EFF, ACLU Demolish "It’s Just Metadata" Claim in NSA Spying Appeal

Electronic Frontier Foundation Media Release
For Immediate Release: Wednesday, August 20, 2014
Andrew Crocker
Legal Fellow
Electronic Frontier Foundation
+1 415 436-9333 x139

EFF, ACLU Demolish “It’s Just Metadata” Claim in NSA Spying Appeal

Americans Deserve Full Protection of the Fourth Amendment
for their Telephone Records, Groups Argue

Washington, DC – The Electronic Frontier Foundation (EFF)
and the American Civil Liberties Union (ACLU) today filed
an amicus brief in Klayman v. Obama, a high-profile lawsuit
that challenges mass surveillance, arguing that Americans’
telephone metadata deserves the highest protection of the
Fourth Amendment.
Larry Klayman, conservative activist and founder of
Judicial Watch and Freedom Watch, was among the first
plaintiffs to sue the National Security Agency (NSA) over
the collection of telephone metadata from Verizon customers
that was detailed in documents released by Edward Snowden.
In December 2013, Judge Richard Leon issued a preliminary
ruling that the program was likely unconstitutional, and
the case is currently on appeal before the U.S. Court of
Appeals for the District of Columbia Circuit.
In the new amicus brief in Klayman v. Obama, the EFF and
ACLU lawyers repudiate arguments by U.S. officials that the
records are “just metadata” and therefore not as sensitive
as the contents of phone calls. Using research and new
case law, the civil liberties groups argue that metadata
(such as who individuals called, when they called, and how
long they spoke) can be even more revealing than
conversations when collected en masse.
“Metadata isn’t trivial,” EFF Legal Fellow Andrew Crocker
says. “Collected on a massive scale over a broad time
period, metadata can reveal your political and religious
affiliations, your friends and relationships, even whether
you have a health condition or own guns. This is exactly
the kind of warrantless search the Fourth Amendment was
intended to prevent.”
The brief explains that changes in technology, as well as
the government’s move from targeted to mass surveillance,
mean that the holding of the 1979 Supreme Court case Smith
v. Maryland that the government relies on (often called the
“third-party doctrine”) does not apply. Instead, EFF and
the ACLU point to a series of recent key
decisions–including the Supreme Court decisions in United
States v. Jones in 2012 and Riley v. California in 2014–in
which judges ruled in favor of requiring a warrant for
electronic search and seizure.
“Dragnet surveillance is and has always has been illegal in
the United States,” says ACLU Staff Attorney Alex Abdo.
“Our country’s founders rebelled against overbroad searches
and seizures, and they would be aghast to see the liberties
they fought hard to enshrine into our Constitution
sacrificed in the name of security. As even the president
himself has recognized, we can keep the nation safe without
surrendering our privacy.”
EFF and the ACLU have each litigated numerous First and
Fourth Amendment lawsuits related to NSA surveillance and
together represent Idaho nurse Anna Smith in a similar case
currently on appeal in the Ninth Circuit Court of Appeals
called Smith v. Obama. The ACLU is a plaintiff in a case
currently pending before the Second Circuit Court of
Appeals, ACLU v. Clapper, to be heard on Sept. 2. EFF has
two cases–Jewel v. NSA and First Unitarian Church of Los
Angeles v. NSA–before the U.S. District Court for Northern
District of California.
For the amicus brief:
For this release: