Don't be fooled by this bad argument in defense of the NSA

[Vattel]

Here is a common but really bad argument in defense of the NSA: In Smith v Maryland (1979), SCOTUS ruled that the collection of telephone metadata by the government without a warrant was not prohibited by the US Constitution. Thus, the NSA’s bulk collection of telephone metadata is not unconstitutional.

The premise of the argument is true: In Smith v Maryland, the police asked a telephone company to allow them to use a pen register to determine if the suspect in a robbery was making obscene and threatening phone calls to the victim of the robbery. They were thus able to learn what phone numbers were being called from the suspect’s home. The Court judged that because the robber had no expectation of privacy in the telephone metadata that was collected using the pen register (let alone a reasonable expectation of privacy), the police did not violate the suspect's Fourth Amendment rights.

But that case is so different from the case of the NSA’s bulk collection of telephone metadata that the precedent set by the former may well have little relevance to the constitutional issues raised by the latter. Consider these five differences (most of them shamelessly stolen from the judge’s opinion in Klayman v Obama):

1. The pen register in the Smith case was used for only a couple of days. The NSA has stored years of phone metadata.

2. The pen register in the Smith case was used to collect telephone metadata concerning a single individual who was already a criminal suspect. The NSA collects metadata on millions of people who are not criminal suspects.

3. In the Smith case, the police made a special request for the cooperation of a telephone company. By contrast, the NSA and telecom companies are, in effect, operating a joint intelligence-gathering operation. To quote from the Klayman v Obama opinion, the “Supreme Court itself has long-recognized a meaningful difference between cases in which a third party collects information and then turns it over to law enforcement [as in Smith v Maryland] . . . and cases in which the government and the third party create a formalized policy under which the service provider collects information for law enforcement purposes, . . . with the latter raising Fourth Amendment concerns.”

4. In 1979, one could learn relatively little about someone by looking at his telephone metadata. But especially because of the introduction of the cell phone, today telephone metadata can provide a relatively great amount of information about phone users.

5. The use of the pen register in Smith raised no first amendment concerns, but the storing of a huge quantity of metadata by the NSA arguably dampens free speech by creating a fear that the NSA could use its information against those whose political views are perceived to be dangerous.

It is debatable whether these differences or others justify the judge’s conclusion in his opinion in Klayman v Obama that the bulk collection of metadata by the NSA is unconstitutional. Nevertheless, clearly it is a mistake to suppose that in Smith v Maryland the Supreme Court in effect settled the question of whether the bulk collection of telephone metadata by the NSA violates the Fourth Amendment.

http://apps.npr.org/documents/document.html?id=901802-bulkcollectionruling

[Thinkingabout]

1. How do you define a pen register?

[Vattel]

2. A pen register is an electronic device that records all numbers called from a particular telephone.

[Thinkingabout]

4. Is this device capable of recording voice?

[msanthrope]

5. No. That would be a wiretap, which needs a warrant. nt

[jeff47]

3. If the ruling was as specific as your post claims, you'd have a point.

The problem is the ruling is not at all specific. It doesn't say it's OK for a few days. It doesn't say only number, time and duration are OK. It doesn't say only one person is OK. It does not say suspicion is required.

Unfortunately, the SCOTUS ruling was broad. It says all telephone metadata is not private.

Now, the differences you cite are a reason for the SCOTUS to consider another case, so that they can be more specific. But the NSA gets to follow the broad ruling until the SCOTUS rules again.

[ConservativeDemocrat]

6. The Supreme Court makes these kinds of judgments all the time

In Knowles v. Iowa that police cannot search a driver or passengers after ticketing them for routine traffic violations. However they can still know where you are driving, how fast you are driving, and whether you are driving erratically. If they see you go to a suspected crack-house, they can use that information for further investigation, and indeed may create a warrant out of it.

The same thing goes for mail. What's inside the envelope is protected. Knowing that you sent mail at all, and to whom it was sent, is not.

Basically, as soon as you give something to someone else with the expectation that they will use it somehow (as you do when you enter a URL into a browser, which is sent to various servers, or a phone number which is used to identify where the call is going to), then that information is no longer "private". It doesn't quality as your "persons, papers, and effects" protected by the fourth amendment.

This is the line the Supreme Court has drawn and I doubt it will change its interpretation.

