of this information can reveal privileged information about users (e.g. religious and political affiliations).

The court dismissed this argument because: (1) the government can only query the database with legal justification and within rigorous minimization procedures, (2) the query information only reveals information three “hops” away from the “seed”, and (3) the government cannot identify callers unless they used additional techniques.

ACLU also argued that the government can conduct the three-hop analysis of phone records without having to build its own database. The court dismissed this argument too citing that the Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” City of Ontario. CaL v. Quon, 130 S .. Ct. 2619,2632 (2010)

In the motion for a preliminary injunction, the plaintiffs were seeking to bar the government for collecting bulk data about them, quarantine their data held by the government, and prohibit the government from querying phone data using any identifiers associated with them.
Citing Smith, the court ruled that the data was conveyed voluntarily by the plaintiffs to a third party, Verizon, which creates and maintains those records. Thus, the plaintiffs have forfeited their right to privacy of this information. Furthermore, the court likened phone-data queries to fingerprint or DNA searches by law enforcement agencies which are not valuable without taking additional steps to identify individuals (See Maryland v. King, 133 S. Ct. 1958). The court stated that collecting massive amount of data that is unprotected by the Fourth Amendment doesn’t transform it into a search under the Fourth Amendment.

In relying on Smith, the court disagreed with ACLU’s reliance on Jones because the Supreme Court did not overrule Smith. The court viewed Smith as precedence in this case because: (1) even though people’s relationships with their phones have evolved, their relationships with their service providers have not, (2) the case here is concerned with the use of phones as only telephones, and (3) the type of information captured by the program has not changed. Thus, the court concluded that the NSA program does not violate the Fourth Amendment.

On January 2nd, ACLU appealed in the Second Circuit Court of Appeals.

Implications: Confusion!

The contrasting opinions in the two cases have created confusion among the public. On one hand, Klayman was ruled in favor of the plaintiffs against the government while Clapper was in favor of the government.

The first decision ruled that a government run program is “Orwellian” and probably “illegal”. What will government do now? Can the information acquired through this program be used as evidence in courts against citizens? Should the government stop the program?

The 2nd decision throws into the question the privacy of all users’ data held by third parties. This would apply to data from phone records to files stored in the cloud. The confusion about user privacy is also of great concern to service providers who could be treading on fine lines when dealing with government requests for access user data. How should service providers respond to any future requests for access? The Snowden leaks show that NSA programs didn’t stop at phone data. How would the courts rule against such programs?

Will the Supreme Court Intervene?

Since the Supreme Court generally only reviews 70-100 cases a year with about 10,000 appeals requesting review, it is important to consider the factors that would escalate the issue in the present case to be important enough for the Supreme Court to grant certiorari (agree to hear the case). According to Diana Hess and Louis Ganzler (1996/2006/2011), the Supreme Court is likely to grant in cases which 1) there is a split between different Circuit Courts; 2) are of great importance in regard to societal impact, substantial legal significance, and requires clarification; 3) areas of interest for the individual justices; and 4) egregious legal errors in the District Courts.
Since the issue has not reached the Circuit Courts yet, there is no Circuit split; however, if the decisions reached by the two Circuit Courts contradict, it is more likely that the Supreme Court will hear the case. Moreover, the revelations of NSA’s bulk metadata collection porgram has been elevated to a greater level of public concern because of the implication of potentially violating civil rights and thus more likely to be reviewed by the Supreme Court. Furthermore, since the decision in Klayman, distinguishes the scope of the Supreme Court’s decision in the present case, it may be considered an egregious error by the District Court in that it limited the Supreme Court’s decision.


As the District Court in Klayman illustrated, there are many other District Courts that have ruled and applied these similar issues with the same cases and ending up with a different result. Due to the large amount of civil rights implications, District Courts arriving at different decisions from the same standards and the grave important of the issue in terms of societal impact and legal significance, it is very likely the Supreme Court will grant review and decide these substantive issues. Moreover, the Supreme Court should clarify the legal parameters of the Fourth Amendment implications to determine whether or not this bulk collection of metadata is legal. If not, the debate over the NSA’s bulk collection is resolved. If so, however, the political institutions will be tasked with determining whether these policies are actually worth the potential civil rights implications. This important political debate, although started like debate on the Affordable Care Act, has not taken full fruition and the full weight of the ramifications will not be considered until the Supreme Court decides the substantive legal issue present in the NSA’s bulk collection of metadata.



By Hassan Jannah & Christos Christodoulou