Wednesday, May 13, 2015

Standing in the 2nd Circuit Bulk Metadata Case

by Michael Dorf

Last week, in ACLU v. Clapper, the U.S. Court of Appeals for the 2nd Circuit ruled that the government's collection of bulk metadata (information about all calls placed and received in the U.S. but not the contents of the conversations) violates Section 215 of the PATRIOT Act. The Court did not reach the question whether the program (which was revealed by Edward Snowden) violates the Fourth Amendment. As Professor Orin Kerr noted on Volokh/WaPo last week, the direct practical effect of the merits decision (with which he agrees) is limited, due to the pending expiration of the Act. But as Professor Kerr also acknowledges, the ruling could affect the congressional debate over reauthorization.

Here I want to linger over the standing analysis. The opinion by (my former colleague) Judge Jerry Lynch had to overcome the initial obstacle of the Supreme Court's 2013 decision in Clapper v. Amnesty Int'l USA, which held that people whose speech was chilled by the fear that the government was monitoring their electronic communications had only suffered "self-inflicted injuries," and thus lacked standing to sue in a federal court. Judge Lynch pointed to what one might think is a powerful distinction between the current suit and the 2013 case: By contrast with the Amnesty Int'l USA plaintiffs, whose case was decided by the SCOTUS before the Snowden revelations, here the plaintiffs know for certain that they are being monitored because the bulk metadata program scoops up everybody's metadata.

But the government argued that scooping up the metadata is not by itself an injury because the government ignores nearly all of the metadata it collects. Only when the government has "reasonable articulable suspicion" does the government query the database about particular calls. The odds that any random individual's metadata will be examined are quite low, certainly below the probablistic threshold for injury in Amnesty Int'l USA.

Judge Lynch has two responses to the government's argument. First, he says that the collection of the data itself is an injury because it is, in the terms of the Fourth Amendment, a "seizure." As Professor Kerr notes, it's not entirely clear why Judge Lynch is talking about the Fourth Amendment for standing purposes. The relevant question for standing is whether the metadata collection is an "injury." Accordingly, I think Judge Lynch can be best understood to be saying that the inclusion of "seizures" in the Fourth Amendment establishes that a seizure, even unaccompanied by a search, injures the party whose person or property is seized.

That's fair enough, but I'm not sure that a metadata seizure is the same as a seizure of the person or of tangible property. Suppose the government seizes Joe's briefcase. Even if the government never opens the briefcase to see what is inside, the seizure of the briefcase deprives Joe of the use of the briefcase during the period that the government holds it. Not so with metadata. When the government copies the metadata from the Verizon computers to its own computers, it doesn't even deprive Verizon of the metadata, much less Verizon's customers.

To be sure, when the government takes someone's metadata, that person feels anxiety because of the risk that the government will look at the metadata. If I were writing on a clean slate, I would probably say that this anxiety is enough to establish standing. But given Amnesty Int'l USA, that line of reasoning appears to be foreclosed.

Judge Lynch has a second argument, though. He says that whenever the government performs a suspicion-based search on a particular suspect
its computers search all of the material stored in the database in order to identify records that match the search term.  In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent.  There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.
That last move strikes me as dubious. In Illinois v. Caballes, the SCOTUS held that being subject to a dog sniff is not a search for Fourth Amendment purposes because the dog only alerts in the presence of contraband. The dog may learn that the suspect hasn't bathed recently or ate garlic for dinner the previous night, but the dog does not convey this information to any human, and so there is no invasion of privacy. Even if one thinks that the Fourth Amendment should protect people against being forced to divulge private (non-criminal) information to dogs as well as to humans, presumably that's because dogs have minds. Given current technology, computers do not. The computer doesn't learn anything about someone whose metadata it sorts because computers are not capable of learning in the relevant sense. Computers can "learn" in the sense that they can be programmed and even in the sense that they can, with experience, get better at a task (such as predicting what songs or movies you'll like), but outside the world of science fiction there is no evidence that modern computers subjectively experience the world.

Of course, Caballes only establishes that being sniffed by a dog isn't a search for Fourth Amendment purposes. It can still be an injury for Article III purposes. Likewise, we might think that having one's metadata sorted as part of an effort to get at someone else's records is not a search for Fourth Amendment purposes, but is still an injury for Article III purposes. But why? In what way does someone suffer any sort of setback to his interests when a computer program sorts through his data in the course of identifying someone else's data for examination by humans?

Some people might feel injured by that kind of sorting, I suppose. After all, people have varying intuitions about what counts as a violation of privacy. Consider a provocative example offered by my soon-to-be colleague Professor Andrei Marmor in a recent article in Philosophy & Public Affairs. (You need a subscription to follow the link.) He asks the reader to suppose
that we came to learn that there is an alien civilization, galaxies away, that is watching us closely; they cannot establish any contact with us, and never will, but they are watching. Some people might find it disturbing, others might not; either way, it would be very difficult to point to any interest of ours that might be affected here. If we cannot establish any contact with the aliens, then we cannot have an interest in how we present ourselves to them. How would our lives go less well, in any sense whatsoever, by knowing that the aliens are watching? I take it as a confirmation of my argument that it results in the conclusion that the aliens are not violating our right to privacy.
I do not share Professor Marmor's reaction to this hypothetical example. To me, the mere knowledge that the aliens are watching could be harmful in itself. Indeed, one might even think that a person thus observed is harmed--injured for Article III purposes--by the alien observation even if the person never learns that the aliens are watching. A variant of that particular puzzle is presented by the underrated 1993 thriller Sliver, in which the voyeuristic owner of an apartment building secretly observes his tenants via hidden cameras. If the tenants never learn of the voyeurism, has their privacy been violated?

