Smith v. Obama et al

Filing 27

MEMORANDUM DECISION. The Court will grant the defendants' motion to dismiss and deny Smith's motion for injunctive relief. The Court will issue a separate Judgment as required by Rule 58(a). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANNA J. SMITH
Plaintiff,

Case No. 2:13-CV-257-BLW

v.

MEMORANDUM DECISION

BARACK OBAMA, President of the United
States, et al.,
Defendants.

INTRODUCTION
The Court has before it plaintiff Smith’s motion for injunctive relief and
defendants’ motion to dismiss. The Court heard oral argument on May 14, 2014, and
took the motions under advisement. For the reasons expressed below, the Court will
grant the defendants’ motion to dismiss and deny Smith’s motion for injunctive relief.
BACKGROUND
The Fourth Amendment protects the right of privacy by forbidding unreasonable
searches and seizures. With few exceptions, a citizen cannot be searched in violation of
her reasonable expectation of privacy unless a judge has found there is probable cause to
believe that she is committing a crime. This Fourth Amendment protection is violated
here, Smith alleges, because the National Security Administration (NSA) is searching her
telephone records without showing first that there is probable cause to believe she is
engaged in criminal behavior. She asks the Court to enjoin the NSA from collecting and
analyzing her telephone data.
Memorandum Decision – page 1

For more than seven years, the NSA has been collecting and analyzing the
telephone records of Americans to detect terrorist threats. While the agency does not
listen to conversations, or identify the callers’ names and addresses, it does collect the
telephone numbers of all parties to a call, along with the duration and time of that call,
and stores this data for five years.
The NSA’s collection and analysis protocols must be periodically approved by the
Foreign Intelligence Surveillance Court (FISC). The FISC prohibits the NSA from
accessing the stored telephone data for any purpose other than counterterrorism or
technical maintenance of the system. See Shea Declaration (Dkt. No. 15-2) at ¶ 31.
The NSA uses its vast trove of data to identify the telephone numbers of calls that
terrorists make and receive. Before the NSA can access its telephone data, the FISCapproved protocols require the agency to first make an internal finding – authorized by
one of twenty-two designated NSA officials – that a particular telephone number is
associated with a terrorist organization. Id. at ¶ 32.
Once the NSA makes its internal determination, it may run a query through its
data bank to collect (1) the telephone data of persons who made calls to – or received
calls from – the suspected terrorist, and (2) the telephone data of persons who made calls
to – or received calls from – the telephone numbers for any person who had direct
telephone contact with the suspected terrorist. Id. at ¶ 23. In prior years, the scope of the
query extended to a third level but “the NSA has taken immediate steps to implement
restrictions [imposed by the President] limiting its review of queries to two [levels] only

Memorandum Decision – page 2

and the Government is now working with the FISC to incorporate this restriction into the
FISC’s orders.” Id.
Smith alleges that her own telephone data has been swept up into the NSA’s broad
net in violation of her Fourth Amendment rights.1 She asks the Court to enjoin the
agency from collecting and using this telephone data from her calls.2
ANALYSIS
The Fourth Amendment is concerned with surveillance that (1) involves a
“trepassory intrusion on property” or (2) “violates a subjective expectation of privacy that
society recognizes as reasonable.” See U.S. v. Jones, 132 S.Ct. 945, 954-55 (Sotomayor,
J., concurring). It is the latter interest that Smith urges here. She claims that the NSA’s
collection efforts violate her expectation of privacy in her telephone records.
Smith has no expectation of privacy in the telephone numbers that she dials. See
Smith v Maryland, 442 U.S. 735 (1979). A person using the telephone “voluntarily
convey[s] numerical information to the telephone company” and “assume[s] the risk that
the company [will] reveal to police the numbers he dialed.” Id. at 744.
But the data collected by the NSA goes beyond the telephone numbers that Smith
dials, and reaches into her personal information. For example, the NSA’s collection of
1

Smith originally alleged additional claims but has conceded that they should be dismissed,
leaving only the Fourth Amendment claim for resolution.
2

The Court finds that Smith – a Verizon customer – has standing to bring this action. See
Klayman v. Obama, 957 F.Supp.2d 1, 26-28 (D.D.C.2013) (granting standing to individual plaintiffs to
challenge NSA collection of their telephone records from Verizon after finding “strong evidence” that
NSA has collected Verizon metadata for the last seven years and run queries that necessarily analyzed
that data).

