Klayman v. Obama, the NSA Surveillance Case: Is the "Third Party" Doctrine Still Alive? Or Is the Gathering of Information by Businesses Now Considered "State Action"?

In an opinion released Monday, Judge Richard J. Leon, a federal judge for the District of Columbia, struck down the NSA surveillance program as unconstitutional. The principal question is, "How shall we reconcile the Third Party Doctrine with the State Action Doctrine?"


Yesterday a federal district court ruled that the NSA surveillance program that records the telephone number and location of every telephone call in the United States violates the Fourth Amendment. Here is a link to the judge's opinion, posted by Greg McNeal at Forbes. And here is a link to an excellent summary of the opinion by Raffaela Wakeman, a third-year student at Georgetown University, entitled Don’t Miss the Footnotes: Judge Leon’s Opinion in Klayman (Section 215 Collection). 

Here is Judge Leon's description of the NSA surveillance program:

In broad overview, the Government has developed a “counterterrorism program” under Section 1861 in which it collect, compiles, retains, and analyzes certain telephone records, which it characterizes as “business records” created by certain telecommunications companies (the “Bulk Telephony Metadata Program”). The records collected under this program consist of “metadata,” such as information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. ... According to the representations made by the Government, the metadata records collected under the program do not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls. ...Through targeted computerized searches of those metadata records, the NSA tries to discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States.

The legal reason that it has been constitutional for the government to carry on such widespread surveillance of ordinary citizens is the "third party doctrine." The Supreme Court has ruled many times that the Fourth Amendment protects us from government intrusion whenever we have a "reasonable expectation of privacy." That is why the government may not listen in on telephone calls or eavesdrop on private conversations. However, the Court has also ruled that if we disclose information in the known presence of a "third party," then we no longer have the right to keep that information confidential. For example, if the person we are speaking to is an undercover government agent, that person may testify about what we said. Or if the person we are speaking to later agrees to disclose what we said to the government, it does not violate our Fourth Amendment rights. Essentially, the idea is that while the government may not search our homes or eavesdrop on our private conversations, once we disclose information to someone else, that other person "owns" that information, and may, if they choose, share that information with the government.

It is also constitutional for the government to keep track of anything we do in public. For example, if we say something to another person in a crowded elevator, it is permissible for the government to record or listen in on that conversation. Similarly, it is constitutional for the government to access security cameras placed on city streets or places of business. You and I have no "reasonable expectation of privacy" in any of those places. The government can place security cameras in public places all over the city if it wishes to record the movements of everybody.

For the same reasons bank records, credit card records, and phone records are not constitutionally protected. We conduct these transactions knowing that the banks, stores, and phone companies are aware of how we spend our money and who we speak to over the phone. This is information that these businesses have -- it is part of their business records -- and until now those businesses have had the right to decide whether to share that information with the government.

Here is the truly remarkable thing about Judge Leon's opinion. In effect he characterizes gathering of this information by telephone companies as "state action." Here is what the judge stated:

It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

This problem will only become worse. Facebook, Google, and other computer programs record our every keystroke, our every communication. None of us really believes that this information is "confidential" in the sense that third parties are not aware of it. How will we reconcile 18th century notions of privacy in a pre-industrial economy with 21st century life in the information age that is constructed on the basis that we all connected to each other? Will the courts be able to distinguish an organization's "occasional provision of information" to the government from a "joint intelligence-gathering operation"? We'll see.