Many Americans were shocked to learn last week that the National Security Agency is squirreling away data about their telephone calls.
With no warrant and with barely a nod to the Fourth Amendment, NSA apparently has been compiling a massive database that includes “metadata” — every number we called, when we made the call and the call’s duration. The revelation came when Edward Snowden, an employee with top-secret clearance as an NSA contractor, released a secret order requiring Verizon to give all such data to NSA for a three-month period. Subsequent reports indicate the orders are routine. All major phone carriers apparently have been complying with such orders for the last seven years.
While anyone who has paid much attention to comments by current and former members of the Senate Select Committee on Intelligence — especially U.S. Sen. Ron Wyden — suspected NSA was collecting lots of information, most Americans were surprised at the scope.
The revelation raises all sorts of philosophical and political issues, but the legal issue strikes me as fundamental.
To my knowledge, I am not a suspect in any crime. I do not communicate with terrorists. The NSA probably does not know I exist, and certainly does not have probable cause to think I have run afoul of the law. Yet buried in the bowels of its massive hard drives it has information about every phone call I have ever made or received. Doesn’t the U.S. Constitution protect my privacy?
The short answer is no, and it’s Harry’s fault.
In 1979, Supreme Court Justice Harry Blackmun wrote the majority opinion in the case of Smith v. Maryland. Written in a different technological age, it is the decision that opened our phone records to NSA.
The case revolved around an unusually inept crook. Michael Smith successfully robbed Patricia McDonough’s house. He then started calling his victim, bragging of the robbery and making threats. He also drove by her house. The description of his car led police to identify him as a suspect.
The police then went to the telephone company. They had no warrant, but requested that the company install a pen register to record all numbers dialed by Smith. The phone company obliged. Smith promptly called the robbery victim again. Using the pen register data, the police obtained a warrant to search his home. The evidence they found led to his conviction for the robbery.
Smith’s lawyer was understandably aghast. With no warrant and no probable cause, police had secured private information on the phone calls Smith made. If that information was illegally obtained, the lawyer correctly argued, the evidence it led to was inadmissible and the conviction should be thrown out.
The issue for the Supreme Court: Did the police violate the Fourth Amendment by collecting data on Smith’s phone calls?
No, said Blackmun, speaking for a divided court.
The Fourth Amendment protects citizens “against unreasonable searches and seizures.” In determining whether the use of the pen register was a “search,” Blackmun applied long-standing law. A search only takes place if it infringes on a “legitimate expectation of privacy.”
Blackmun argued that citizens had no legitimate expectation that data regarding their phone calls — as distinct from the content of those calls — was private. Everyone recognizes, he explained, that the phone company must receive data in order to complete the call. Indeed, monthly phone bills include all the data compiled by a pen register, reminding citizens that the information is not private.
The dissenting justices had strong arguments, the most persuasive of which was that merely providing data to a third party should not destroy the expectation of privacy. Citizens know that banks have access to their financial secrets, yet that does not mean the government has unfettered access to bank records. Blackmun’s decision, however, remains good law.
Unless the Supreme Court overturns the decision, successful attacks on the constitutionality of the NSA’s collection of metadata are unlikely.
The primary concern expressed by Americans is the scope of the NSA’s data collection. It’s one thing to look at Michael Smith’s phone records, but the idea that NSA has the ability to peak at every phone record of every American is more disturbing. Blackmun’s decision, however, makes the size of the information dragnet irrelevant. Collecting the data is not a “search” under the Fourth Amendment, so it does not matter whether NSA targeted one person or 200 million.
The reasoning of Blackmun’s decision also could provide support for other alleged NSA programs. Remember, the issue is whether the citizen has a “legitimate expectation of privacy.” In an age when everyone from Google to department stores collect data about our electronic communications and uses that information to bombard us with targeted ads, the argument that we have a legitimate expectation that any of our electronic communications are private becomes even weaker than it was in 1979.
The fact that Google, Facebook and others are using the information to make money, whereas the NSA is using the same information to protect us from terrorists, complicates the issue even more.
Whether Congress and the NSA have found the right balance between privacy and security is a thorny issue that must be resolved through the political process. When it comes to metadata, though, Blackmun’s decision defeats arguments that the mass collection of phone data violates the Fourth Amendment.