“I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment. Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court’s injunction against the Government’s program.”
The collection of telephony metadata from a third party such as a telecommunications provider is not considered a seizure under the Fourth of the Amendment, as defined in the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979).
Even if it did however, the Fourth Amendment barrs only unreasonable searches and seizures.