Judge Says the NSA Can Look at Your Phone Records Because They’re Not Yours

Today a
 federal judge in New York
rejected the American Civil Liberties Union’s challenge to the
National Security Agency’s routine collection of information about
every telephone call placed in the United States. U.S. District
Judge William H. Pauley conceded that “such a program, if
unchecked, imperils the civil liberties of every citizen,” since
“such data can reveal a rich profile of every individual as well as
a comprehensive record of people’s associations with one another.”
But he said he was bound by the Supreme Court’s ruling in the 1979
case
Smith v. Maryland, which held that the Fourth
Amendment does not apply to telephone metadata indicating who calls
whom, when, and for how long. “This Court consistently has held,”
the justices said in Smith, “that a person has no
legitimate expectation of privacy in information
he voluntarily turns over to third parties.” Under this
precedent, Pauley said, no one has a Fourth Amendment right to stop
the government from examining his telephone records, which are not
really even his:

The ACLU’s pleading reveals a fundamental misapprehension about
ownership of telephony metadata….

The business records created by Verizon are not “Plaintiffs’
call records.” Those records are created and maintained by the
telecommunications provider, not the ACLU. Under the Constitution,
that distinction is critical because when a person voluntarily
conveys information to a third party, he forfeits his right to
privacy in the information….

The collection of breathtaking amounts of information
unprotected by the Fourth Amendment does not transform that sweep
into a Fourth Amendment search.

Pauley seems uncomfortable with this conclusion. He emphasizes
that the government uses the phone call records sparingly, uses
them only to investigate terrorism, needs a comprehensive database
for that purpose, follows “rigorous minimization procedures,” and
unnecessarily compromises innocent people’s privacy only by
accident. Under the “third party doctrine” enunciated in
Smith, none of those debatable points matters, because the
government’s perusal of information you voluntarily share with
someone else cannot possibly implicate your right to be free from
unreasonable searches and seizures.

“Whether the Fourth Amendment protects bulk telephony metadata
is ultimately a question of reasonableness,” Pauley says toward the
end of his 54-page
opinion. Not really, at least not in the sense of balancing the
government’s interests against an individual’s privacy claim.
According to Pauley’s reading of Smith, the
relevant question is whether you have undergone a search when
the government looks at your phone records. The Supreme Court says
you haven’t, so neither reasonableness nor the Fourth Amendment
enters into it.

U.S. District Judge Richard Leon, who issued a
preliminary injunction against the NSA’s phone record dragnet
last week, tried to escape the implications of
Smith by arguing that the information at issue in
that case (the numbers dialed by a robbery suspect over a two-day
period) was much narrower than the information collected by the NSA
(metadata for every phone call made during the last five years).
Leon also argued that the ubiquity of cellphones has dramatically
increased the volume of metadata and therefore the potential for
invading people’s privacy. But as I
noted in my column last week, the sweeping terms of the
third party doctrine do not seem to leave any room for such
considerations.

As the ACLU pointed out, five justices indicated in the 2012
case U.S.
v. Jones that the sheer volume of information
collected can make a constitutional difference, impinging on a
legitimate expectation of privacy that would not be implicated by a
smaller amount. But the Court’s decision in that case, which held
that using a GPS device to track a suspect’s car for a month counts
as a search under the Fourth Amendment, hinged on the physical
intrusion required to attach the device. The Court has not yet held
that collecting the same sort of information through methods that
do not require such a trespass implicates the Fourth Amendment, let
alone overturned Smith or renounced the third party
doctrine.

It really should, especially since phone records are just one
small part of the personal information that the doctrine leaves
vulnerable to government snooping. According to the Court, unless a
statute says otherwise, the government is free to collect, examine,
and analyze any information about you that is not stored on your
own property. That includes cellphone location data, email, text
messages,  photos, videos, journals, Web searches and
browsing histories, financial and medical information, and
literally anything else you have stored on a remote server or a
computer in someone else’s possession. All of that information gets
only as much protection as legislators decide to give it—which in
some cases is
a lot less than you might think.