Memorandum Decision – page 3

the time and duration of phone calls is revealing: Would most citizens want to keep
private the fact that they called someone at one in the morning and talked for an hour or
two?
And what about location? Would most phone users expect to keep private (1)
their location at any moment and (2) their travel path over time? The NSA collects
“trunk identifier” data, see Shea Declaration, supra at ¶ 15, that shows the location where
a cell-phone call enters the “trunk” system to be relayed eventually to the number being
called. See Leslie Groll, What Kind of Phone Data Can the NSA Collect Exactly?,
FOREIGN POLICY (June 6, 2013).3 While this would not pinpoint a phone user’s
precise location, it would narrow it down considerably. Id.4; see also State v. Earls, 70
A.3d 630, 637 (N.J.Sup.Ct. 2013) (holding that New Jersey’s constitution requires police
to obtain warrant before collecting cell phone location data and noting that carriers have
data that “can locate cell-phone users within buildings, and even within individual floors
and rooms within buildings”). Moreover, the data also includes “comprehensive
communications routing information.” See Shea Declaration, supra at ¶ 15. While this
phrase is ambiguous, it may mean that for a single call, all the trunk identifiers are
collected by the NSA, allowing the agency to track “how a cell phone user moves from

3

Available at
http://blog.foreignpolicy.com/posts/2013/06/06/what_kind_of_phone_data_can_the_nsa_collect_exactly
4

Trunk identifier data may be used to “locate a phone within approximately a square kilometer.”
Patrick Di Justo, What the N.S.A. Wants to Know About Your Calls, NEW YORKER (June 7, 2013),
http:// www.newyorker.com/online/blogs/elements/2013/06/what-the-nsa-wants-to-know-about-yourphone-calls.html.

Memorandum Decision – page 4

one cell phone tower to another while traveling.” FOREIGN POLICY, supra. The speed
with which the phone moves from tower to tower could indicate, for example, whether
the device is being used in a car or while walking down the street.
Compare these intrusions to those faced in Smith: There, the Baltimore police
collected the telephone numbers dialed by a suspected robber for about two days. This
simple comparison reveals a looming gulf between Smith and this case. But the Ninth
Circuit has bridged some of that chasm. In United States v. Reed, 575 F.3d 900 (9th Cir.
2009), the Circuit held that “there is no Fourth Amendment expectation of privacy” in
data that includes the number dialed along with the length and time of the call. Id. at 914.
The Circuit has also applied Smith in holding that e-mail and internet users have no
expectation of privacy in the “to/from addresses of e-mail messages, the IP addresses of
websites visited and the total amount of data transmitted to or from an account.” U.S. v.
Forrester, 512 F.3d 500, 510 (9th Cir. 2008). To the extent that an individual’s telephone
data collected by a cell-phone provider is no different than an individual’s power
consumption records collected by an electric utility, the Circuit has held that utility
customers lack a reasonable expectation of privacy in such business records. U.S. v.
Golden Valley Elec. Ass’n, 689 F.3d 1108, 1116 (9th Cir.2012).
Although the Ninth Circuit has not resolved the precise issue faced here, other
courts have done so: Two of these decisions apply Smith to find that the NSA is not
violating the Fourth Amendment. See A.C.L.U. v Clapper, 959 F.Supp. 2d 724 (S.D.N.Y.
2013); U.S. v. Moalin, 2013 WL 6079518 (S.D.Cal. 2013).

