A federal district judge ruled on December 16, 2013 that the National Security Agency (NSA) program which collects information on nearly all telephone calls made to, from or within the United States likely violates the Constitution (read the opinion).
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Judge Richard Leon, an appointee of President George W. Bush. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.
Judge Leon’s 68-page opinion is not a definitive ruling on the constitutional questions in the case, but it does represent a significant legal setback for the NSA’s surveillance program, and it takes account which side he believes is more likely to prevail. More importantly, however, is that this case is likely the first shot across the bow. The case, Klayman v. Obama, has put the government on the legal defensive (where it should be) and will likely ultimately require the Supreme Court to reconsider its Fourth Amendment jurisprudence in the context of 21st-century communications technology.
But what is the precedent here? And, more importantly, how should Fourth Amendment jurisprudence change to better reflect modern technological realities?
The Fourth Amendment and Smith v. Maryland
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures” and avers that “no [w]arrants shall issue, but upon probable cause.” The Supreme Court has interpreted the Fourth Amendment to require that law enforcement procure a warrant prior to conducting a search, unless some exception to the warrant requirement applies (e.g., in Chimel v. California (1969)). The warrant requirement reflects the Court’s determination that a magistrate, rather than a law enforcement officer, is best equipped to determine whether the requisite probable cause exists to classify a search as “reasonable” under the Fourth Amendment.
The warrant requirement, however, only attaches if there has been a “search” within the meaning of the Fourth Amendment. To determine whether a Fourth Amendment search has occurred, federal courts have historically applied a two-prong test first promulgated in Katz v. United States (1967): “[F]irst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.'” Though the language of the test came from a Justice Harlan’s concurring opinion, subsequent Supreme Court rulings have adopted this two-prong test as the standard inquiry to determine whether a search has occurred
Because of this, prosecutors seeking to uphold warrantless searches have frequently argued that a “search” has not occurred within the meaning of the Fourth Amendment. In the context of a warrantless search of a cell phone’s call log, for example, prosecutors have argued that since a defendant has provided the same information to third parties (i.e., the cell phone service provider), he or she does not have a reasonable expectation of privacy in the contents of the call log. This argument is often referred to as the third-party doctrine, and can be traced back to Smith v. Maryland (1979) – a case involving pen registers.
In Smith, investigators had asked the phone company to install a pen register – a device installed at the phone company to record the numbers dialed from a specific telephone – on the home phone of a man suspected of robbing and then harassing a woman by making anonymous phone calls. The pen register confirmed that the calls were originating from the man’s home, and that information was used to help get a warrant to search his home.
The Supreme Court held that the use of the pen register was not a “search” because it was covered by the third-party doctrine: “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In doing so, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” Therefore, according to Justice Blackmun, writing for the majority, the defendant did not have a reasonable expectation of privacy in the numbers dialed.
According to defenders of the NSA’s programs, Smith v. Maryland is binding legal precedent and conclusively establishes the constitutionality of the national security programs at issue. Following Judge Leon’s opinion, for example, several commentators criticized it for insufficient fidelity to Supreme Court precedent. “The largest flaw is that the Supreme Court already considered the constitutional claims at stake here, and Judge Leon simply waves off the relevant precedent of Smith v. Maryland,” according to the Wall Street Journal’s editors. Jeffry Toobin, a prominent legal affairs commentator, has called the notion that individuals do not have an expectation of privacy in the phone numbers they call “well established” after Smith.
Problems With the Third Party-Doctrine
There are three glaring problems with the third-party doctrine, two doctrinal and the other functional.
First, the third-party doctrine does not accurately apply the reasonable expectation of privacy test. Individuals normally expect some measure of privacy in their bank records, phone records, and other third-party accounts, and it defies reality to say that a person “voluntarily” surrenders information to third parties like banks or telephone companies. As Justice Marshall reasoned in his Smith dissent, “[i]t is idle to speak of ‘assuming’ risks in contexts where, as a practical mater, individuals have no realistic alternative.” Justices who cannot see that are simply out of touch with societal understandings.
Indeed, Smith is a good example of the Court misapplying the “reasonable expectation of privacy” test. In Smith, Justice Blackmun, writing for the majority, misapplied the subjective and objective part of the Katz test. Katz requires the court to consider whether a person has an actual (subjective) expectation of privacy, but the Smith court treated this inquiry as an objective question. “[I]t is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret,” the Court reasoned. After misapplying the subjective party of the Katz inquiry, the Court went on to botch the objective component. Justice Blackmun treated the objective part of the Katz test subjectively, universalizing his own opinion as though it were the one true opinion on privacy.
