Is the NSA's Bulk Telephony Meta-Data Program Constitutional: PART II

01/06/2014 12:12 pm ET | Updated Mar 08, 2014

In my last post, I described the evolution of Fourth Amendment doctrine to set the stage for analysis of the constitutionality of the NSA's bulk telephony meta-data program. As we saw, in thinking about the Fourth Amendment the initial question turns on the meaning of the word "search."

To briefly review, a "search" historically was understood to be a physical intrusion into a physical space. The paradigm was a search of someone's home or briefcase. In the 1960s, the Supreme Court decided that, in light of modern methods of invading privacy, that definition was too narrow. It therefore re-defined a "search" for Fourth Amendment purposes as an effort by the government to obtain information about an individual that violates society's "reasonable expectations of privacy." Under this new definition, wiretapping, which had been held not to be a "search" under the traditional definition, was for the first time brought within the scope of the Fourth Amendment.

But that gave rise to a new question: How should "reasonable expectations of privacy" be defined? As a baseline, the Court assumed that methods of obtaining information that were known to the Framers and were not thought by the Framers to be "searches" should not be deemed "searches" under the new definition. Rather, the Court's primary concern was with new methods of invading privacy that, if left outside the scope of the Fourth Amendment, could dramatically shrink the degree of privacy that individuals had historically enjoyed.

For example, if X and Y are sitting on a park bench having a conversation and an undercover police officer sits down on the bench next to them in order to overhear their conversation, this was not traditionally thought to be a "search" within the meaning of the Fourth Amendment. This was so because there was no invasion of any physical space owned or controlled by X and Y, and because X and Y knowingly chose to have their conversation in a public place in front of a stranger. By having their conversation in such circumstances, they indicated an indifference to the privacy of the conversation and therefore had no reasonable expectation that their conversation was not being overheard. Not surprisingly, the Framers did not consider this a "search." Now suppose that, instead of having an undercover officer sit on the bench, the police use a parabolic microphone to overhear the conversation from a rooftop half-a-mile away. What do you think?

With this background, we can return to the Supreme Court's 1979 decision in Smith v. Maryland, which I discussed in my last post. In Smith, the police, without probable cause or a warrant, but suspecting Smith of a crime, went to Smith's telephone company and installed a device called a "pen register," which enabled the police to obtain a list of the phone numbers Smith dialed in the next few days. That information turned out to be useful to the government in convicting Smith of a crime.

The Supreme Court held that the use of the pen register was not a "search" within the meaning of the Fourth Amendment because (a) it did not invade any physical space owned or controlled by Smith, and (b) it did not violate Smith's reasonable expectations of privacy because he had knowingly and voluntarily exposed his calling information to his telephone company.

As I explained in my last post, the federal judge who held the bulk telephony meta-data program constitutional -- Judge William Pauley -- reasoned that, in collecting the calling data of tens of millions of Americans from their telephone companies and storing that data for a period of five years, the government was doing essentially the same thing it had done in Smith, only on a larger scale. In Judge Pauley's view, Smith therefore resolved the issue.

The federal judge who held the program unconstitutional -- Judge Richard Leon -- argued that the massive scale on which the modern program operates distinguishes it from the rudimentary practice at issue in Smith. In his view, Smith does not resolve the issue. As it turns out, Judge Leon could draw significant support from a majority of the Justices of the Supreme Court for this conclusion.

In its 2012 decision in United States v. Jones, which involved the use of GPS to track an individual driving his car on the public streets, five Justices questioned the relevance of Smith in a world of advanced technology. For example, Justice Sonia Sotomayor observed in her separate opinion in Jones:

it 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 [others] for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Similarly, Justice Samuel Alito, in another separate opinion joined by Justices Ginsburg, Breyer, and Kagan, declared that "we must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." Noting that modern technology can seriously undermine our traditional expectations of privacy, Justice Alito argued that the Fourth Amendment must take account of such changes.

Thus, a majority of the Justices in the Jones case clearly indicated an interest in considering how the principle recognized in Smith should apply in a very different technological society from the one that existed in the 1970s. For this reason, Judge Leon was on solid ground in concluding that Smith did not necessarily control the constitutionality of the bulk telephony meta-data program.

Let me now say a word about what the Fourth Amendment should mean in this context. At the outset, I should note that I thought that Miller (the bank records case I discussed in my last post) and Smith were wrong when they were decided. Although it makes sense to say that a person has no reasonable expectation of privacy in what he knowingly and voluntarily exposes to the public, that principle should never have been applied to the facts of Miller and Smith.

It is one thing to say that a person who knowingly has a conversation in front of a stranger on a public bench has no reasonable expectation of privacy in the conversation; it is another thing entirely to say that a person has no reasonable expectation of privacy in information he discloses to his bank or telephone company in order to live reasonably in our modern world.

I therefore agree with the dissenting Justices in those cases who argued that, although the underlying principle was right, it should not have been applied to bank records or telephone calling records. As Justice Thurgood Marshall observed in his dissenting opinion in Smith, whether an individual's privacy expectations are "reasonable" should depend "on the risks he should be forced to assume in a free and open society." The plain and simple fact is that when we engage in financial transactions or make phone calls, our knowledge that our bank or telephone company has access to that information hardly suggests an indifference on our part to the privacy of the information.

But even taking Smith as a given, Judge Leon was right that the use of the pen register in Smith was a far cry from the NSA's bulk telephony meta-data program in terms of the scale of its invasion of individual privacy. This comes back to the impact of technology. The use of a pen register is time-consuming, fact specific, and costly. As a practical matter, the government can use it in only a handful of situations. The knowledge that the government can use a pen register without probable cause and a warrant therefore has almost no effect on the average person's expectations of privacy or behavior. We do not hesitate to make phone calls because of the infinitesimal risk that the government might be using a pen register to track our calls.

Modern technology has changed this completely. Today, the government can collect and store data on all of our telephone calls, whether we've done anything wrong or not. Justice Alito made the point nicely in his opinion in Jones. In discussing police surveillance of an individual's movements in his car, Justice Alito distinguished sharply between a police officer physically following an individual's car, on the one hand, and the use of GPS to track the movements of millions of individuals, on the other. The former, Justice Alito maintained, does not violate reasonable expectations of privacy; the latter does.

The critical distinction, Justice Alito reasoned, was that, for practical reasons, the police cannot physically "monitor and catalogue every single movement of an individual's car for a very long period." The traditional form of surveillance -- following the person -- is realistic only in extraordinary circumstances. The cost and inefficiency of that means of surveillance is itself a critical safeguard of individual privacy. The advent of GPS, however, has changed the situation dramatically, and individuals, he concluded, do have a reasonable expectation of privacy that the police will not use this new technology without restraint to track their every move.

A goal of the Fourth Amendment, Justice Alito emphasized, is to ensure that new forms of technology do not constantly shrink our traditionally expectations of privacy. Without that principle, the evolution of a "Big Brother" government could do serious damage to the liberty, privacy and dignitary interests of the individual that are essential to a free society.

As Judge Leon insisted, this same principle is implicated in the difference between the crude and inefficient use of a pen register, which was upheld by the Court in Smith, and the NSA's mass collection and storage of telephone calling data at issue today.

But even this takes us only so far. If the bulk telephony meta-data program constitutes a "search," we must still decide if it is an "unreasonable" search, for that is what the Fourth Amendment forbids. That will be the subject of my next post.