The federal judge who issued an injunction yesterday against the National Security Agency's daily sweep of telephone metadata knew he was pushing past the boundaries of U.S. Supreme Court decisions in concluding the mere collection of phone numbers that citizens dial is a likely violation of their constitutional rights. The question is whether the Supreme Court will take up his challenge and update its understanding of privacy for the digital age.
In an impassioned, 68-page decision in Klackman v. Obama, Judge Richard Leon ordered the government to halt its bulk collection of telephone metadata and destroy the evidence it holds. He stayed his ruling for at least six months so the government can prepare an appeal, but warned that further delays, if the government loses, will "not be well received."
The government may well prevail on national security grounds. But sooner or later, in this case or some other, the Supreme Court will have to consider the mosaic theory of intelligence: At what point has the government gathered so much information about a person that it constitutes an illegal search, even if each individual snippet of information was legally obtained.
For securities analysts, the mosaic theory is a defense. They are allowed to assemble non-material, non-public information into a picture of a company's prospects that might equal, in its predictive powers, illegal insider information. The government has been playing by similar rules for a long time, but the ubiquity of digital data may change that.
Judge Leon made no attempt to downplay the central decision controlling telephone searches, which the government relies upon to defend its surveillance program. The 1979 case Smith vs. Maryland upheld the power of police to install a "pen register" recording all the numbers dialed by robbery suspect from his home phone. In Smith, the court held that citizens have no reasonable expectation of privacy when they voluntarily use a central phone exchange to dial another caller.
In his decision, Leon explicitly called on the Supreme Court to rethink the reasoning behind Smith.
The court in 1979 never could have "imagined how the citizens of 2013 would interact with their phones," wrote Leon, a conservative George W. Bush appointee on the federal court for the D.C. Circuit. "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."
Leon is straying into dangerous territory for conservatives by citing changing expectations of privacy. And his reasoning may even have trouble winning over the Supreme Court, given the trend in recent decisions. In last year's Maryland v King, a 5-4 majority led by Justice Anthony Kennedy upheld the practice of taking routine DNA swabs from people arrested even for routine offenses. That drew a strong dissent from Justice Antonin Scalia, who called the resulting database a "genetic panopticon" police could query for suspects.
Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the "identity" of the flying public), applies for a driver's license, or attends a public school.
It was Scalia, however, who dodged the mosaic theory in U.S. vs. Jones, also last year, rejecting the D.C. Circuit's reasoning that the sheer volume of data collected by placing a GPS tracking device on a suspect's car for a month violated the Fourth Amendment. Scalia agreed the search was illegal, but resorted to the more tangible explanation that police had violated Jones' right of privacy when they invaded his personal space to attach the device to his car.
Justice Sonia Sotomayor agreed with the conclusion but preferred the D.C. Circuit's reasoning.
"It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," she said, aiming, like Judge Leon, squarely at the 1979 decision in Smith.
This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps ...some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.
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For much better legal analysis of the issues in this case than I can muster, read the continuing coverage at the Volokh Conspiracy.
