Meet the D.C. Circuit Judges Who Will Decide NSA Case


When the U.S. Court of Appeals for the D.C. Circuit convenes Nov. 4 to consider the National Security Agency’s bulk collection of phone data, lawyers will make their case to one judge steeped in surveillance issues in recent years.

The challenger, Washington attorney Larry Klayman, alleges the government’s mass collection of Americans’ phone records is unconstitutional. U.S. District Judge Richard Leon ruled in December that the program “almost certainly” violated individual privacy rights. The U.S. Department of Justice appealed.

Over the weekend, the D.C. Circuit identified the three judges who will hear the NSA case: Judge Janice Rogers Brown and senior judges David Sentelle and Stephen Williams.

Sentelle is no stranger to questions about the Fourth Amendment and how it applies to technology and government surveillance. In 2010, he weighed in on United States v. Jones, a challenge to the warrantless use of a GPS device to track defendant Antoine Jones’ movements in the Washington metro area. A three-judge D.C. Circuit panel found the tracking violated Jones’ Fourth Amendment rights. Sentelle was part of the minority that wanted a full sitting of the D.C. Circuit to reconsider.

Sentelle, in his 2010 dissenting opinion in Jones, wrote that the panel’s decision was “inconsistent” with a 1983 decision from the U.S. Supreme Court, United States v. Knotts. The Knotts case involved the use of a radio transmitter device to track a vehicle’s movements. The high court found that because the vehicle was on public roads, there was no reasonable expectation of privacy. Brown and two other judges joined Sentelle’s dissent.

The Supreme Court ultimately heard Jones’ case and in 2012 affirmed the D.C. Circuit panel’s finding that the warrantless use of the GPS device violated his constitutional rights.

Two years later, Sentelle turned to the Supreme Court’s decision in Jones for guidance when he heard a challenge to the warrantless use of cell site location data. When a user dials a number on his or her cellphone, the closest cellphone tower typically carries the call and logs a record of it. In the case before Sentelle, United States v. Davis, prosecutors used cell site location data to argue to the jury that the defendants were near the locations of several robberies.

Although the Jones case involved different technology and a different set of facts, Sentelle—sitting by special assignment in the Eleventh Circuit—said it was “instructive.” Jones “removes all doubt” that electronically transmitted information can be protected by the Fourth Amendment, Sentelle said, writing for the Eleventh Circuit panel.

Sentelle wrote that the warrantless use of cell site location information violated the Fourth Amendment because an individual’s movements were private unless they were carried out in a public way. Revealing information from cell towers could convert a private event into a public one, Sentelle wrote. He said cell site data was more like communications data, which..
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