When I have discussed examples like these with students in my constitutional law and federal courts classes, reactions tend to vary. People might also have diverse intuitions about the question of whether having one's data sorted by a computer counts as an injury on privacy or other grounds. As one who thinks that the SCOTUS standing doctrine is overly restrictive, I would like to see the Court uphold the Second Circuit's standing decision. But if I had to bet, I'd guess that a majority would be inclined the other way.

10 comments:

Joe said...

The government doesn't physically seize a tangible thing when listening to a phone call but it was deemed a "search and seizure." The person can still "use" the call, but "seizure" of its content still counts. So, not so sure that seizure of the data here is okay.

Second, the dog sniff was upheld because it was noted that a dog only will say if drugs are present. No protected information would be exposed. Data mining has at least some risk of some protected information being exposed. This might require knowing how this data mining works. But, unlike a dog's mind, the computers collect and process data examined by humans.

The opinion references 1A concerns there too. If the government is going to process our data, they have to do so "reasonably." Anyway, bottom line, maybe the USSC will not find standing. The net result is totally egregious. It's a shell game to prevent judicial review of the merits, even when it is clear a search is taking place.

If this practice is constitutional, it might be troubling. But, at least have the guts to decide the question.

Michael C. Dorf said...

Joe:

1) The contents of a phone call are obviously private and if revealed to a human being create the potential for embarrassment, etc. As my post implicitly acknowledges, the same is true even for the metadata if revealed to a human.

2) Yes, that was my point about Caballes: The dog sniff is not a search because no person gains private, non-criminal info about the suspect. The same is true when a computer sorts through metadata to find the phone numbers to be examined by humans. That examination by the humans is the search. The whole point here is that the humans DON'T examine the data collected and processed by humans absent individualized suspicion. That still violates the statute, I agree, but for the people whose metadata are never examined by any human, it's hard to see where there's an injury as that term is used in the case law.

As for standing doctrine as a tool for cowards to duck substantive questions, it can indeed sometimes be used that way. Moreover, as I say in the post, I would substantially loosen standing doctrine more generally. I thought I made clear that I was analyzing the case according to the standing law as it is, not according to how I would remake it if I could.

Joe said...

I understand you are stating the law as is. So, I said "maybe the USSC will not find standing" -- a predictive thing -- while then stating my own opinion on that.

The contents are being processed by computers run by humans. The idea no humans see this material to me is not credible. Some of the material "seized" is even something that might be leaked by some future Snowden. The chance of this happening factors into why the "seizure" should at least warrant standing to sue.

The dog and computer is not in the same position here. You can't ask the dog if the guy is smelly or something. The computer has data that humans can and at some point do access. This might be a bit of supposition, but at some point, we have to take judicial notice of some basic realities here.

Michael C. Dorf said...

Living among dogs, I think you're wrong on the last point. Even a well-trained police dog might linger at a suspect's crotch, which tells the dog's handler something embarrassing (but non-criminal) about the sniffee.

Joe said...

The opening post said:

"the dog does not convey this information to any human."

Your last comment suggests that the dog could so convey. Living among cats and dogs, I'm game.

Human run computers here still are not quite the same. Respecting the intelligence of non-humans. As I try to do.

t jones said...

a. "Even a well-trained police dog might linger at a suspect's crotch, which tells the dog's handler something embarrassing (but non-criminal) about the sniffee.
In that case, perhaps the Sup. Ct. is (gasp) wrong about whether a dog sniff is a search.
b. The right to privacy isn't just about embarrassment, although that's what seems to spring to mind first. The right to privacy is a right to decide what information about you is or isn't anybody else's business.
c. If you kept all your correspondence in boxes in the envelopes, leaving out the question of where you keep the boxes, could the government go through each box, copy the envelopes, and analyze the copies to make a record of and analyze with whom you correspond without any up front suspicion that you were engaged in any illegal activity or that the record of your correspondence would reveal anything about that illegal activity?

Greg said...

The supreme court has been inconsistent about what I will call "peripheral searches," and for good reason. While some of these are for information that is already essentially public, some can reveal information that is quite private. Given Kyllo v. United States and United States v. Jones, the court seems to be more cautions about technical searches than they were about the more familiar dog sniff in Caballes. The real problem case is Smith v. Maryland.

The analogy of computer searches where a person does not review your individual records as not being a search is a false one. A more appropriate analogy would be a search that doesn't find anything.

If a police officer comes into your house when you aren't home, rummages through your things, decides you aren't a terrorist and puts them back, I think it's reasonable to say that you were still injured and searched. A computer search that doesn't flag anything is similar. The person who wrote the program is rummaging through your information, and (usually) decides that there's nothing to see, but just because it doesn't go any farther doesn't mean a search hasn't happened.

Such a distinction is especially obvious if we consider the computer to be reviewing, rather than phone company records, the actual content of phone conversations or the contents of someone's personal computer. I think in both of those cases we would agree that a search is clearly being performed, even if a real person never looks at those records other than to see that the result is negative.

This case isn't nearly so straightforward, again in light of Smith v. Maryland. If it isn't a search to look at phone metadata, I'm not sure that it can be an injury, which is your larger point. I just don't think Caballes gets you there by trying to make a computer to dog analogy, especially given Kyllo and Jones. Then again, there may be growing support on the court for revisiting Smith, if Riley v. California is any indication.

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