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.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.
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.
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 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 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 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."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.
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 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.