Obama Administration Defends ‘Almost-Orwellian’ NSA in Federal Court

In his December 2013 opinion in
Klayman v. Obama, Judge Richard Leon of the U.S.
District Court for the District of Columbia ruled that the
“almost-Orwellian technology that enables the government to store
and analyze the phone metadata of every telephone user in the
United States” not only sounds like the stuff of dystopian science
fiction, it “almost certainly does violate a reasonable expectation
of privacy” under the Fourth Amendment. It was the first major
legal defeat for the NSA.

That ruling is now on appeal before the U.S.
Court of Appeals for the District of Columbia Circuit. On Monday
the Obama administration filed
its opening brief in the case. Unsurprisingly, that brief took
issue with Judge Leon on every point. “In light of the imperative
national-security interests the program serves and the numerous
privacy protections that the Foreign Intelligence Surveillance
Court has required the government to observe,” the government
maintained, “the program is reasonable under the Fourth
Amendment.”

The outcome of this dispute is likely to turn on the D.C.
Circuit’s interpretation of a 1979 Supreme Court decision known as

Smith v. Maryland. In that case, the Supreme Court
upheld the warrantless installation of a pen register on phone
company property by Baltimore police for the purposes of tracking
the phone calls made by a criminal suspect. According to the
Court’s ruling in Smith, “a person has no legitimate
expectation of privacy in information he voluntarily turns over to
third parties.”

The Obama administration believes that precedent offers more
than sufficient justification for the NSA’s Bulk Telephony Metadata
Program. “Under Smith,” the government argued in its
brief, “no caller has a reasonable expectation of privacy in the
telephone numbers he dials.”

Moreover, the government added, this challenge to the NSA owes
more to political paranoia than it does to any legitimate
constitutional concerns. “Plaintiffs’ asserted injuries are
entirely attributable to their subjective, speculative fear that
the government may, in some unspecified way, use any information
the government possesses about them against them,” the brief
declared. But “such amorphous fears are not a basis for challenging
a government intelligence-gathering program.”

Judge Leon’s 2013 decision, by contrast, argued that the NSA’s
controversial actions simply dwarf anything the courts have
previously seen from law enforcement. “When do present-day
circumstances—the evolutions in the Government’s surveillance
capabilities, citizens’ phone habits, and the relationship between
the NSA and telecom companies—become so thoroughly unlike those
considered by the Supreme Court thirty-four years ago that a
precedent like Smith simply does not apply? The answer,
unfortunately for the government,” Judge Leon declared, “is
now.”

The D.C. Circuit is expected to hear oral argument in
Klayman v. Obama later this year.