DOJ Argues No One Has Standing To Challenge Metadata Collection Even As It Says Govt Can Legally Collect Everyone's

from the no-expectation-of-privacy-and-no-right-to-sue dept

Privacy activists EPIC have taken a novel approach to challenging the bulk records collections. Rather than work its way up through the circuit courts, it has appealed to the Supreme Court directly, asking it to find that the NSA has exceeded its authority by collecting data on American citizens.

Like the ACLU, EPIC is a Verizon customer. Both have used the first of Snowden’s leaks to pursue lawsuits against the intelligence agency. But EPIC’s is the first to attempt to initiate proceedings in the nation’s highest court.

Arguing that no lower court would have the authority to rule upon the legality of that FISC order, EPIC took its plea directly to the Supreme Court. Its filing in July asked the Court to rule that the FIS Court has wrongly claimed authority for its global data-gathering under a 2001 federal law. That law gave the FIS tribunal the power to issue electronic surveillance orders to produce “tangible things” during an investigation of potential threats to national security.

EPIC asked the Supreme Court either to vacate the FIS Court order to Verizon or to bar its further enforcement, contending that the compelled “production of millions of domestic telephone records . . . cannot plausibly be relevant to an authorized investigation” of potential terrorist activities.

The government has filed a brief arguing that EPIC’s complaint should be routed through lower courts first. The government’s rebuttal leans heavily on procedural arguments, first pointing out that only the federal government itself or the entity receiving the FISC orders can challenge these orders. In addition, the government points out that the law creating the FISA Court does not provide protection to third parties like EPIC.

It also argues (as it has successfully in the past) that EPIC can’t prove it has suffered harm from the collection of its phone data.

Further, the government contended, EPIC has not offered proof that it could satisfy the requirements of the Constitution’s Article III as a party with a specific claim to an injury as a result of government action.

Notably, the government isn’t arguing that EPIC can’t prove its metadata was obtained. Snowden’s first leak eliminated that issue. Instead, it’s arguing that no citizen or entity other that the entity the records were obtained from has standing to sue or otherwise challenge FISA court orders.

But the government has gone even further, playing both sides of the issue in order to both continue to acquire the bulk records and prevent anyone from challenging the collection. The government wants to enjoy all of the benefits of the bulk collection without suffering from any of the drawbacks. So far, this has paid off. Its arguments are inconsistent (to put it mildly), and a recent court case involving a convicted terrorist may test the limits of its arguments.

Seven months after his conviction, Basaaly Moalin’s defense attorney moved for a new trial (PDF), arguing that evidence collected about him under the government’s recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. Moalin’s is the only thwarted “terrorist plot” against America that the government says also “critically” relied on the National Security Agency phone surveillance program, conducted under Section 215 of the Patriot Act.

The government’s response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person’s information without a warrant, it can monitor everyone’s information, “regardless of the collection’s expanse.” Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court.

The court (well, the FISA court) has agreed with this as well, at least part of it. It has stated that rights do not suddenly appear because a collection that is deemed legal for one person (like phone metadata) is used to collect data on several people.

The government’s opposition to a new trial relies heavily on a recently declassified opinion from the Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”

But that same argument should work against the government’s claim that no single person or entity (other than the company handing over the data) has standing, especially in this case. Just as certainly as rights do not “spring into existence,” standing doesn’t suddenly disappear because the collection is untargeted. If the government can use the argument that a collection of millions of records is no more illegal than the collection of a single person’s records, then it would seem reasonable that every person who “provides” these collectible records to third parties would have standing to challenge these disclosures.

What the government is doing in Moalin’s case is highly hypocritical.

The government has always argued that there’s no reasonable expectation to privacy in information handed to a third party like your phone or Internet provider, commonly referred to as the “third-party doctrine.” But [EFF staff attorney Hanni] Fakhoury says that in this case, the government is taking an even more aggressive stance. In essence, its argument is that “these records aren’t even Moalin’s to begin with so he can’t complain.”

Fakhoury disagrees “with the idea that the user has no standing to challenge the use of evidence that says something about him” and thinks the government undermines its own argument about who has standing to contest the evidence. “[T]hey want to use the phone records to prove a fact about Moalin but then claim that these records aren’t his.”

The government needs this win very badly as it’s using Moalin’s case to prove the necessity of the 215 bulk records collections. But it wants to do so by arguing that someone who can assert they’ve suffered direct harm from this collection (Moalin is in jail, after all) doesn’t have standing.

The government wants an unchallenged bulk collection and is throwing down every argument it can in order to head off possible challenges, either to the collection itself or to the evidence it provides. The end result is a very thorough abuse of the Third Party Doctrine that, so far, has allowed intelligence agencies to reap all the benefits and suffer none of the consequences. If the government wants to argue that collecting from everyone is no different than collecting one person’s records, then it shouldn’t be able to turn around and claim no one has standing to challenge the collected data — either as evidence or the constitutionality of the collection.

