Collection of Metadata -- as Done by the NSA -- Likely Unconstitutional, US Court Suggests

A post-9/11 program that enabled the mass collection of telephone, cellular, and text metadata by the US National Security Agency (NSA) likely violated the constitution, a three-judge panel of the US Appeals Court for the Ninth Circuit concluded in a ruling on Sept. 2.

The ruling involved an appeal by the attorneys representing four Somali immigrants to the United States convicted in February 2013 of providing financial aid to terrorists, based on the argument that the investigators used data collected from the NSA program as reason to wiretap and investigate the men. While the opinion denied the defendants a new trial, the judges concluded that the collection of metadata on millions of Americans is a substantially different proposition compared with limited requests for dialed phone numbers, which had legally been allowed without a warrant under previous precedents.

The conclusion will make future attempts to revive such a program that much more difficult, says Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, a digital rights group. 

"The opinion gets as close to saying it violated the Fourth Amendment as an opinion can possibly get without actually deciding it," he says. "It gives very clear notice to the government, to the NSA, [and] to any Congress considering reauthorizing a program like this, that this program likely violated the Fourth Amendment."

The ruling is the latest strike against attempts by law enforcement and the intelligence community to use technology to create a more powerful surveillance capability to find likely criminals, spies, and terrorists. The "call-detail records program," as it is often referred to, had been greatly limited by the passage of the USA Freedom Act in 2015 and then failed to become reauthorized by Congress by the end of last year, as a majority of members of Congress no longer supported the program.

"After speaking with intelligence and law-enforcement officials, it's become clear that changes to the program under the USA Freedom Act have significantly weakened its usefulness," Sen. Richard Burr, R-NC, and chairman of the Senate Intelligence Committee, told the Wall Street Journal in December. "In its current incarnation, the [call-detail record] program simply doesn't provide enough value to justify jeopardizing other critical intelligence tools."

Until the end of last year, Burr had pushed to reauthorized the program.

The federal appeals case centered around the investigation into, and prosecution of, four Somali immigrants convicted of providing material and financial support to the Somali group, al-Shabaab, or "the youth," in Arabic, which used improvised explosive devices and suicide bombings to kill Somali civilians and Ethiopian military forces that supported the transitional federal government in the country. The four men provided more than $10,000 in aid to the group using informal money transfer businesses, known as "hawalas," the appeals court stated in its recitation of findings from the original case.

The US government prosecuted the four men, after originally halting their investigation due to lack of evidence, based mainly on the leads discovered through the call-details records program, according to comments made by Sean Joyce, the deputy director of the FBI in 2013, to Congress. "[I]f [the FBI] did not have the tip from NSA, [it] would not have been able to reopen that investigation," he told Congress according to the appeals-court opinion — later specifically naming the primary defendant.

The records collected included "information such as the phone numbers involved in a call and the time and duration of the call, but not the voice content of any call," the opinion stated.

The appeals court argued that the technology has changed so much and has become so pervasive that the mass collection of metadata provides so much context that any such program rises to the level of mass surveillance. In the past, if a third party had access to information, the citizen was assumed to have given up any reasonable expectation of privacy, a key Fourth Amendment hurdle.

"Advances in technology since 1979 have enabled the government to collect and analyze information about its citizens on an unprecedented scale," the three-judge panel declared. "Confronting these changes, and recognizing that a 'central aim' of the Fourth Amendment was 'to place obstacles in the way of a too permeating police surveillance,' the Supreme Court recently declined to 'extend' the third-party doctrine to information whose collection was enabled by new technology."

The NSA call-details record program is one of the many such classified programs leaked by former government contractor Edward Snowden in 2013. The attorneys for the defendants began the appeals process after details of the programs became public.

The appeals court opinion shows the impact that the Snowden leaks have had on whether mass surveillance is justified, says EFF's Rumold.

"It confirms that one of the programs he blew the whistle on was illegal and unconstitutional," he says. "Courts are becoming increasing open to the idea that the mass collection of data and mass searching of data by law enforcement has different implications for our constitutional rights and free expression than specific targeted searches."

In the end, however, the appeals court determined that the violation of the law, and the probable unconstitutionality of the program, did not warrant suppression of the evidence collected by investigators, as that evidence was not specifically "fruit of the poisonous tree." And, because the Fourth Amendment issue did not have a material impact on the ruling, the three-judge panel did not specifically rule on whether the NSA program violated the Constitution.

"For all these reasons, defendants' Fourth Amendment argument has considerable force," they wrote. "But we do not come to rest as to whether the discontinued metadata program violated the Fourth Amendment because even if it did, suppression would not be warranted on the facts of this case."