''American Civil Liberties Union v. Clapper'', 785 F.3d 787 (2nd Cir., 2015), was a lawsuit by the

American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...

(ACLU) and its affiliate, the

New York Civil Liberties Union The New York Civil Liberties Union (NYCLU) is a civil rights organization in the United States. Founded in November 1951 as the New York affiliate of the American Civil Liberties Union, it is a not-for-profit, nonpartisan organization with nea ...

, against the

United States federal government The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a fe ...

as represented by then- Director of National Intelligence

James Clapper James Robert Clapper Jr. (born March 14, 1941) is a retired lieutenant general in the United States Air Force and former Director of National Intelligence. Clapper has held several key positions within the United States Intelligence Community. H ...

. The ACLU challenged the legality and constitutionality of the

National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collect ...

's (NSA) bulk phone metadata collection program.''American Civil Liberties Union v. Clapper''
785 F. 3d 787
(2nd. Cir., 2015). The challenge was initially rejected in District Court, but that ruling was overturned at the Circuit Court level, where Judge Gerard E. Lynch ruled that the "staggering" amount of information collected by the NSA was a violation of the Fourth Amendment and the

Patriot Act The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Appro ...

. However, this particular complaint later became moot when the U.S. Congress clarified NSA surveillance procedures in the

USA Freedom Act The USA Freedom Act (, ) is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metada ...

of 2015.

Background

The lawsuit arose in the wake of disclosures by Edward Snowden in 2013, revealing a system of

global surveillance Global mass surveillance can be defined as the mass surveillance of entire populations across national borders. Its existence was not widely acknowledged by governments and the mainstream media until the global surveillance disclosures by Edwar ...

by the NSA and its international partners. In one particular revelation, ''

The Guardian ''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...

'' reported that the

Foreign Intelligence Surveillance Court The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants a ...

, at the request of the NSA, had ordered

Verizon Verizon Communications Inc., commonly known as Verizon, is an American multinational telecommunications conglomerate and a corporate component of the Dow Jones Industrial Average. The company is headquartered at 1095 Avenue of the Americas ...

to hand over several months' worth of personal communications records for many of its customers. The phone numbers of both parties on a call were handed over, as was the call's location, time, and duration. The contents of the conversations were not covered in the order, but the metadata could be collected without a warrant under Section 215 of the

. The ACLU sued Director of National Intelligence

James R. Clapper James Robert Clapper Jr. (born March 14, 1941) is a retired lieutenant general in the United States Air Force and former Director of National Intelligence. Clapper has held several key positions within the United States Intelligence Community. H ...

, NSA Director Keith B. Alexander, Secretary of Defense

Chuck Hagel Charles Timothy Hagel ( born October 4, 1946)Eric H. Holder, and FBI director Robert S. Mueller III, claiming that the NSA's mass surveillance program violated the

First First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...

and Fourth Amendments, and particularly the warrant requirements of the latter. Specifically, the ACLU argued that collection of telephone metadata constituted an invasion of privacy and unreasonable

search and seizure Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confisca ...

under the Fourth Amendment for Verizon subscribers, and that collecting the data could

chill In computing, CHILL (an acronym for CCITT High Level Language) is a procedural programming language designed for use in telecommunication switches (the hardware used inside telephone exchanges). The language is still used for legacy systems i ...

the

free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...

guaranteed by the First Amendment if people became reluctant to communicate due to a fear of government surveillance.''American Civil Liberties Union v. Clapper''
959 F. Supp. 2d 724
(S.D.N.Y., 2013).

Litigation history

Initial District Court ruling

The case was first heard at the

United States District Court for the Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a federal trial court whose geographic jurisdiction encompasses eight counties of New York State. Two of these are in New York City: New ...

. On December 28, 2013, Judge William Pauley dismissed the ACLU's complaint. Pauley ruled that phone users had no

reasonable expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privac ...

for phone metadata, so a government search of that data did not require a warrant under the Fourth Amendment. This holding was based on the 1979 Supreme Court precedent '' Smith v. Maryland'', in which it was determined that people who voluntarily give data to

third-party Third party may refer to: Business * Third-party source, a supplier company not owned by the buyer or seller * Third-party beneficiary, a person who could sue on a contract, despite not being an active party * Third-party insurance, such as a Ve ...

