On December 27, ruling in American Civil Liberties Union v Clapper, No. 13 Civ. 9334 (S.D.N.Y. Dec. 27, 2013), federal district Judge William H. Pauley III granted the government’s motion to dismiss a complaint brought by the ACLU challenging the constitutionality of the NSA’s bulk collection of telephone metadata. Telephone metadata consists of the record maintained by a phone company of “when, and to what telephone number [a] call was placed, and how long it lasted.” The ACLU filed its complaint following the leaks by former NSA contractor Edward Snowden and the public disclosure of the formerly secret NSA program.
In upholding the NSA’s collection of this data, Judge’s Pauley’s New York decision is contrary to the opinion of District of Columbia district court Judge Richard Leon in Klayman v Obama, No. 13-0851 (D.D.C. Dec. 16, 2013), ECF No. 48. In Klayman, the District of Columbia court ruled against the constitutionality of the NSA program. (See our prior blog post here.) However, because the District of Columbia and the Southern District of New York are separate federal jurisdictions, the Clapper decision has no direct effect on the Klayman order in the District of Columbia.
In the Clapper decision, Judge Pauley characterized the NSA telephone metadata collection program as a rational response to intelligence failures related to September 11, calling it an intelligence “counter-measure” and “a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.” Emphasizing the purported importance of the NSA program for national security purposes, the court quoted Justice Jackson’s famous dictum in Terminiello v. City of Chicago that “the Bill of Rights is not a suicide-pact.” Characterizing the NSA metadata collection as the subject of “extensive oversight by all three branches of government,” the court pointed out that, prior to its reauthorization in 2010, all members of Congress had (classified) notice that section 215 of the USA PATRIOT Act was used to obtain orders by which “substantially all of the telephone calls” handled by telecommunications providers would be disclosed to the government.
Clapper rejected the ACLU’s argument that the bulk collection of metadata would have an unconstitutional “chilling effect” on First Amendment-protected free speech interests. The court quoted prior case law to characterize the ACLU’s position as relying on a “highly attenuated chain of possibilities.”
The Clapper court also rejected the ACLU’s constitutional challenge to the NSA program under the Fourth Amendment. Judge Pauley cited the U.S. Supreme Court case of Smith v Maryland, 442 US. 735 (1979), for the proposition that “an individual has no legitimate expectation of privacy in information provided to third parties.” Because the telephone metadata collected by the NSA is data disclosed by the plaintiff to a third party – namely, the telephone company – the court held that it is not subject to Fourth Amendment protection.
“The ACLU’s pleading reveals a fundamental misapprehension about ownership of telephony metadata,” the court wrote. Because the telephone metadata records in question “are created and maintained by the telecommunications provider” instead of the customer, wrote the court, those metadata records should not be characterized as the “Plaintiffs’ call records” in any sense that would imply ownership of – or a Constitutionally-protected privacy interest in – those records by the Plaintiff. “Under the Constitution, . . . when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information,” wrote the court. Finding that the metadata is constitutionally unprotected, the court additionally held that there can be no further constitutional issue with respect to NSA searches of that information. The court also rejected the argument that the volume of official data collection should alter the legal analysis, writing that the “collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” 
Written by Michael Young, Associate, Technology and Privacy Group | Alston & Bird LLP
 Memorandum and Order, American Civil Liberties Union v Clapper, No. 13 Civ. 9334, at *2 (S.D.N.Y. Dec. 27, 2013).
 Id. at *51, quoting Terminiello v. City of Chicago, 337 U.S. 1 (1949).
 Memorandum and Order, American Civil Liberties Union v Clapper, No. 13 Civ. 9334, at *6 (S.D.N.Y. Dec. 27, 2013).
 Id. at *29-30.
 Id. at *45.
 Id. at *47, quoting Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 1148 (2013).
 Memorandum and Order, American Civil Liberties Union v Clapper, No. 13 Civ. 9334, at *39 (S.D.N.Y. Dec. 27, 2013) (calling this Smith’s “bedrock holding.”)
 Id. at *42-44.
 Id. at *42.