Has the Privacy Pendulum Begun its Return Swing? Courts and Corporations push back on the NSA's surveillance program.

Privacy has taken a beating on the national stage in light of Edward Snowden's initial revelations in May and the steady stream of new disclosures of alleged infringements of Americans' right to privacy made by the National Security Agency ("NSA").  Not only did the government seem to be reaching further and further into people's personal communications in the name of national security, but they brought some of our country's biggest companies into the effort as well, many times unwillingly or unknowingly.  Indeed, the pendulum swinging between the right of the individual citizen and government's interest in the larger society's security seemed ready to break on the side of security over individual privacy.  This past week, however, two interesting events transpired, which prompted me to ask if the privacy pendulum is finally swinging back?  It may be, as both the courts and corporations are pushing back on the NSA program.

1.  Courts. On December 16, 2013, a federal judge ruled the NSA's bulk collection of telephone records likely violates the Fourth Amendment of the United States Constitution as an unreasonable search.  In a sixty-eight page opinion granting a preliminary injunction against an NSA surveillance program, U.S. District Court Judge Richard Leon dealt what many are calling the opening blow for challenging the legality of the surveillance program.  Judge Leon also stayed his decision pending the anticipated appeal from the U.S. government.  Most observers, including me, believe this issue will ultimately find its way before the Supreme Court of the United States.

The case ultimately came before Judge Leon as a result of a motion by Larry Klayman and others, who challenged the surveillance program's collection of metadata tied to electronic communications, such as telephone calls, text messages and emails.  The U.S. government, including the President, as well as private companies was sued for "statutorial and constitutional violations."  Where the program ran afoul of the Fourth Amendment's protections, according to the judge, is that the NSA program "allows searches to be conducted indiscriminately and without regard to their connections with a crime under investigation."  He also called the program an "arbitrary invasion."  He went on to say, "Indeed I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast."

An unconstitutional haystack? In efforts to explain the reasonability of the program(s), the NSA and many of its supporters have sometimes used the image of a large haystack being continually grown with information, in which people's telephone calls or emails are piled up, much like strands of hay.  Now, this haystack is never inspected nor reviewed until a potential threat to national security presents itself.  With knowledge of that threat, the NSA can then comb the haystack to find the needles, in the form of telephone numbers or emails which are tied to this potential threat.  Perhaps the bad guy in question made telephone calls or sent messages using one of these numbers or addresses in the haystack?  Without the haystack, they say, there would be no way to make the connections using real-time data, at least not in enough time to prevent the threat from materializing.  In essence, you must first build the haystack and store it indefinitely for the time when a needle might need to be found.  In the NSA's case, the haystack is in Utah in a large data center and continues to grow.

Generally, under the Fourth Amendment, a person has a reasonable expectation of privacy against unreasonable searches by the government.  To be reasonable under the Fourth Amendment, the search must be based on an individualized suspicion of wrong doing.  Current case law has provided exceptions to this general rule, and in the Klayman case, Judge Leon says the government has not shown that its action meet any of these exceptions to render their search reasonable.  Where the judge says the NSA potentially exceeds the boundaries of the Fourth Amendment exceptions is when it compiles this data without any semblance of probable cause. Thus, he opines that the Plaintiffs have a "very significant expectation of privacy in aggregated collection of their telephony metadata covering the last five years, and the NSA's Bulk Telephone Metadata Program significantly intrudes on that expectation.  Whether the program violates the Fourth Amendment will therefore turn on 'the nature and immediacy of the government's concerns and the efficiency of the [search] in meeting them.'"  In short, compiling data on people indefinitely for a threat that may or may not materialize is arbitrary and fails to qualify as a reasonable search.  The judge, in his decision, went on to say that the government has failed to even cite “a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.”

2.  Corporations. Also, in both an open letter to the President and a meeting at the White House, many of our country's largest data and Internet service companies have asked the President for reform in our nation's surveillance programs.  Weary of both the legal and reputational hits their respective organizations are taking here and abroad, the leaders of companies like Yahoo!, Google and Microsoft are pushing back.  Google and Microsoft filed motions before the Foreign Intelligence Surveillance Court to enable them to disclose the nature of the orders they have been issued by the NSA under the Foreign Intelligence Surveillance Act ("FISA"), which authorizes warrantless searches for the purposes of national security.  Yahoo! has likewise sought to disclose documents showing its resistance to similar orders from the  NSA.  As any good business that understands the value of privacy, and as we have blogged about here before, perhaps these companies are seeking to be transparent as to their information practices, even those forced upon them by government order.  In the end, possibly they recognize the value of privacy is more than the safeguarding of information, it is a trust-based relationship-whether with the individual consumer or the country in which those consumers reside.

Again, these may be but the first real volleys in the legal and business related battles over privacy and the NSA surveillance program.   Maybe these developments do nothing to change the current trend, but, at a minimum,  they represent the important need for balance in any debate about constitutional freedoms.  I think it also shows the privacy pendulum may be swinging back, maybe just a little.  Bring on round two….

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Scot Ganow |