How Defenders Of NSA Dragnet Surveillance Are Stretching A 1979 Ruling To Pretend It's Constitutional
from the not-quite dept
Defenders of the legality of the NSA’s dragnet approach to surveillance often point to the concept of the third party doctrine, and specifically to the case Smith v. Maryland, in which the Supreme Court said that it was okay for law enforcement to get phone records without a warrant because the information was held by a “third party” and the original caller had no expectation of privacy in data given to that third party. We’ve questioned the legitimacy of the third party doctrine for years, and folks like Al Gore and Alan Grayson have discussed why it’s a stretch to say that the ruling applies to the NSA hoovering up all phone call data.
Jim Harper, who has spent more time than anyone I know thinking about the third party doctrine over the years, has a good post explaining some of the history and why it’s a huge stretch to say that Smith v. Maryland means the NSA can scoop up all data:
On the question of whether surveillance of every American’s phone calling is constitutional, Lee notes how the government and its defenders will rely on a 1979 case called Smith v. Maryland. In that case, the government caused a telephone company to install a pen register at its central offices to record the numbers dialed from the home of a suspected robber. Applying doctrine that emerged from Katz v. United States (1967), the Court found that a person doesn’t have a “reasonable expectation of privacy” in phone calling information, so no search occurs when the government collects and examines this information.
It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order.
More importantly, however, Harper points out that the Supreme Court’s more recent decisions suggest that it is moving away from the third party doctrine as established in that Katz case that the court relied on for Smith v. Maryland:
And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.
In other words, the facts of the NSA dragnet are extremely different than the facts in Smith v. Maryland, and the Supreme Court itself appears to at least be less willing to immediately give the stamp of approval to any collection of “third party” data as somehow being immune from the 4th Amendment. Defenders of the NSA spying like to just say “Smith v. Maryland” and act like that settles everything. However, it’s far from clear that it applies at all in this case.