telecommunications firms could not expect that data to be private. Pauley found no reason why ''Smith v. Maryland'', which concluded that phone metadata was outside the expectation of privacy, would not apply to the NSA's program.. Pauley also held that the data collection was supported by the NSA's internal procedures that were in turn authorized under security-oriented statutes like the

. According to Keith B. Alexander, the NSA did not perform any pattern analysis or automated data mining to extract additional personal information from every phone user's metadata, but it did need to collect that data to build a database from which individual pieces of information could be searched specifically with a warrant in the future. The court held that this technique was the least intrusive and most practicable method for the NSA's purposes. Pauley was also convinced by the NSA's arguments that the metadata collection program was necessary for protecting America from terrorist attacks, citing purported success stories like the identification of Najibullah Zazi in connection with the New York City Subway bombing plot, Khalid Ouazzani in connection with the New York Stock Exchange bombing plot, and

David Headley David Coleman Headley (born Daood Sayed Gilani; June 30, 1960) is an American terrorist. He is currently serving a 35-year sentence in the United States after pleading guilty to 12 international terrorism charges. It has been alleged that Headl ...

in connection with the Mumbai bombings and Danish newspaper bombing plots. Pauley concluded that even though the privacy concerns raised by the surveillance program were not "trivial," the potential benefits of surveillance outweighed such considerations. Thus the NSA's surveillance program was found to be in compliance with the Patriot Act. In turn, Pauley avoided the Fourth Amendment considerations of the complaint. The ACLU appealed this ruling to the

Second Circuit Court of Appeals The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...

Circuit Court ruling

At the Second Circuit, the ACLU argued: On May 7, 2015, the Second Circuit held that "the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates Section 215" of the

. This immediately made many NSA surveillance techniques illegal. As a result, the District Court ruling was

vacated A vacated judgment (also known as vacatur relief) makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. ...

and that court was instructed to hear any future cases related to the ACLU's complaint.

Subsequent developments

Shortly after the Circuit Court ruling, which made much of the NSA's phone metadata surveillance program illegal under the provisions of the Patriot Act, the

U.S. Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washin ...

clarified the parameters of the program in the

, which was passed on June 2, 2015. That statute restored some electronic

wiretapping Telephone tapping (also wire tapping or wiretapping in American English) is the monitoring of telephone and Internet-based conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitorin ...

techniques and reinstated several types of NSA authority that had expired under the Patriot Act. However, some surveillance powers previously enjoyed by the NSA were restricted. According to the ACLU, "following the passage of the

, the government petitioned FISC [

] to allow the NSA to restart the program, arguing that the new law allows it to continue bulk collection during a 180-day transition period. The ACLU argued that the previous ruling did not allow data collection during that transition period, but a motion to this effect was ultimately rejected by the Second Circuit, because it complied with the requirements of the USA Freedom Act.

Impact

The initial ruling in ''American Civil Liberties Union v. Clapper'', in which the

Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a federal trial court whose geographic jurisdiction encompasses eight counties of New York State. Two of these are in New York City: New ...

ruled that the NSA phone metadata surveillance program was legal while employing no Constitutional arguments, directly conflicted with a different District Court ruling in ''

Klayman v. Obama ''Klayman v. Obama'', 957 F.Supp.2d 1 (D.D.C., 2013), was a decision by the United States District Court for the District of Columbia, United States District Court for District of Columbia finding that the National Security Agency's (NSA) bulk ...

'' in which the Fourth Amendment was discussed prominently''.'' This resulted in a split precedent, which in turn caused significant confusion over whether NSA surveillance violated the Constitution, along with calls for a definitive Supreme Court decision on the matter. While the later Circuit Court ruling in the ''Clapper'' case partially ameliorated the split precedent, it did so on procedural grounds related to provisions in the newly-passed

, while again avoiding discussions of the conflict between that statute (plus its predecessor the

) and the Fourth Amendment. As a result, several commentators noted that courts had thus far largely avoided difficult decisions on whether modern telecommunications surveillance comports with Fourth Amendment requirements for

and related warrant procedures, or whether older precedents like '' Smith v. Maryland'' were still relevant in light of new technologies.

References

External links

Ruling in ''ACLU v. Clapper''

ACLU page on ''ACLU v. Clapper''

Legal documents of ''ACLU v. Clapper''

Initial complaint
{{US4thAmendment, state=collapsed 2013 in United States case law 2015 in United States case law American Civil Liberties Union litigation Mass surveillance litigation