National Intelligence Office's Top Lawyer Fires Off Spirited Defense Of Bulk Surveillance, Third Party Doctrine
from the "in-order-for-programs-to-remain-legal,-I-must-view-it-this-way" dept
Robert Litt, General Counsel for the Office of the Director of National Intelligence, has been given space at the Yale Law Review Journal to publish his citable article “Why Everyone’s Wrong About the Fourth Amendment.” Or, as Litt would like us to refer to it:
Preferred Citation: Robert S. Litt, The Fourth Amendment in the Information Age, 126YALE L.J. F. 8 (2016), http://www.yalelawjournal.org/forum/fourth-amendment-information-age.
To be fair, Litt never says we’re all wrong about the Fourth Amendment and the Third Party Doctrine. He only says Judge Leon is. Judge Leon was the single district court judge who found the bulk collection of phone metadata to be unconstitutional.
Technically, we’re not all wrong, but we may as well be, because no court has found the collection unconstitutional save Judge Leon’s and Litt doesn’t agree with it. Several paragraphs follow, but the crux of Litt’s argument is nothing new: it’s just 1979’s Smith v. Maryland decision all over again.
I do not think that Judge Leon’s efforts to distinguish Smith were successful. First, while Judge Leon is certainly right that metadata can be very revealing of personal activities, there is nothing new about that insight. Justice Stewart dissented from the decision in Smith itself in part because he recognized that metadata “easily could . . . reveal the most intimate details of a person’s life.” The point of Smith was not that metadata is innocuous, but that you have chosen to reveal it to a third party. To use an analogy, if you give a document to a third party, you have lost your expectation of privacy in that document, whether it is a laundry ticket or a confession of mortal sin. Moreover, the fact that cell phones today contain a lot of information beyond metadata does not seem relevant when the government did not actually search or collect any of that other information.
[I] find it hard to understand the alchemy by which information that you choose to disclose to a third party develops an expectation of privacy because you have chosen to disclose a lot of that information. That seems counter-intuitive to say the least. For all of these reasons, if you accept Smith’s holding that there was no expectation of privacy in the telephone metadata in that case because it had been voluntarily exposed to a third party, you can’t conclude there was an expectation of privacy in the metadata in this case.
The thing is that while people may voluntarily agree to hand over certain information to service providers (and it’s safe to say the “agreement” is anything but “voluntary”), they do not naturally assume the service provider will share this — no questions asked or warrants demanded — with anyone else who comes asking for it. That’s where the reliance on Smith v. Maryland fails. “Choose to disclose” is much different than “forced to disclose.” And it’s not as if it can truly be said phone users relinquish all ownership of that data. It’s specifically tied to them and they “share” it with service providers — which if that’s how Litt wants to interpret the interaction, he should at least be honest and give both parties some sort of ownership, along with the privacy expectations that go with it.
A lot of the rest of it is given over to Litt’s displeasure that courts have even granted plaintiffs standing in bulk metadata program lawsuits. Whatever the Third Party Doctrine doesn’t shut down, the plaintiffs’ inability to claim anything more than theoretical rights violations by programs the government refused to discuss publicly should have seen the cases tossed immediately. He agrees the framework is there for massive violations of privacy but these actually damaging acts simply never occurred. But abuses did occur and were covered up by the NSA, nearly resulting in the program being shut down back in 2008 by FISC Judge Reggie Walton.
This fact undercuts Litt’s assertions in defense of the now-curtailed program.
For several years, and with judicial authorization, the NSA collected metadata in bulk about U.S. phone calls from telephone companies for counterterrorism purposes. The metadata was kept in secure databases. It could only be accessed by a few specially trained NSA analysts, and then only to identify telephone numbers in contact with so-called “seed” numbers as to which there was a reasonable and articulable suspicion of an association with terrorism—such as, for example, a number used by a suspected terrorist.
First off, the program was accessed by more than just a “few” specially trained analysts. It was a free-for-all until the FISA Court shut that down. Second, the reasonable, articulable suspicion standard wasn’t always applied to searches of the database. For a period of time, NSA analysts ran searches against an “Alert List” of numbers the FISA Court had never approved for use — i.e., no RAS declaration was made by the NSA to support additions to the list used for searches of the bulk data. Some of these numbers were added simply because they were two or three hops away from an RAS-supported number, meaning there was nothing supporting the use of these “connected” numbers as new “seeds” for database searches and contact chaining.
What Litt does get right is that the NSA has done itself no favors with its decades of opacity.
Where we fell short was on the third leg of the stool, transparency. There would have been less damage to the Intelligence Community from the disclosures of the last couple of years had we been more forthcoming about our activities before those leaks. Obviously, intelligence activities have to be conducted with some degree of secrecy, and the same is true of some law enforcement activities. Specific methods and targets of surveillance have to be protected. But if we don’t discuss what we are doing and how we are regulating it even in general terms, we cede the field to those who are hostile to intelligence activities.
And, perhaps inadvertently, Litt lets us know President Obama is just as big a fan of the NSA as his predecessor was.
A decision by Congress to authorize certain activities under certain controls, made after discussion and debate, should be a strong factor in support of the reasonableness of those activities. Congress is going to have a number of opportunities to address these issues. For example, Section 702 expires at the end of 2017, and there are continued efforts to modernize the Stored Communications Act. It may be too much to hope that in the current political environment, Congress could have a dispassionate and comprehensive discussion about such weighty issues, but the Executive Branch would welcome such a discussion.
Given the selection of presidential frontrunners, I have no reason to believe Litt’s assessment of the situation will be any less accurate by the time the Section 702 expiration date rolls around.