Second, and as a corollary to the first point, many of the Supreme Court cases supporting the third-party doctrine have misunderstood the concept of privacy. The Supreme Court has a tendency to envision individual privacy as an on-off switch and treat exposure to a limited audience as identical to exposure to the world. But this fails to recognize the degrees of privacy that exist, the many shades of gray. As Justice Marshall put the point in Smith, “[p]rivacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.” The third-party doctrine, and the Court’s opinions that established the principle, are often based on an incorrect conception of privacy as total secrecy.
Third, the third-party doctrine grants the government far more power than what many believe is consistent with a free and open society. As Justice Harlan noted in his dissent in United States v. White, our values in a free and open society are “sacrificed by a rule of law that permits official monitoring of private disclosure limited only by the need to locate a willing assistant.” The third-party doctrine, simply stated, is not responsive to life in the modern Digital Age. If third-party services play a role in government surveillance, then the Fourth Amendment will regulate a smaller and smaller portion of that surveillance.
The Functional Role of the Third-Party Doctrine and its Application to the NSA
Despite these concerns, there are functional benefits to the third-party doctrine. The Fourth Amendment’s prohibition on unreasonable searches and seizures is premised on a balance between privacy and security, and the third-party doctrine maintains this balance by prohibiting criminals from using third-party agents to fully enshroud their criminal enterprises in Fourth Amendment protection. If a wrongdoer can use third-parties as remote agents, he can reduce his exposure to public surveillance (this is often referred to as the substitution effect). The third-party doctrine responds to this concern by leaving the Fourth Amendment rule neutral as to the means of committing the crime. If a person commits a crime on his own, the open part of the crime maybe observed by the police without a warrant. If he harnesses a third party, the third party’s involvement is treated as open, resulting in roughly the same degree of privacy protection.
In addition, the third-party doctrine fosters ex-ante clarity in Fourth Amendment rules. Federal courts have demanded (as they should) clear rules on what police conduct triggers Fourth Amendment protection and what police conduct does not. The third-party doctrine fosters Fourth Amendment clarity by matching the Fourth Amendment rules for collecting information with the location of the information collected. In other words, the third-party doctrine guarantees that once information is present in a location it is subject to the same evidentiary rules for collecting other evidence there. Under the Fourth Amendment, rights in information generally extinguish when the information arrives at its destination – the information has been disclosed to its recipient, and any preexisting Fourth Amendment protection no longer exits.
Thus, while there is considerable room for debate on the sufficiency of the third-party doctrine, the doctrine is an essential aspect of the technological neutrality of Fourth Amendment rules. However, because of the serious constitutional problems inherit in the doctrine, third-party cases like Smith v. Maryland should be sharply limited to their facts.
The facts of Smith are inapposite to the present controversy. While the facts of the case were briefly summarize above, here is a more complete explanation of what happened in Smith, directly from the Supreme Court opinion:
On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith.
The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence. The search revealed that a page in petitioner’s phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. (citations omitted)
It is not possible to credibly argue that the facts of Smith are anything like the NSA’s bulk collection of data. Smith is a judicial opinion stemming from the Vietnam era, where Americans were listening to music on eight-track tapes and cellphones were devices we couldn’t imagine ever having. And in Smith, the police had weighty evidence implicating one man and the telephone company voluntarily applied a pen register, which collected analog information about the use of the phone line by that one suspect. Simply stated, the surveillance that was found constitutional in Smith is narrower and shallower than the surveillance now taking place.
The notion that Smith dispenses with our Fourth Amendment in interests in phone dialing information needs to be reexamined. As Justice Sotomayor recognized in United States v. Jones (2012):
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. 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 . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
The Court should step way from an absolutist understanding of the so-called “third party doctrine.” We shouldn’t accept the notion that technology has eroded all expectations of privacy. If Klayman ever reaches the Supreme Court, the justices will have to determine whether Smith needs to change or whether any limits on metadata use should remain with Congress.
“We live in a world today where technology makes it possible to track everyone and every association, over time, indefinitely and cheaply,” Greg Nojeim, a privacy advocate at the Washington-based Center for Democracy & Technology, told the International Business Times. “At some point the Supreme Court will decide whether the Fourth Amendment offers protection to that information or whether the only protection will be statutory.”