NSA: All Of Your Base Are Belong To Us!

Often times headlines about court opinions are sensational.  When you actually read the opinion and study the legalese, you realize that it’s not as bad as the media is making it sound.

Unfortunately that’s not the case with the recently declassified FISA court opinion, which gives us a glimpse of the legal reasoning behind the FISA Court’s decision to authorize the NSA’s mass phone call data collection program.

The opinion is in many ways, a direct result of § 215 of the Patriot Act, which establishes an incredibly low, broad standard for “relevance.”  This allows Judge Eagan, writing for the Court, to give us this gem:

Because it is necessary to obtain the bulk collection of a telephone company’s metadata to determine those connections between known and unknown international terrorist operatives as part of authorized investigations, the production of the information sought meets the standard for relevance under Section 215[.]

But what about the Fourth Amendment?  It is not enough that a statute authorizes the U.S. Government to do something.  It also has to pass Constitutional muster!  Doesn’t it violate reasonable expectations of privacy for the Government to be collecting data on literally everybody’s phonecalls?

No worries.  Our old friend, Smith v. Maryland, the zombie case that refuses to die, is on the scene:

Eagan also concluded that the program does not violate the Fourth Amendment’s ban on unreasonable searches and seizures. Pointing to the 1979 Supreme Court decision Smith v. Maryland, she argued that people do not have an expectation of privacy for the metadata they share with their phone company.

This is extraordinarily lazy legal reasoning.  Smith v. Maryland, first and foremost, was based on a misapplication of Fourth Amendment doctrine, as accurately summed up by Jim Harper and Randy Barnett:

Justice Blackmun inaccurately applied [“reasonable expectation”] doctrine. The question whether a person has an actual (subjective) expectation of privacy is a question of fact, but the Court treated it as an objective question, denying the possibility of such an expectation. (“[I]t is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”) Having misapplied the subjective part of the Katz test, the Court appears also to have botched the objective part. Justice Blackmun marshaled arguments for the position that an expectation of privacy is unreasonable, but made no comparing or contrasting mention of counterarguments. Most likely, he treated the objective part of the Katz test subjectively, universalizing his own opinion as though it were the one true opinion on privacy around telephone dialing information. (citations omitted)

This is a notorious mistake that judges make all the time.  They claim that the Fourth Amendment relies on Objective indicia of reasonableness.  Then they go on—often unwittingly—to state their own subjective opinion about what constitutes a reasonable expectation of privacy.

This is obviously backwards.  In order to determine whether something is objectively reasonable, you have to be able to point to something outside of your own mind to demonstrate that the thing in question is reasonable.  If you can’t do that, then by definition, you can’t demonstrate objective reasonableness.

But the FISA court can be forgiven for this, since Smith v. Maryland is well-established law, and stare decisisthough “not an inexorable command,” nonetheless remains a strong consideration when deciding case law.

The real reason why the FISA court’s legal reasoning is lazy is because they are attempting to apply a 35-year old case in the vacuum of judicial chambers.  Smith v. Maryland did not authorize blind collection of metadata from every single U.S. phone call in the country.  It in fact could not have done any such thing, since telcom data of the type and scope that exists today did not exist in 1978.

Nor did the Smith court declare such collection to be outside the scope of reasonable expectations of privacy.  The very fact that Edward Snowden’s leaks created so much controversy should indicate that the NSA’s mass data collection program does not comport with an “expectation [of privacy] that society is prepared to recognize as reasonable.”

Yet lazy judges continue to cite Smith v. Maryland so that they don’t have to do the hard work of reasoning their way through the application of old precedents to contemporary circumstances—or, for that matter, the admittedly tricky work of examining public opinion for judicially discoverable indicators of what society is prepared to recognize as reasonable in 2013, rather than 1978.

So what’s the simplest way to sum up this legal opinion for the average person?  This seems adequate:

“All your base are belong to us.”  — U.S. Government
“That’s cool.”  — FISA Court

And that’s basically it.

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