The advent of the 21st century brought with it various noticeable sociological changes. The most profound change was the increased role of technology in our daily lives, especially our heightened dependence on the internet. All this continual progress points toward the internet’s inclusion in our most private environments; our families, houses, cars, and phones. This inclusion, aside from making our lives comfortable and more efficient, has become a peephole for big brother to carry out historically unparalleled surveillance.
The controversial addition of section 215 to the Foreign Intelligence Surveillance Act that authorized the Foreign Intelligence Surveillance Court (FISC) to issue orders directing individuals to hand over “tangible things including books, records, papers, documents, and other items” if the FISC was to find that the government had “reasonable grounds to believe that the tangible objects sought are relevant” to an investigation related to protecting the United States against “international terrorism”, has been the subject of much debate ever since Edward Snowden, a National Security Agency (NSA) contractor, decided to blow the whistle on the mass data collection activities of the NSA.
The NSA ‘telephony metadata’ program was sanctioned via a secret order of the FISC, and requires Verizon to produce on an “ongoing daily basis … all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”
The disclosure of this program spurred a nationwide debate on the modern day implications of the fourth amendment, and will possibly mould a context for what we will come to understand as privacy in the next decade.
The assurance from President Obama that no content is recorded under the program notwithstanding, it is important to understand the reason why this mass collection of metadata should be concerning to Americans. The intuitive notion that metadata is somewhat less sensitive than content stems from our misunderstanding and naiveté about metadata. In the current state of technology, it is easier for governments to extract associations and patterns from metadata whose processing can be automated, as opposed to voice data, whose processing still requires some human analysis for accuracy. Analyzing voice data, in fact, takes exponentially more time than analyzing billions of rows of transactional data. The metadata that the NSA has access to can potentially be used for extrajudicial or political ends that are irrelevant to national security.
Our analysis below does not offer an objective conclusion to the question of legality of the NSA program. Instead it represents an effort to provide a sound basis to the reader for understanding the influences of such disclosures on the evolution of modern day perceptions of privacy in the context of the fourth amendment.
The first determination that must be made for fourth amendment coverage is if a particular government interaction with a citizen constitutes a ‘search’. If it does, then the next determination to be made is to analyze if the search is ‘reasonable’.
A government ‘search’ will be found if there is a violation of the “right of the people to be secure in their persons, houses, papers, and effects…”, which is a reflection of the 18th century common-law trespass.
In Katz v. United States, Justice Harlan concluded that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. This gave rise to the Katz test which posits that a violation occurs when government officers violate a person’s “reasonable expectation of privacy.”
In the case of NSA, it is necessary to determine whether the FISC order to telephone companies asking them to handover the call details of their customers to the NSA constitutes a violation of the fourth amendment by taking into account past and current jurisprudence.
Smith v Maryland (1979)
While stating their opinion on the NSA case, Judge Richard J. Leon from the U.S. District Court for the District of Columbia and William H. Pauley III from the U.S. District Court for the Southern District of New York posed opposing opinions on the case and the fourth amendment.
Both of them based their opinion, particularly Pauley, on the 1979 case of Smith v Maryland. In Smith v Maryland, the Supreme Court stated that the installation and subsequent use of a pen register (device used to record the number called from a specific landline) does not constitute a search therefore it does not require a warrant. The argument is that since the pen register is installed in the phone company offices and not in the subjects property, there is no violation of “legitimate expectation of privacy”. According to Smith, by dialing a phone number a person is actually sending that information (the number itself) to the phone company, then by definition that information is no longer private.
In Judge Leon opinion, Smith cannot be used in the context in which the NSA is conducting its metadata collection, even though it seems that the NSA is getting it directly from the phone companies (Verizon in this case).
“Because the Government can use daily metadata collection to engage in ‘repetitive surreptitious surveillance of a citizen’s private goings on, the program implicates the Fourth Amendment each time a government official monitors it… T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,”
– Judge Richard J. Leon, of the US District Court for DC
On the other side Judge Pauley, argues that:
“Telephone users … typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Thus, Pauley wrote, when a person voluntarily gives information to a third party, “he forfeits his right to privacy in the information.”
– Judge William H. Pauley III, of the US District Court for
the Southern District of New York,
US v Jones
In US v Jones, Judge Scalia in delivering the opinion of the court made relevant observations regarding the time period of surveillance activities, notwithstanding their justification – “What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.” The relevance in our case is that the court allows the NSA to store the records for a time period of five years. It is hardly perceivable though that the government will just delete the data after investing billions of dollars in data centers to store and analyze it.
The other relevant outcome of the case is the repeated emphasis that the Katz test adds to the common law trespassory test, and does not repudiate it, while evaluating fourth amendment violations. The question therefore then becomes: Is there a relevant expectation of privacy for the metadata associated with our phone calls that includes call location, duration, numbers of both parties, time and date of the call, and other unique identifiers notwithstanding Pauley’s analysis of Smith v Maryland?
And if there is a reasonable expectation of privacy, and the NSA’s collection activity constitutes a ‘search’, can the government prove the reasonableness of this search, which includes storing the telephone data of every citizen for a minimum of five years?
In any event, and whichever analysis you deem to be more sound, it is quite certain that the disclosure of the NSA surveillance programs have opened up questions about privacy that must be answered before we are overtaken by technology yet again, and are left to be found wanting because of a system of law that is too slow and inefficient to safeguard the interests of the very people it strives to protect from injustices.
The actions taken by the NSA with the specific purpose of obtaining information that would enable the detection of potential threats within the population have deep legal and social consequences that will determine new rules for government overreaching under the banner of security. However, the line between its legality and constitutionality is not clearly drawn in the sand. It is exploring new grounds developed by the technological progress made in recent years since it is clear that the law has not been able to keep up with the frenetic pace with which technology operates. It is important to never lose sight that, besides any personal opinions on the matter, laws are still the rules by which our society functions and preclude our government. Whether the NSA metadata collection is unconstitutional or not is still up for debate. Our legal system will have to deal with it. That system is and will continue to play catch up with technology, but that doesn’t mean that informed opinions have to be exclusive to the courts.
By Ramit Malhotra and Pablo Arvizu