The United States Court of Appeals for the D.C. Circuit has denied a request to rehear a challenge to the National Security Agency’s bulk collection of metadata – i.e., telephone usage information but not the content of conversations. In a concise concurring opinion, Judge Brett Kavanaugh explains what I have covered here several times (often, in vain attempts to convince Senator Rand Paul of his folly): there is nothing unconstitutional about the government’s acquisition and storage of records that are the property of the telecommunications companies, not of the users of the service.
[T]he Government’s metadata collection program is entirely consistent with the Fourth Amendment. . . .
The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.
Even if the bulk collection of telephony metadata constitutes a search, . . . the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty. Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports. [Citations omitted.] . . . The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.
To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.
In sum, the Fourth Amendment does not bar the Government’s bulk collection of telephony metadata under this program. I therefore agree with this Court’s decision to stay the District Court’s injunction.
While the law has always been on our side, I conceded earlier this year that the national-security Right lost the public debate over metadata collection because government officials failed to illustrate a convincing connection between government access to this data and the detection/disruption of terror cells and plots. In the atmosphere of the time, the public’s justifiable distrust in government (see, e.g., Obama administration use of IRS to harass political opposition) could not be overcome by showing the program’s constitutional validity and internal checks against abuse (e.g., regular judicial and congressional oversight). That is why the extremely flawed USA Freedom Act was passed.
Obviously, our threat environment has become more perilous since then. It is welcome to have a straightforward, authoritative legal justification for the program. But, apart from its propriety, we still have to convince the public that the program is necessary.