The Surveillance State. NSA Telephony Metadata Collection: Fourth Amendment Violation
By Marjorie Cohn
Edward
Snowden, who worked for the National Security Agency (NSA), revealed a
secret order of the Foreign Intelligence Surveillance Court (FISC), that
requires Verizon to produce on an “ongoing daily basis … all call
detail records or ‘telephony metadata’ created by Verizon for
communications (i) between the United States and abroad; or (ii) wholly
within the United States, including local telephone calls.”
The government has
admitted it collects metadata for all of our telephone communications,
but says the data collected does not include the content of the calls.
In
response to lawsuits challenging the constitutionality of the program,
two federal judges issued dueling opinions about whether it violates
the Fourth Amendment’s prohibition on unreasonable searches and seizures.
Judge Richard J. Leon, of the US District Court for the District of Columbia, held that
the metadata program probably constitutes an unconstitutional search
and seizure. Judge William H. Pauley III, of the US District Court for
the Southern District of New York, determined that it does not violate the Fourth Amendment.
Leon’s opinion
Leon wrote, “Because the
Government can use daily metadata collection to engage in ‘repetitive
surreptitious surveillance of a citizen’s private goings on,’ the
‘program implicates the Fourth Amendment each time a government official
monitors it.’” The issue is “whether plaintiffs have a reasonable
expectation of privacy that is violated when the Government
indiscriminately collects their telephony metadata along with the
metadata of hundreds of millions of other citizens without any
particularized suspicion of wrongdoing, retains all of that metadata for
five years, and then queries, analyzes, and investigates that data
without prior judicial approval of the investigative targets. If they
do—and a Fourth Amendment search has thus occurred—then the next step of
the analysis will be to determine whether such a search is
‘reasonable.’” The first determination is whether a Fourth Amendment
“search” has occurred. If so, the second question is whether that search
was “reasonable.”
The judicial analyses of both Leon and Pauley turn on their differing interpretations of the 1979 U.S. Supreme Court decision, Smith v. Maryland. In Smith,
a robbery victim reported she had received threatening and obscene
phone calls from someone who claimed to be the robber. Without obtaining
a warrant, the police installed a pen register, which revealed a
telephone in the defendant’s home had been used to call the victim. The
Supreme Court held that a person has no reasonable expectation of
privacy in the numbers dialed from his telephone because he voluntarily
transmits them to his phone company.
Leon distinguished Smith from
the NSA program, saying that whether a pen register constitutes a
“search” is “a far cry from the issue in [the NSA] case.” Leon wrote,
“When do present-day circumstances—the evolution of the Government’s
surveillance capabilities, citizens’ phone habits, and the relationship
between the NSA and telecom companies—become so thoroughly unlike those
considered by the Supreme Court thirty-four years ago that a precedent
like Smith simply does not apply? The answer, unfortunately for the Government, is now.”
Then Leon cited the 2012 Supreme Court case of United States v. Jones,
in which five justices found that law enforcement’s use of a GPS device
to track the movements of a vehicle for nearly a month violated a
reasonable expectation of privacy. “Significantly,” Leon wrote, “the
justices did so without questioning the validity of the Court’s 1983
decision in United States v. Knotts,
that the use of a tracking beeper does not constitute a search because
‘[a] person travelling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to
another.’” Leon contrasted the short-range, short-term tracking device
used in Knotts with the constant month-long surveillance achieved with the GPS device attached to Jones’s car.
