Since leaked documents revealed that the government is collecting the numbers, locations, and durations of virtually all phone calls in the U.S., supporters and opponents of the program have gone head-to-head over one fundamental question: is this collection permissible under the Constitution? The answer may ultimately come down to a 1979 Supreme Court case about a sleazy Baltimore thief.
In 1976, a Baltimore woman named Patricia McDonough was robbed by a man who then continued to make threatening and obscene phone calls to her home. When police zeroed in on a suspect named Michael Lee Smith, they had the phone company place a recording device, or pen register, on his phone line to see what numbers he called. Sure enough, he called McDonough’s number. In court, Smith argued that the use of the pen register without a warrant violated his right against unreasonable searches. But the Supreme Court disagreed. Unlike what is actually said on a phone call, the court held that the numbers a person dials aren't protected under the Fourth Amendment.
The opinion has been lambasted by privacy advocates and law professors ever since -- but as civil liberties groups begin to challenge the surveillance program in court, Smith v. Maryland may one day determine the fate of the National Security Agency’s metadata collection program.
Before Smith’s case, the Supreme Court had established that in order for the Fourth Amendment’s restriction on “searches” to apply, there had to be a “reasonable expectation of privacy.” In Smith, the Court found no such reasonable expectation exists for the phone numbers people dial because in order to place a call, a person must share the number they are dialing with a third-party: the phone company. By this logic, no search took place and there was no need for a warrant. In this way, the case ultimately took all metadata issues outside the bounds of the Fourth Amendment. Congress, not the courts, was now in charge of regulating access to metadata.
Of course, the Smith case and Fourth Amendment issues aren't the only objection to the metadata program, though they are the main constitutional objection. In a case brought by the American Civil Liberties Union last month, the group argued that in addition to the Fourth Amendment, the program is also problematic under First Amendment rights to free expression and association. A separate objection is that the program is simply illegal, though not unconstitutional. The government’s legal justification for the program is USA Patriot Act Section 215, known as the “business records” provision. The courts could decide that Section 215 was never intended to allow bulk collection. However, this wouldn’t necessarily end the program the way a constitutional challenge would since same collection could simply be authorized under a different statute. But if this kind of bulk, metadata collection is going to end for good, that change will almost certainly involve Smith v. Maryland.
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Over the last month, government officials have repeatedly cited this case to prove that collecting the metadata on Americans’ calls without a warrant is legal.
“Now, one of the things to keep in mind is under the law, the Fourth Amendment does not apply to these records,” James Cole, deputy attorney general, said during a hearing before the House Intelligence Committee on June 18. “There was a case quite a number of years ago by the Supreme Court that indicated that toll records, phone records like this, that don't include any content, are not covered by the Fourth Amendment because people don't have a reasonable expectation of privacy in who they called and when they called.”
The next day, Robert Mueller, the outgoing director of the FBI, appeared before the Senate Judiciary Committee and tried to make the same point, but received pushback from Sen. Mike Lee, R-Utah, a constitutional lawyer and former Supreme Court clerk.
“As you well know better than most, in Smith v. Maryland, [metadata is] not protected by [the] Fourth Amendment,” Mueller said to Lee. “The proposition that was espoused by the Supreme Court in Smith v. Maryland is applicable today.”
A conservative Republican with a libertarian streak, Lee’s response mirrored what many in the civil liberties community have argued is the flaw in applying the Smith case to the current metadata collection program.
“I think it's important to remember also that the precedent you cited is, of course, decades old and it didn't deal with the sheer volume of metadata that we're now talking about. The technologies that are at issue now didn't exist then -- certainly weren't even contemplated then,” Lee said. “And the more you aggregate large quantities of metadata potentially on every single American citizen and you give someone within the executive branch of government the power to search all of that, you do give them a pretty broad view into the lives of the American people. The more data you get, the more you add to that metadata, even if any one of those data points might be itself constitutionally insignificant. Don't you think you start to approximate a point at which you start to breach a reasonable expectation of privacy?”