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Comments on “DOJ Argues No One Has Standing To Challenge Metadata Collection Even As It Says Govt Can Legally Collect Everyone's”

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James Burkhardt (profile) says:

If I remember correctly, back when the SCOTUS denied the ACLU’s last lawsuit against phone call collections, the SCOTUS was very sceptical that the government was arguing that no one would ever have standing to challenge this collection, and the government argued that they would reveal if and when the data was used and then you could have standing.

Now they are arguing that no one has standing (except for a company with no reason to challenge the collection). The government has a big reason to not want this case to touch the SCOTUS, as lying to the SCOTUS should be far worse then what prenda is facing for only lying to a district judge….

Anonymous Coward says:

Re: Re:

? as lying to the SCOTUS should be far worse

Dude, come off it. Be real.

? DNI Clapper faces no consequences at all for making an untruthful statement, under oath, to the Senate Intelligence Committee.

? General Alexander faces no consequences at all for repeatedly telling stories in Congress, even after Senator Leahy got him to admit those stories weren’t true.

In short, there’s a track record here, and at this point, it doesn’t take a great deal of foresight to predict what happens when these people get caught after saying things that just ain’t so. The get caught, and then nothing happens at all!

That One Guy (profile) says:

Re: Re: Re:3 Re:

If memory serves he actually said pretty much just that post 9/11, saying that he wouldn’t have to do a thing afterwards, that the US would destroy itself.

Sadly such a prediction has proven to be all too accurate, by his orders he killed a few hundred people, but it’s been the US government that’s killed, or at least done their best to kill, all the things that made the country great and to be admired.

Anonymous Coward says:

No harm?

Seems like having to leave your cell phone at home, so you cannot be tracked on your way to a meeting that is only taking place in person because you cannot discuss your legal case against the government using email,SMS, fax,video conference,Skype,instant messaging,telephone, etc because opposing counsel is spying on everything you do is rather harmful.

Disgusted says:

The only outfit with NO standing is the US Government. The citizens of this fair country hold ALL of the standing. The Government has routinely and repeatedly violated their Oaths of Office, and the US Constitution, with impunity. That has to stop.

One also has to realize that the DOJ, in general, is one ginormous organization who’s sole purpose is the protection and perpetuation of the DOJ, including all of the 3-letter groups attached to it.

corwin155 (profile) says:


When you have top secret Laws making everyone born in the USA a criminal and secret top secret courts rubber stamping any and all things under the guise of top secret matter of national security.
NSA and the CIA as matter of national security make everyone in the USA a terrorist as we all know now can and will assassinate anyone deemed a terrorist.
your already a criminal in eyes of FISA secret court because your not aloud to have a lawyer present.

Mark Alger (user link) says:

No Standing?

I’m sorry. No standing? Doesn’t every one of We the People have standing for violations of constitutional rights? The argument that only the fiduciary which surrendered information not its own to the government has standing is laughable. The information — the person, papers, and effects — belongs to the individual citizen and the government must present a warrant for each and every individual’s records, meeting the specifications in the Fourth Amendment.

How reasonable is it for the government to be ruling on limitations on its own power?


Tom Gallagher (user link) says:


Don’t forget that the DOJ is part of the Executive Branch and under this administration has a history of screwing individuals to support big business and government. Hint: check out those amicus briefs filed with SCOTUS and which side they are on. Our president could easily direct the DOJ to take positions that are friendlier to citizens rather than business and government.

Jerrymiah (profile) says:

DOJ Argues No One Has Standing To Challenge Metadata Collection Even As It Says Govt Can Legally Collect Everyone's

One thing I have noticed throughout the summer is that all the decisions made by the DOJ. Strangely, the name of the DOJ person initiating all of this was never mentioned. Well since Eric Holder is the US AG, he is the one doing all of this work for Obama. He is the equivalent of What Heinrich Himmler was to Adolf Hitler, trying to setup the American Fifth Column.

Cowards Anonymous says:

Fakhoury disagrees “with the idea that the user has no standing to challenge the use of evidence that says something about him” and thinks the government undermines its own argument about who has standing to contest the evidence. “[T]hey want to use the phone records to prove a fact about Moalin but then claim that these records aren’t his.”

According to the DOJ:
AT&T owns your phone records as a third party service provider. As the owner, it’s AT&T’s data to do with as they please. AT&T can then fabricate records showing that a political opponent is in regular contact with terrorist groups. AT&T gives those fabricated records to the NSA. The DOJ charges that political opponent with aiding a terrorist organization.

Because the political opponent doesn’t own the records, he has no standing to contest them being used as “evidence” in his trial. He can’t even view the “evidence” as it is classified information. Goodbye fair trial where you get to cross-examine the “evidence” used in your conviction. Only if AT&T contests the use of it’s manufactured evidence in court would there be standing to object, and only by AT&T.

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