The Patriot Post® · The Snowden Chronicles and Another NSA Smackdown
A series of chain reactions that began in May with the release of highly classified information by former NSA contractor Edward Snowden continued this week. Snowden’s leaks have revealed the sheer ubiquity and volume of information gathered and stored by the government, and this latest backlash arrives in the form of a stunning collective setback for the intelligence community, notably, the National Security Agency (NSA). Judge Richard Leon of the U.S. District Court in Washington, DC, issued a preliminary injunction barring the agency’s bulk collection of phone records, specifically, the so-called “metadata” associated with an individual phone call.
Metadata includes such information as the phone number called, the time the call was made, the duration of the call and, potentially, the location from which the call was made. Judge Leon ruled that the NSA’s metadata collection violates the Fourth Amendment’s proscription on unreasonable searches. However, the judge hedged his decision somewhat by staying his injunction order, pending an almost certain government appeal on the case.
By way of background, Congress first authorized bulk collection of phone records through the Patriot Act, which it passed in the wake of the 9/11 attacks. Although special “FISA” courts were later established in 2006 to provide judicial oversight and authorization for intelligence collection operations, the enormity of the data collected renders this oversight largely moot: A single “authorization” to collect data can render millions upon millions of metadata records.
The controlling law up to this point has been the Supreme Court’s 1979 opinion in Smith v. Maryland, in which the court ruled that collection of metadata regarding a phone call did not violate the Fourth Amendment’s bar to unreasonable searches. Accordingly, critics complain that Judge Leon failed to follow the Supreme Court by not recognizing that metadata falls outside the Fourth Amendment’s “unreasonable search” prohibition, as annunciated in that decision, and that the judge is employing judicial activism in his ruling. One critic – a former assistant U.S. attorney – even went so far as to call the judge’s ruling “comically lawless.”
However, Judge Leon’s central point – roughly paraphrased – is that the methods, conditions and assumptions that rendered Smith are apples-and-oranges apart from today’s “privacy-expectation” landscape, and that the Smith court – which decided a case involving a single phone record on a single individual – could not possibly have foreseen the ways in which aggregate metadata is currently being used to violate all of America’s “reasonable expectation of privacy,” and thus Smith is largely useless in determining the constitutionality of a governmental action fundamentally different from the one in that landmark case.
Additionally, where Smith gave the government authority to access metadata only in a limited manner (“limited data on outgoing calls”) on one individual in a single case, the government has extended that authority over the years – especially after the Patriot Act – so that it has no limits, has a duration of at least several years and extends to every person in the U.S. Information gathered from billions of cross-referenced data files is of a fundamentally different quality and character from data gathered from a single-line “pen register,” as in Smith.
Moreover, the NSA and other intelligence agencies have even further extrapolated the authority granted in Smith by dragooning every major phone company into involuntary service. To quote Judge Leon, “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.” Indeed, in Judge Leon’s mind – and ours, for that matter – there is only one word for this constitutional overreach: unsatisfactory.
Finally, we note that the most tangible result of Snowden’s intelligence leak has been this: The leak, along with the government’s subsequent damage-control reaction, has resulted in the tacit acknowledgement that metadata is almost certainly being collected on every phone in America. Thus the government has inadvertently conferred standing upon every U.S. citizen to levy a constitutional suit against it. Accordingly, expect a lot more of these types of suits in the future, independent of Judge Leon’s controversial decision.