That is, essentially, the argument groups such as the American Civil Liberties Union have put forward in challenging the constitutionality of the program: that Smith shouldn't exempt this kind of metadata collection from constitutional scrutiny because the NSA’s surveillance now is so much broader, longer term and potentially more revealing than a simple pen register was on a single person’s phone line in 1976.
Further, the ACLU and other advocates believe the Supreme Court takes their side and holds that Smith isn't a carte-blanche for vast metadata collection efforts. The basis for that argument is a 2012 Supreme Court case called United States v. Jones. In 2004, the FBI and the Washington police department began investigating a D.C. nightclub owner named Antoine Jones on suspicion of drug trafficking. As part of the investigation, they attached a GPS device to Jones’ wife’s car. Jones was found guilty. But last year the Supreme Court threw out the conviction, holding in a unanimous decision that the attachment of the GPS device to an individual’s car and using it to track the car’s location does constitute a “search” under the Fourth Amendment.
“The surveillance that was found unconstitutional in Jones is narrower and shallower than the surveillance now taking place,” said ACLU attorney Jameel Jaffer, speaking on the metadata program during a public workshop hosted by the Privacy and Civil Liberties Oversight Board last Tuesday. “At least five justices were of the view that the surveillance infringed a reasonable expectation of privacy.”
Jaffer’s point is correct in spirit, but the facts are more complicated. Legally, the Jones decision didn't conflict with Smith v. Maryland because the majority decision wasn't decided under the “reasonable expectation of privacy” test. Instead, the justices reached their conclusion based on invasion of private property -- the car -- which isn't an issue in the metadata situation. But Jaffer accurately noted that five justices in two concurring opinions believed that “longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Supreme Court Justice Sonia Sotomayor went even farther: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on,” she wrote in her concurrence, one that no other justice signed on to.
Reading the tea leaves in Jones, Supreme Court expert and SCOTUSblog co-founder Tom Goldstein has argued that while Sotomayor’s lonely concurrence is “sweepingly pro-privacy,” the Jones case overall “signals to the government that in many respects its investigatory efforts are not subject to the Fourth Amendment.”
“The Constitution isn’t indifferent to the government’s accumulation of vast quantities of sensitive information about Americans’ lives,” Jaffer said at the workshop. But under Smith v. Maryland, and under the Jones case, it is.
“Smith really is the guiding principle” on these surveillance issues, said Nathan Sales, an expert in national security law at George Mason University School of Law. “So on the question of what does the Constitution currently say about the [metadata] program, I think the defenders have the better argument.”
The legal consensus is the NSA’s metadata collection program is legal under Smith, but not necessarily that it should be.
“The problem with Smith v. Maryland is that it is a judicial opinion that stems from the days from the Vietnam era, we were listening to music on eight-track tapes, cellphones were Star Wars-type of things that we couldn’t imagine ever having, so the issues are real,” said M.E. Bowman, a former legal counsel at the FBI. “I think it does have to be reexamined. [There] have to be some qualifications put on it.”
The pushback to this idea, however, is that revisiting Smith is too tricky for the courts and should be left up to Congress. This is the position of Orin Kerr, a law professor at the George Washington University Law School and perhaps the Smith case’s most famous defender.
“I think it’s a hard argument to make because you run into the line-drawing problem of what can the government do and what can’t it do, what’s protected and what’s not protected,” Kerr said. Take a scenario where the Supreme Court says you can’t collect records of the entire country, “so what the NSA does next is they have two programs, one conducts surveillance on one half of the country and one on the other half of the country,” he said. “The hard part is what limit do you impose. It’s a hard question for courts to impose an answer. It’s easy for Congress to impose an answer.”
If a case over the metadata program ever reaches the Supreme Court, the justices will have to make that call -- 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,” said Greg Nojeim, a privacy advocate at the Center for Democracy & Technology, a Washington-based nonprofit. “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.”