The police asked the telephone company to install a pen register — an electronic device that records all numbers called from a particular telephone line – to monitor Smith’s home phone. The device helped police determine that Smith had placed the offensive calls to McDonough, leading to his arrest and conviction.
Smith appealed, arguing that the pen register had violated his Fourth Amendment protection against unreasonable searches and seizures. The case reached the Supreme Court, which validated the government’s use of the pen register.
The 1979 ruling in Smith v. Maryland forms the basis for the government’s claim that its program to monitor every American’s cellphone activity is constitutional. According to the government, the same power that Baltimore police used to collect information from a particular telephone that belonged to a particular individual suspected of having committed a particular crime allows the government to collect all manner of information from every cellphone belonging to people suspected of no crime on the theory that someone somewhere must be doing something wrong.
That line of reasoning suffered a setback on Monday when Federal District Court Judge Richard J. Leon ruled that plaintiffs in the case known as Klayman v. Obama had raised a legitimate constitutional challenge to the NSA’s “Bulk Telephony Metadata Program.” Smith v. Maryland, Leon held, was no defense against legal challenge.
When do present-day circumstances – the evolutions in the government’s surveillance capabilities, citizens’ phone habits and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the government, is now [p. 45].
Leon is a bit of an iconoclast, who has issued high-profile rulings in the past. Earlier this year, he struck down a rule on debit card swipe fees promulgated by the all-powerful Federal Reserve. His is not the last word on that case or on this one. He essentially acknowledged that, issuing an order that the NSA shut the program down and destroy its existing files, but also preventing enforcement of his order until an appeals court reviews it [p. 67].
The case was among those brought as the result of documents leaked by former government contractor Edward Snowden, which made the secret NSA program public. Plaintiffs Larry Klayman, founder of a conservative group called Judicial Watch, and Charles Strange, the father of an American killed in Afghanistan, filed their lawsuit last June, alleging that the government was conducting “a secret and illegal scheme to intercept and analyze vast quantities of domestic telephonic communications” (p. 8) that unconstitutionally captured their phone records.
The government countered that the program was legitimate, authorized by statute and conducted consistent with warrants issued by the secret Foreign Intelligence Surveillance Court (FISC). Judge Leon held that the program could nevertheless be challenged on Fourth Amendment grounds. That amendment, which asserts “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” creates a “reasonable expectation of privacy” [p. 44] for Klayman and Strange, Leon wrote.
The government argued that the NSA program did not violate this expectation, anymore than it had violated Smith’s privacy when it used a pen register to determine that he was harassing the woman he’d robbed. Judge Leon disagreed.
The Court in Smith was not confronted with the NSA’s Bulk Telephony Metadata program. Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones … I am convinced that the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the [the program] constitutes a Fourth amendment search [pp. 46-47].
He cited numerous differences, including the fact that the pen register was used on Smith’s phone for only a few days, while the NSA’s program “will go on for as long as America is combating terrorism, which realistically could be forever!” [p. 46] He also noted the vastly different relationships that the Baltimore police and the NSA have with phone companies.
The relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the government and telecom companies … In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives … 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 [p. 48, emphasis in original].
These records not only are more voluminous and lasting than those reviewed in Smith, they also disclose a good deal more personal information.
Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic – a vibrant and constantly updating picture of the person’s life [p. 54].
And they are unprecedented in scope.
No court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion [p. 58].
The presumed “special need” asserted by the government is to quickly acquire information so as to forestall a potential attack. The government, Judge Leon said, had not substantiated that need.
The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature [p. 61].
All of this led Judge Leon to conclude that the program violates the Constitution’s Fourth Amendment protections.
The program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast [p. 64].
All of this, of course, is the opinion of a single judge. His ruling is subject to appeal. Not all judges share his unstated assumption that the words of the Constitution are to be taken seriously and not contorted to suit society’s shifting tastes. Other jurists may be less skeptical of the government’s claims that they need our phone records to keep us safe. Nor will they necessarily share Leon’s Madisonian sensibilities or his alarm at government’s “gradual and silent encroachments.”
The relentless growth of government power rests on the assumption that it is a beneficent force. Government argues that we profit when it slips its constitutional leash. It can be trusted with power because it wields it to create a better society. It can be trusted with our money because it can do nobler things with it than we would. It can be trusted to micromanage markets because it allocates goods and services more fairly and efficiently than markets do. It can be trusted when it curtails our liberties because it makes us safer and more secure.
The Constitution does not embody this wistful view of government. The Framers set out to curb its ambitions and scope, to restrain its impulses — both malevolent and benign — and to preserve liberty by erecting a wall to limit and contain its power.
The contemporary vision of an activist government that is free to pursue its every good intention ran into the wall of the Constitution this week. Let’s hope this isn’t just a momentary setback.