Bulk metadata collection: statutory and constitutional considerations.

• Author: Donohue, Laura K.
• Position: Continuation of II. Bulk Collection and FISA's Statutory Provisions B. Subpoena Duces Tecum through IV. Conclusion, with footnotes, p. 853-900

1. Fishing Expeditions

   The government's contention, consistent with United States v. R. Enterprises, Inc., is that to fall outside the statutory confines, there must be no reasonable possibility that the category of materials sought under Section 215 will produce relevant information. (415) Although that case did give a fair amount of latitude in the standard of relevancy applied to grand jury subpoenas, it also established important limits. "Grand juries," the Court wrote, "are not licensed to engage in arbitrary fishing expeditions." (416)

   In other words, subpoenas may not be used to obtain massive amounts of information from which evidence of wrongdoing--absent prior suspicion--can be derived. A grand jury, for example, could not convene in Bethesda, Maryland, and simply begin collecting telephony metadata, which it could subsequently mine to find evidence of criminal behavior. To the contrary, an investigator must have a reasonable suspicion that some document or communication exists, and that it is directly relevant to the investigation in question, for the Court to order its production.

   The Court has used this logic to quash a subpoena duces tecum requiring that computer hard drives and floppy disks be produced. (417) The subpoena requested was held to be overbroad because the subpoenaed materials "contained] some data concededly irrelevant to the grand jury inquiry." (418) Judge Mukasey quashed the subpoena on the grounds that the government could narrow the documents requested prior to acquisition. (419) He also rejected the claim that the broader sweep of information was justified by the breadth of the investigation underway: even an "expanded investigation" did "not justify a subpoena which encompassed documents completely irrelevant to its scope." (420)

   As discussed above in relation to the relevance standard, almost all of the telephony metadata collected under Section 215 is unrelated to criminal activity. In Judge Reggie Walton's words, "Ordinarily, this alone would provide sufficient grounds for a FISC judge to deny the application." (421) The principle at work here was recognized by the Eastern District of New York: "While the standard of relevancy [as applied to subpoenas] is a liberal one, it is not so liberal as to allow a party 'to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.'" (422) A subpoena duces tecum may not be used to compel the production of records simply because at some point, in the future, they might become relevant.

   In a world limited by the physical manifestation of evidence, practicality helped to cabin the scope of subpoenas. Technology may have changed what is possible in terms of the volume and nature of records that can be obtained and stored, and the level of insight that can be gleaned. But it does not invalidate the underlying principle. Subpoenas, even those issued by grand juries, may not be used to engage in fishing expeditions.

2. Specificity

   Grand jury investigations are specific. That is, they represent investigations into particular individuals, or particular entities, in relation to which there is reasonable suspicion that some illegal behavior has occurred. The compelled production of records or items is thus limited by reference to the target of the investigation.

   If a grand jury were, for instance, focused on the potentially criminal acts of the head of a crime family in New York, absent reasonable suspicion of some sort of connection to the syndicate, it could not issue a subpoena for the telephone records of the Parent-Teacher's Association at Briarwood School in Santa Clara, California. In contrast, the Section 215 orders are broad and non-specific. That is, on the basis of no particular suspicion, all call records, many of which are of a purely local nature, are swept up by the NSA. (423)

   In response to this argument, the government points out that there is some precedent in the law for the government to collect records in bulk that may be relevant to an investigation and then to subject such records to subsequent analysis to determine which items are, in fact, relevant. In one case, the Eighth Circuit upheld a subpoena, even though most of the records bore no relationship to any criminal activity. (424) This case, however, fails to support the government's argument with regard to Section 215 and the bulk collection of metadata.