- C.D. Proud Member of the Reality Based Community

[Thinkingabout]

10. Good explanation

[Vattel]

12. Your view is too simplistic.

Even tracking your car's movements over a long period of time without a warrant has been ruled a Fourth Amendment violation. And the government's warrantless use of infrared detectors to detect heat coming off of a house was ruled a Fourth Amendment violation. Certainly the mere fact that I give someone something to use for some purpose does not preclude my having a reasonable expectation of privacy that might preclude the government from accessing it without a warrant.

[Vattel]

8. My post doesn't claim that the ruling in Smith v Maryland was specific.

I hope the courts do find the NSA bulk collection to be unconstitutional. But we will see.

[jeff47]

9. Then your post is incoherent.

If the ruling is broad, why is that citing ruling a "bad argument"? According to your post, because of all these specifics....which aren't relevant since the ruling was broad.

So either the ruling wasn't broad, and those differences matter, or the ruling is broad and your post makes no sense.

The way you disarm the Smith case is to claim the differences justify a new SCOTUS case (which is true, IMO). But the NSA gets to follow the Smith precedent until that happens.

[Vattel]

13. You are missing the point.

Either the bulk collection of telephone metadata by the NSA is constitutional or it is not. The bad argument is to think that because of the ruling in Smith, it is obvious or easily established that it is constitutional.

[jeff47]

20. It is established as constitutional, because the Smith ruling is broad.

It can become unconstitutional with a more specific ruling in a new case.

[Vattel]

29. You are mistaken. It is already unconstitutional IMHO and apparently in

the opinion of the judge in the Klayman v Obama case as well. The judge in that case is not asking whether he should change what the NSA has been is doing from being constitutional to being unconstitutional. He would rightly be judged incompetent if he framed the issue in that way. He is asking whether what the NSA has been doing is constitutional. It appears that in his view the answer is no.

[jeff47]

31. That judge isn't the SCOTUS.

As a result, he doesn't get to overrule the SCOTUS. This judge's ruling conflicts with the Smith decision, but he can't overrule the Smith decision. That conflict is grounds for an appeal, which the SCOTUS may take as a reason to revisit the Smith decision.

If you'd prefer, your argument means Gay Marriage is unconstitutional. Because there are federal judges who ruled it so. They were overruled, but their rulings still exist.

[Vattel]

32. Once again you misunderstand me, and you attack a straw man.

Obviously the judge in that case can't overrule SCOTUS. He has no intention of doing so. He believes that opinion in Smith v Maryland does not justify the conclusion that what the NSA has been doing is constitutional. If SCOTUS hears the case, my bet is that at least some of the more liberal justices will agree with him. I hope the majority agrees.

[jeff47]

33. Then what was your argument?

Obviously the judge in that case can't overrule SCOTUS. He has no intention of doing so. He believes that opinion in Smith v Maryland does not justify the conclusion that what the NSA has been doing is constitutional.

Yet he was unable to articulate why the Smith decision does not apply. Just that the situation is different because of things that are not relevant to the Smith decision, such as scale of collection - there's nothing in Smith that makes scale relevant.

If SCOTUS hears the case, my bet is that at least some of the more liberal justices will agree with him. I hope the majority agrees.

IMO that's the wrong target. Because even if the SCOTUS decides suspicion is required or blanket collection is unconstitutional, the phone companies still sell the data to third parties. Meaning that the information is not at all private, even if the government can't use it in a prosecution.

What we need is new law from Congress, so that we can restrict both the government's and the phone company's use of the data.

[jeff47]

22. It is exactly on point.

The ruling is all phone metadata is not private.

What was collected? Phone metadata.

If it's not private, the rest of the details do not matter. No suspicion doesn't matter - it's not private. Having more data in the metadata doesn't matter - it's not private. Large numbers of people doesn't matter - it's not private.

The differences are a reason to bring a new case to the SCOTUS to try and get a more specific ruling. But the existing ruling is exactly on point.

[Thinkingabout]

7. So this would be very similar to passing through an EZ pass lane on a toll road.

I am not sure it would be an incorrect ruling by SC. I would like to see specific section in the Constitution where recording telephone data or passing through a toll booth, etc is not permitted.

[Recursion]

11. NSA or no, metadata is not private

That's why the NSA story got a big yawn from me back when it looked like it was just metadata (it has since been shown to be more). Even if the NSA were dismantled, however, people should be aware that metadata is bought, sold, and traded regularly. It's not "your" data to begin with, it's your service provider's.