Memorandum Decision – page 5

But these cases do not address a subject lurking in the shadows here: The
possibility that the NSA is tracking the location of calls using the trunk identifier data
discussed above. In Jones, five Justices wrote that the government surveillance of one’s
public movements for 28 days using a GPS device violated a reasonable expectation of
privacy and constituted a Fourth Amendment search. See also, Case Comment, Fourth
Amendment – Warrantless Searches, 127 Harv.L.Rev. 2164 (2014) (concluding that
“[b]ecause the disclosure of [cell-site location information] is not necessarily voluntary,
individuals still may hold an expectation of privacy in their cell-site data even under
Smith”).
The NSA denies that it is tracking location. Teresa Shea, the NSA’s Director of
the Signals Intelligence Directorate represents to the Court that “[t]he metadata collected
by the Government pursuant to these [FISC] orders also does not include cell site
locational information.” Shea Declaration, supra at ¶ 15. A similar representation was
made by the NSA’s General Counsel, Robert Litt when he stated that “I want to make
perfectly clear we do not collect cellphone location information under this program,
either GPS information or cell site tower information.”5 Finally, the FISC orders
submitted to the Court expressly prohibit the NSA from collecting any addresses

5

See Klayman, 957 F.Supp.2d at 36 n. 57 (citing Transcript of June 25, 2013 Newseum Special
Program: NSA Surveillance Leaks: Facts and Fiction, Remarks of Robert Litt, Gen. Counsel, Office of
Dir. of Nat'l Intelligence, available at http://www.dni.gov/index.php/newsroom/speeches–and–
interviews/195–speeches–interviews–2013/887–transcript–newseum–special–program–nsa–surveillance–
leaks–facts–and-fiction).

Memorandum Decision – page 6

associated with the telephone numbers it collects, apparently precluding the collection
and analysis of location data. See Order (Dkt. No. 15-6) at pg. 3.
Smith’s briefing and argument were not extensive on this issue. While there is
speculation that the NSA is tracking location, there is no evidence of that, and the agency
denies it. Under these circumstances, the Court will not assume that the NSA’s privacy
intrusions include location tracking.
Because Jones does not apply, the weight of the authority favors the NSA. The
Supreme Court’s decision in Smith, supplemented by the Circuit’s decisions in Reed,
Forrester, and Golden Valley, and the two District Court decisions on point, Clapper and
Moalin, support a finding that there is no Fourth Amendment violation here.
The contrary view is stated by Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C.2013),
a thoughtful and well-written decision by Judge Richard Leon. He distinguished Smith
by finding that the scope and duration of the NSA’s collection is far beyond the
individual pen register at issue in Smith. Of critical importance to Judge Leon was that
Smith could never have anticipated the ubiquity of cell-phones and the fact that “people
in 2013 have an entirely different relationship with phones than they did thirty-four years
ago.” Id. at 36. As he eloquently observes, “[r]ecords that once would have revealed a
few scattered tiles of information about a person now reveal an entire mosaic—a vibrant
and constantly updating picture of the person’s life.” Ultimately, he held that the
plaintiffs had a likelihood of success on their Fourth Amendment claim, and he enjoined
the NSA from collecting their telephone records, although he stayed his decision pending
appeal.
Memorandum Decision – page 7

Judge Leon’s decision should serve as a template for a Supreme Court opinion.
And it might yet. Justice Sotomayor is inclined to reconsider Smith, finding it “ill-suited
to the digital age, in which people reveal a great deal of information about themselves to
third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S.
945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view,
should not “treat secrecy as a prerequisite for privacy.” Id.
But Smith was not overruled, and it continues – along with the Circuit decisions
discussed above – to bind this Court. This authority constrains the Court from joining
Klayman. Accordingly, the Court will grant the defendants’ motion to dismiss and deny
Smith’s motion for injunctive relief. The Court will issue a separate Judgment as
required by Rule 58(a).

DATED: June 3, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision – page 8