If one is keeping score, it’s NSA – 2, challengers – 1. Earlier this week, a federal district judge in Idaho agreed with the government and dismissed a challenge brought against the NSA’s bulk collection of data. Judge B. Lynn Winmill, a Clinton appointee, in his brief eight page decision, basically validated a prior Supreme Court case (Smith v. Maryland) in which a pen register was used to surveil someone who was suspected of committing a crime as a basis for the dismissal. Though some believe Judge Winmill’s decision was less of an endorsement of prior precedent and rather, reluctant government compliance.
Judge Winmill stated in his opinion in Smith v. Obama, “The Fourth Amendment is concerned with surveillance that (1) involves a ‘trepassory intrusion on property’ or (2) ‘violates a subjective expectation of privacy that society recognizes as reasonable…’ It is the latter interest that Smith urges here. She claims that the NSA’s collection efforts violate her expectation of privacy in her telephone records.”
In relation to the two prior court cases litigated on this topic, two issues stand out. First, both Judge Winmill and Judge Pauley, federal district judge in New York who in December upheld the NSA’s collection practices in ACLU v. Clapper, ruled that there really is no reasonable expectation of privacy regarding phone calls, at least as far as the Fourth Amendment is concerned. Judge Winmill wrote, “Smith has no expectation of privacy in the telephone numbers that she dials…A person using the telephone ‘voluntarily convey[s] numerical information to the telephone company’ and ‘assume[s] the risk that the company [will] reveal to police the numbers he dialed.'” Furthermore, Judge Winmill asserted, “To the extent that an individual’s telephone data collected by a cell-phone provider is no different than an individual’s power consumption records collected by an electric utility, the Circuit has held that utility customers lack a reasonable expectation of privacy in such business records.” Judge Pauley made a similar claim in his ruling, which stated, “the business records created by Verizon are not ‘Plaintiffs’ call records.’ Those records are created and maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information.”
Conversely, federal district Judge Richard Leon, who famously was the first to grant standing to sue and offer a ruling in a challenge against the NSA’s practices, is concerned with the “nature…of information contained in people’s telephony metadata,” which brings up the second issue of importance: location. Some have argued that by simply being able to view the location of a telephone call, the government can tell a lot about that person and their habits, thus, potentiality violating a reasonable expectation of privacy. As Judge Winmill wrote in his decision, “While there is speculation that the NSA is tracking location, there is no evidence of that, and the agency denies it. Under these circumstances, the Court will not assume that the NSA’s privacy intrusions include location tracking.” Judge Winmill also asserted that since prior case law regarding the applicability of tracking as a “search” under the Fourth Amendment is not applicable, “the weight of the authority favors the NSA.” The NSA has a history of lying (Director James Clapper famously testified on Capitol Hill prior to the Snowden leaks that the NSA was not conducting surveillance on civilians), which is problematic for giving the government, especially in this case, the benefit of the doubt.
Ironically, all three judges (Leon, Pauley, and Winmill) use Smith v. Maryland as the basis for their rulings. As Judge Leon iconically wrote, “the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” 1979 being the year in which Smith was decided indicating that the primitive telephone technology of the 1970’s is far inferior to the technology of today and thus, the Smith ruling should be vacated. Judge Winmill opened his final paragraph by writing, “But Smith was not overruled, and it continues,” relying on Judge Pauley’s decision in December: “…Smith to find that the NSA is not violating the Fourth Amendment. See A.C.L.U. v. Clapper.”
For now, the NSA has survived two legal challenges and lost one. However, as some have pointed out, despite the NSA’s Fourth Amendment success, there are still questions surrounding its statutory legality. As Josh Gerstein of POLITICO wrote, “Winmill’s opinion…does not address an argument put forward by some critics of the program, including some lawmakers: the metadata program violates federal law because it does not fit squarely within the language of the statute used to authorize it.” A presidential task force also discovered the program to be beyond the statutory authority it uses as its legal basis (Section 215 of the Patriot Act.) That challenge has not arisen yet. Once at the circuit level, provided there is no split among the appeals to these three metadata cases, the Supreme Court may be shielded from intervening. However, if there is a circuit split, the Court will almost be obligated to intervene as one portion of the nation cannot be operating under different standards than the other.