[Vattel]

14. Similar arguments were once made that wiretapping couldn't violate the Fourth Amendment because

you don't own the telephone wires or the electronic signals travelling on them.

[Recursion]

15. And you should, in general, assume criminals are listening to your calls

Particularly cellular calls.

[Vattel]

16. Sure, my privacy is threatened by criminals.

I guess I'm not sure how that relates to the issue here, which is whether the NSA's bulk collection of telephone metadata is constitutional or not.

[Recursion]

18. The principle behind Smith is that things that are already non-private in fact...

... aren't private legally. I'm reminding people that whom you call is not, in point of fact, private. In addition to criminals, telco's sell that information.

[Vattel]

19. I see. But that principle has already been eroded.

Where you drive is publically observable and hence not private. And yet the courts have decided that without a warrant, the government may not track your car's movements for an extended period of time.

The principle is obviously a bad one in any case. The fact that something is not private due to its being observed by private parties does not mean that the government (without a warrant) can observe it without violating a reasonable expectation of privacy. Suppose that criminals are listening to all of my cell phone conversations and so I know that what I say on the phone is not private. Clearly it would not follow that the government could begin eavesdropping on my cell phone calls without a warrant.

[Romulox]

23. Oh, stop pretending like this particular issue has been adjudicated and settled.

That's not how SCOTUS precedent works. Until there is a case "on all fours" with this one, we are all merely reasoning by analogy, and it is therefore ignorant to assert that the matter is clearly settled and finalized. It isn't, and it couldn't be, since the particular issue has not been adjudicated.

Therefore, stop attempting to talk with assumed authority; it weakens, rather than strengthens your argument.

[Recursion]

24. I'm talking about Verizon, not SCOTUS

Verizon acts like it's their data. Mostly because it is.

[Romulox]

25. Verizon isn't the authority in this matter. nt

[hootinholler]

28. So how much for your metadata?

What office in Verizon do I call to order it?

Nice to see you finally accept it's not just metadata.

[Romulox]

21. It depends. Is it DiFi's meta-data? That would be *different*. nt

[Tierra_y_Libertad]

26. If it is "legal", why was the NSA keeping it's collection secret?

And, it's legal, why are they upset with Snowden for revealing it?

[jeff47]

27. Because it's usefulness goes down when it's existence is revealed

If we put ourselves into the mindset of someone hunting "bad guys", having the "bad guys" know phone metadata is being captured means they don't use the phone. For example, bin Laden did not use a phone while he was in Pakistan, because he knew a phone could be used to track him down.

As a result, the NSA-types want people to be generally unaware that call metadata is not private, so that the "bad guys" keep using the phone. So they kept it secret.

As for getting upset, Snowden leaked a lot of other programs too. They appear to mostly be upset about those.

[Maedhros]

30. The point of the OP is that the situation in Smith v. Maryland

is not analogous to the NSA's activities.

The metadata collection in Smith v. Maryland was limited to a single individual already suspected of a crime. One cannot apply that logic to the collection of metadata for millions of individuals, none of whom are suspected of a crime.

Sure, some will want to, because it makes the painful cognitive dissonance go away.

[struggle4progress]

35. It doesn't matter at all what individual citizens think of this interpretation

of Smith v Maryland: the fact is that this is how the FISA court seems to interpret Smith v Maryland

Changing citizens' minds about this is beside the point: one needs to get Congress to understand and acknowledge the potential for abuse of vast metadata collection and to get Congress to impose further constraints

Why must the action come from Congress? Why not from the Courts or from the Executive?

I think it can't come from the Courts because IIRC only SCOTUS can review the FISA court's decision, and the FISA judges are all appointed by the Chief Justice, currently the very conservative and rather young Roberts, who will probably be Chief Justice for an extended period. SCOTUS answers to no electorate at all, except indirectly through Congress by threat of impeachment, which is too blunt a tool to use here

And anything the current Executive can do with a penstroke a later Executive can undo with a penstroke; moreover, a campaign to pressure the Executive requires national organization

Congress on the other hand funds the whole thing. The House has primary budgetary authority and is up for election every two years. Moreover, both House and Senate have constituencies that are considerably more local than the national constituency of the President: one can pressure a House member by organizing in the member's district; and one can pressure a Senator by organizing in the state

So if you want to fight back on this aim at Representatives and Senators: have a few definite actions you want them to take; and have a handful of factually-accurate soundbites you can use