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NSA Surveillance of Communications Metadata Violates Privacy Rights

Electronic communications are the modern equivalent of private papers, which the government cannot simply sweep up en masse. The outcome of this case will likely have tremendous implications for privacy rights in the digital age.

November 5, 2015

Federal Govern­ment Approach to Metadata Privacy Incom­pat­ible with Digital Age, Argues Brief

The National Secur­ity Agency’s system­atic surveil­lance and collec­tion of commu­nic­a­tions metadata — such as phone numbers dialed and call dura­tions — viol­ates the Fourth Amend­ment right to privacy, the Bren­nan Center for Justice argued today in an amicus brief filed with the U.S. Court of Appeals for the Ninth Circuit.

The case, United States v. Moalin, involves four indi­vidu­als convicted in San Diego on terror­ism finan­cing charges. Follow­ing the revel­a­tions from NSA whis­tleblower Edward Snowden in 2013, it came to light that the invest­ig­a­tion of defend­ant Basaaly Moalin was a product of the NSA’s phone metadata surveil­lance program under Section 215 of the Patriot Act. Indeed, Moalin is the only example iden­ti­fied by the govern­ment where the NSA’s bulk collec­tion program was used in a terror­ism prosec­u­tion — a fact that was not disclosed to the defense at trial. Moal­in’s attor­neys are now appeal­ing the case in the Ninth Circuit, arguing his consti­tu­tional and stat­utory rights were viol­ated by the NSA’s Section 215 surveil­lance.

“This is the first and only known crim­inal case involving the NSA’s bulk surveil­lance of Amer­ic­ans’ phone records, but the outcome is likely to have tremend­ous implic­a­tions for privacy rights in the digital age,” said Michael Price, coun­sel in the Bren­nan Center’s Liberty and National Secur­ity Program. “We are urging the court to recog­nize that elec­tronic commu­nic­a­tions are the modern equi­val­ent of private papers, which the govern­ment cannot simply sweep up en masse.”

The federal govern­ment asserts there is no Fourth Amend­ment interest in commu­nic­a­tions metadata, like that collec­ted through the NSA’s drag­net surveil­lance programs, because it is “volun­tar­ily conveyed” to third parties — and there­fore does not require a search or seizure warrant under the “third-party doctrine.”

The Bren­nan Center’s brief says this approach is incom­pat­ible with the digital age.

“System­atic surveil­lance that subverts First Amend­ment values is exactly what the Framers of the Fourth Amend­ment abhorred,” the brief states. “The third-party doctrine [] may have been appro­pri­ate for phone calls in 1979, but it is a poor match for the digital age and the sweep­ing surveil­lance programs oper­ated by the NSA.”

The Center filed its brief with the Elec­tronic Privacy Inform­a­tion Center, the National Asso­ci­ation of Crim­inal Defense Lawyers, the Amer­ican Library Asso­ci­ation, the Free­dom to Read Found­a­tion, the Report­ers’ Commit­tee for Free­dom of the Press, and the Ninth Circuit Federal and Community Defend­ers.

Read the brief here. Read more about the case here.