Civil liberty advocates and privacy proponents rejoiced recently when a district court judge in Washington D.C. ruled that the NSA's "almost Orwellian" metadata collection program violated the Fourth Amendment. On Friday, those same advocates felt the all too familiar frustration of a novel legal issue being decided by two different courts, and to make things worse, the second just may be correct, legally, if not from a policy standpoint.
U.S. District Court Judge William H. Pauley III, after spending many pages lauding the government's anti-terrorism efforts, and making forceful policy arguments in favor of the NSA telephone metadata collection program (equally forceful, though opposite to, Judge Richard J. Leon's decision), concluded that controlling law supported the notion that the program was fully constitutional, as there is no privacy interest in the phone numbers that a person dials, and that mass collection is far less egregious than inspection of an individual's phone records, as was the case in the controlling Supreme Court opinion.
Judge Leon: Not Constitutional (Headed to D.C. Circuit)
Judge Leon's opinion was interesting, as policy-wise, it jibbed with what many Americans are feeling nowadays: the NSA has gone too far. Legally, however, it was a shaky opinion. Judge Leon declined to apply 1979's Smith v. Maryland precedent, where the Supreme Court held that an individual has no privacy interest in data (phone numbers) voluntarily transmitted to a third-party (the phone company). Leon argued that phones are used differently today than 1979 and that there was no proof that the "almost Orwellian" mass collection of data had helped anti-terrorism efforts.
Judge Pauley III: Constitutional (Headed to Second Circuit)
Contrary to Judge Leon's opinion, Judge Pauley readily accepted the government's proffered evidence that their program had helped to stop terrorist plots in the past, and even surmised that had the program existed, the government would have had a better chance at stopping 9/11. Whether one agrees with those arguments or not, the controlling precedent, as applied by Pauley, does seem clear: phone records are not private. Cell phone or landline, we're still transmitting phone numbers to a third-party.
As Judge Pauley noted, "[T]he Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases."
The general consensus seems to be that these cases are "set-up" for SCOTUS review. That seems like a bit of a stretch at this point -- both cases still have to go through the Circuit Courts of Appeals first, where they could end up with the same verdict on appeal, and the Supreme Court could let more of these cases "play out" in the lower courts before intervening -- but with a flood of anti-NSA litigation just beginning, from tech companies and individuals, it does seem that at some point, the Supreme Court justices, who don't even use email, will face the task of weighing the Fourth Amendment against NSA surveillance.
Will it be these cases? Had the issue been other metadata, such as geolocation data (GPS or cell-tower based) pulled from callers' cell phones, maybe Smith v. Maryland wouldn't dictate Judge Pauley's outcome, but unless the Supreme Court has an urge to overrule itself, or the D.C. Circuit is feeling equally averse to controlling precedent as their district court counterpart, there is no guarantee that these two cases are headed for First Street.
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