Monday, December 16, 2013

Some Initial Thoughts on Klaymon v. Obama

Today, Judge Leon of the U.S. District Court for District of Columbia ruled that the plaintiffs in that case have a substantial likelihood of success in their argument that the NSA telephone metadata collection violates the Fourth Amendment.  While my initial review of the decision has been cursory, my initial views are that (1) Judge Leon is over reading the Supreme Court's recent decision in United States v. Jones in finding the plaintiffs had a reasonable expectation of privacy in the meta data, but (2) the entire NSA metadata program demands a new framework to judge Fourth Amendment cases.

In arguing for the program, the government put great weight on the 1979 Supreme Court decision in Smith v. Maryland, which held that a defendant had no reasonable expectation of privacy in the numbers dialed from his phone because he voluntarily transmitted them to the telephone company.  The Court concluded that giving such information to a third party eliminated any reasonable expectation of privacy.  This was a pretty extraordinary holding because it meant that Fourth Amendment protections did not even apply to request for telephone numbers called.  And, it was this case that the FISA Court relied on--heavily--in upholding the NSA metadata collection.  In an effort to get around this pretty unforgiving precedent, Judge Leon relied on the Supreme Court's 2012 decision in United States v. Jones.

In Jones, the Supreme Court held that the placement of a GPS tracking device on a car for the purpose of observing a defendants movements over a long length of time violated the Fourth Amendment.  Judge Leon argued that this decision shows that the Court take a more narrow view of its Fourth Amendment precedents.  While a short-term use of a beeping device might be permissible, its longer use is not.  Similarly, Judge Leon argued, a short term use of a pen register does not permit the wholesale collection of all telephone  metadata.

The problem, however, is that in making this argument, Judge Leon relies only on the concurrences of Justices Alioto and Sotomayor.  The actual court decision by Justice Scalia does not even address the issue of reasonable expectation of privacy at all.  And it certainly did not challenge the rule that information given to a third party is not protected by the Fourth Amendment because of the absence of a reasonable expectation of privacy.  Instead, the Court's opinion relied solely on the fact that unlike the instances in which beeping devices had been allowed in the past, in this instance law enforcement officials committed a trespass in the placement of the GPS device itself.  It was this trespass--and not the absence of any reasonable expectation of privacy--that was the basis of the majority decision.

While I think both that Judge Leon went too far in his reliance on Jones and that the holding in Smith strongly supports the NSA position, there is also cause for concern that the "third party" rule of Smith could be the exception that all but eliminates any "reasonable expectation of privacy" in light of modern technology.  As Justice Sotomayor expressed well in her concurrence:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps . . .some people may find the "tradeoff" of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable," . . . and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.
In short, Judge Leon was likely wrong under the law as it now stands, but the case itself may be the very vehicle for the Supreme  Court to do what Justice Sotomayor suggests--revisit the third party disclosure exception articulated in Smith.

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