   In In re Grand Jury Proceedings, the government served two grand jury subpoenas duces tecum on Western Union. (425) The first required production of monthly wire transactions at the Royalle Inn, Kansas City, Missouri, for a period of thirteen months. (426) The second required production of Telegraphic Money Order Applications above $1000 from the Royalle Inn, Kansas City, Missouri, between January 1984 and February 1986. (427) Western Union moved to quash the subpoenas on the ground that they amounted to an unreasonable search and seizure in violation of the Fourth Amendment. (428) The government responded by alleging that drug dealers in Kansas City were using Western Union to transmit money. (429)

   The Eighth Circuit noted that it had previously held that Western Union customers have no privacy interest in Western Union records. (430) The court cited the Supreme Court's holding in United States v. Miller, in which the Supreme Court determined, consistent with Smith v. Maryland, that bank customers do not enjoy a legitimate expectation of privacy in bank records subject to subpoena. (431)

   The court in In re Grand Jury specifically noted that the request at issue--namely, the production of records from Royalle Inn--was not as sweeping as subpoenas that the judiciary had found to be outside the bounds of acceptability. In Federal Trade Commission v. American Tobacco Co., for instance, the Supreme Court refused to uphold the FTC's direction to two tobacco companies to produce letters and contracts. (432) The FTC had claimed "an unlimited right of access to the respondents' papers ... relevant or irrelevant, in the hope that something [would] turn up." (433) The Eighth Circuit similarly declined to uphold a subpoena calling for an attorney's records over a ten-year period. (434) The collection of all U.S. persons' telephony metadata is more properly considered in the same league as FTC v. American Tobacco Co. and Schwimmer v. United States, in which the courts recognized the overbroad use of government authority, as opposed to the more limited collection of information at issue in In re Grand Jury Proceedings.

3. Past Crimes

   Grand jury investigations are also retroactive, searching for evidence of a past crime. The telephony metadata orders, in contrast, are both past- and forward-looking, in that they anticipate the possibility of illegal behavior in the future. Although most of the individuals in the database are suspected of no wrongdoing whatsoever, the minimization procedures allow for any information obtained from mining the data to then be used in criminal prosecution. This is an unprecedented use of subpoena information-gathering authority amounting to a permanent, ongoing grand jury investigation into all possible future criminal acts.

4. March 2009 FISC Opinion

   FISC has openly recognized that the information it obtains from the metadata program could not otherwise be collected with any other legal instrument--including a subpoena duces tecum. In a secret opinion in March 2009, Judge Reggie Walton wrote:

   Because the collection would result in NSA collecting call detail records pertaining to [REDACTED] of telephone communications, including call detail records pertaining to communications of United States (U.S.) persons located within the U.S. who are not the subject of any FBI investigation and whose metadata could not otherwise be legally captured in bulk, the government proposed stringent minimization procedures that strictly controlled the acquisition, accessing, dissemination, and retention of these records by the NSA and FBI. (435) Later in the document, he again noted that the information "otherwise could not be legally captured in bulk by the government." (436) These assertions directly contradict the statutory requirement that the information could otherwise be obtained via subpoena duces tecum and amount to an admission, by the court, that the program violated the statute.

   What makes the the court's failure to stop the illegal program even more concerning, perhaps, is Judge Walton's explanation of why, even though the information could not legally be obtained in any other way, FISC allowed the government to proceed. He continued:

   Nevertheless, the FISC has authorized the bulk collection of call detail records in this case based upon: (1) the government's explanation, under oath, of how the collection of and access to such data are necessary to analytical methods that are vital to the national security of the United States; and (2) minimization procedures that carefully restrict access to the BR metadata and include specific oversight requirements. (437) In other words, FISC allowed an illegal program to operate because the government (1) promised that it was vital to U.S. national security, and (2) was directed by the court to police its own house by following the minimization procedures. The former is a flimsy excuse for allowing the executive branch to break the law. The latter highlights the extent to which the court, precisely because of the size of the collection program in question, was dependent on the NSA: "In light of the scale of this bulk collection program, the Court must rely heavily on the government to monitor this program to ensure that it continues to be justified ... and that it is being implemented in a manner that protects the privacy interests of U.S. persons." (438)

   Recall that Congress created FISC to protect U.S. persons' privacy interests. Congress did not anticipate that FISC...