EFF, ACLU Demolish ‘It’s Just Metadata’ Claim In NSA Spying Appeal


This was originally published by the Electronic Frontier Foundation.

Washington, D.C. — The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) on Wednesday 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 4th 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 said. “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,” said 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 1st and 4th Amendment lawsuits related to NSA surveillance and together represent Idaho nurse Anna Smith in a similar case currently on appeal in the Ninth U.S. 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:


Andrew Crocker
Legal Fellow
Electronic Frontier Foundation

Personal Liberty

Electronic Frontier Foundation

From the Internet to the iPod, technologies are transforming our society and empowering us as speakers, citizens, creators, and consumers. When our freedoms in the networked world come under attack, the Electronic Frontier Foundation (EFF) is the first line of defense. EFF broke new ground when it was founded in 1990—well before the Internet was on most people's radar—and continues to confront cutting-edge issues defending free speech, privacy, innovation, and consumer rights today. From the beginning, EFF has championed the public interest in every critical battle affecting digital rights. https://www.eff.org/

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