SurveillanceJudges question claims that NSA metadata collection poses threat to ordinary citizens

A panel of three judges on the U.S. Court of Appeals for the District of Columbia challenged arguments made earlier this week by Larry Klayman, a conservative lawyer arguing on his own behalf, and Cindy Cohn, an attorney representing the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), that the National Security Agency’s (NSA) mass-surveillance program is a breach of the Fourth Amendment, which protects against unreasonable searches. “This is the most outrageous abuse of our liberties in history,” Klayman said in court. “This is what we fought the Revolution for…. If the courts don’t step in, we are going to be in the streets again.”

The NSA surveillance program allows the government to collect phone records or “metadata” from telephone companies including Verizon Wireless and AT&T. Supporters of the program say that while metadata includes the numbers, dates, and duration of calls made by an individual, it does not contain the content of conversations. Privacy advocates refute that argument claiming that the mass collection of metadata has the potential to be abused.

The case, Klayman v. Obama, is one of three currently at the appeals-court level regarding the NSA surveillance program. Government Executive reports that the U.S. Court of Appeals for the Second Circuit in New York held a review in September leaning towards the side of privacy advocates, but many legal analysts predict that the Supreme Court will make the final decision on the issue sometime next year- that is if Congress does not pass legislation that requires phone companies to keep metadata in their possession and only release it to the NSA after a warrant is issued by the Foreign Intelligence Surveillance Court.

In the D.C. Circuit Court of Appeals, Judges Stephen Williams and David Sentelle voiced skepticism about claims that collecting metadata posed a threat to ordinary citizens. Phone companies already store users’ records, the judges claimed. Klayman countered that “just collecting the data is enough to implicate the Fourth Amendment.”

The court then asked Klayman to describe how the NSA’s collection of metadata is any different from the government’s use of wiretaps to record numbers called from a tapped phone line. In the 1979 case, Smith v. Maryland, the Supreme Court ruled that installing pen registers (a wiretapping device) did not constitute a search within the meaning of the Fourth Amendment and so no warrant was required. The ruling also pointed out that the numbers tracked were already being recorded by the telephone company.

Cohn, representing the ACLU and EFF, said that the size of the NSA mass-surveillance program made it more intrusive than pen registers. “A difference in kind can come from a difference in scale,” Cohn said. “The aggregation gives a more intrusive look at someone’s life.”

In response, Sentelle asked Cohn, “Does a thousand times nothing still equal nothing?”