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.