The problem with normative arguments, even the good ones, coming from lower-court judges like Judge Leon, is that they don’t trump Supreme Court precedent. Those of us who aren’t lower-court judges have greater leeway. We can just up and say it: Smith was wrong the day it was decided, and it is high time for it to go. On the merits, Judge Leon is right to suggest that Smith is an artifact in today’s world.
Smith rests on two empirical assumptions that were deeply dubious even in 1979 and are laughable today. First, the Smith majority said, “[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial.” Really? And second, “even if” Smith “did harbor some subjective expectation that the phone numbers he dialed would not remain private,” that expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” Again, really? How do the justices know what any of us expects to be private? And why aren’t those expectations “reasonable”?
It is the answer to the second question that is most troubling. The justices said (citing an earlier case involving government acquisition of a person’s bank records, United States v. Miller) that whenever someone “voluntarily” gives information to a third party, he “assume[s] the risk” that the information will then be turned over to the government.
Now, the idea that Smith “voluntarily” gave his information to the phone company, “assuming the risk” that the company would, in turn, give it to the government, is a proposition truly begging to be ridiculed. The basic concept of the “third-party doctrine” comes from cases involving government informants. If you blab to someone, you assume the risk they will go tell the police. Fair enough, that may well be true. But there is nothing “voluntary” about using banks and telephones. And in fact, neither the bank in Miller nor the phone company in Smith went to the government and simply handed the information over. Rather, the government came knocking on their doors and demanded private information entrusted to them. The government might be entitled to obtain the information—that’s what warrants are for. But to say that the acquisition of all your information from your Internet provider, cellphone service, or cloud storage is not a search at all, so no warrant or other legal process is required? That’s ... well, that’s nothing but a normative conclusion by the 1979 Supreme Court that the government should be able to get your private information. And it seems to be one with which most Americans do not agree.
Face it: When it comes to handling new technology (like, say, the telephone), the Supreme Court’s record is not so hot. The justices know this. Lately, they have become reluctant to issue any clear legal rules about emerging technologies, simply batting the cases away like a besieged King Kong. In U.S. v. Jones (2012), the justices held that long-term GPS tracking by the government is a search, even if short-term surveillance is not. Bravo, right? Wrong: They could not agree on a coherent rule about when (or how) GPS tracking systems turn it into a search. Four of the justices wrung their hands in a separate opinion, asking Congress to save them from all this impossible line-drawing.
In his NSA decision, Judge Leon tacitly calls out the Supreme Court for its inability to cope with technology, even if the rest of us have to. “While it is true that ‘[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,’ ”—here he quotes City of Ontario v. Quon, a text messaging case from 2010—“phone call and text messaging technology is not ‘emerging,’ nor is ‘its role in society’ unclear. I therefore believe that it is appropriate and necessary to elaborate on the Fourth Amendment implications of the NSA's metadata collection program.”
What Judge Leon’s decision in this week’s NSA case makes clear is that the relationship between privacy and technology is a two-way street. Yes, the technological boom has allowed us to cast bits and bytes of our personal lives about like so much confetti. But without some nifty technology of its own, the government still could not scoop up all our information, much of which we have never made public in any way, to assemble a revealing picture of our personal lives whenever it wants. As Judge Leon writes: “The 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.”
Herein lies the truth of Judge Leon’s Slatepitch. Yes, technology has caused us to live less privately. Yes, we are giving more of our data out. But, if we want to actually live in the 21st century (doesn’t that already sound quaint?), we don’t have much choice about communicating via third-party hosting. And that fact has only made us much more wary about where all our data goes. The last thing any of us reasonably expect is that the government will use some stealthy technology of its own to invade that which we wish to keep private. Isn’t that the very point of the hornet’s nest surrounding the NSA?
Contrary to what you often hear from one-sided partisans on both sides of the issue, there are some aspects of the NSA’s data collection that present truly complicated constitutional questions. But whether sucking in all this data without suspicion or a warrant is a “search” in the first place is not one of them. Nobody’s idea of “reasonable” or “expectation of privacy” “assumes the risk” of being held upside-down by the state to empty your pockets and see what falls out. You should be able to call whom you like, write whom you like, and store what you like in the cloud, privately. Yes, that’s a “normative” argument. But it rests on far more accurate empirical assumptions about what we as American believe than the malarkey the Supreme Court tried to sell us back the 1970s. Judge Leon isn’t buying it. And he’s right.