Buried deep in Judge Richard Leon’s breathtaking decision invalidating the NSA’s telephone metadata program is a #slatepitch. Leon concludes, contrary to the views of virtually everyone else in our digital world, that we have a greater expectation of privacy in the data we readily hand over to third-party providers today than we had back in the 1970s. As our colleague Emily Bazelon wrote Monday, “That’s the most debatable proposition in his opinion.” Debatable it is, but—like some percentage of all good Slatepitches—it’s probably also true.
It had better be true. If Judge Leon’s groundbreaking opinion is to be upheld on appeal, it is crucial that he is right about this one proposition. The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Supreme Court has said that if we don’t have a legitimate expectation of privacy in what the government grabs, it is not a search at all. Period. Unfortunately for Judge Leon (and for anyone else who doesn’t want all their telephone metadata vacuumed up by the NSA), long-standing Supreme Court precedents state unequivocally that is not a search for the government to collect evidence we’ve already given over to third-party providers. That’s why Judge Leon felt compelled to make a normative argument to support his conclusion. And while he is normatively correct that our expectations of privacy should be greater than they were back in the days of rotary phone booths, his claim still sounds paradoxical.
The most relevant case here is the Supreme Court’s 1979 decision in Smith v. Maryland. In Smith a guy snatched a woman’s purse, and she started to get weird phone calls. So the police had the phone company install a pen register to trace her incoming calls, without obtaining a warrant, which ultimately incriminated the defendant. The Supreme Court decided that Smith had no reasonable expectation of privacy in the numbers he dialed from his home phone. (If that strikes you as odd, sit tight; we’ll get back to it in a moment.) No reasonable expectation of privacy means there was no search, which means there was no constitutional protection. The Smith decision looked to be one heck of an obstacle for Judge Leon to get around, and so he worked overtime—and not particularly successfully in the eyes of some—to distinguish the NSA’s ginormous warrantless wiretapping scheme from collecting the numbers called from just one person’s phone in Smith. That’s also why he went normative.
Judge Leon sets up the question before him as follows: “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?”
You guessed it—his answer to that question turns out to be “now.” Leon’s opinion is a cornucopia of facts about all the new ways we use phones, suggesting that we think—or would like to think—our information is absolutely private, way more so than back in the day (1979).
The money line in Judge Leon’s opinion is this one: “Whereas some may assume that these cultural changes will force people to ‘reconcile themselves’ to an ‘inevitable’ ‘diminution of privacy that new technology entails,’ ”—he is quoting Justice Samuel Alito here—“I think it is more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable.” That’s the Slatepitch: the counterintuitive insistence that, as a society in 2013, the more we give information away to anyone and everyone, the more privacy we expect in our data.
And what about the fact that Americans really don’t seem to care about giving all their data away? Leon writes in a footnote (it’s the footnotes in his opinion that really ring the change) that it's the government’s—and especially the Supreme Court’s—fault: We have been conditioned by our legal regime not to care. “The experiences of many Americans—especially those who have grown up in the post-Smith, post-cell phone, post PATRIOT Act age—might well be compared to those of the ‘refugee from a totalitarian country, unaware of this Nation’s traditions, [who] erroneously assume that police were continuously monitoring’ telephony metadata. Accordingly, their ‘subjective expectations obviously could play no meaningful role in ascertaining ... the scope of Fourth Amendment protection.’ ”
And then Judge Leon rather dramatically concludes that because our catawampus ideas about privacy can no longer be helpful to the debate over what a reasonable expectation of privacy might look like, "a normative inquiry” is what’s called for.
So there it is, sports fans. That’s the moment you want to watch on instant replay. When a Republican-appointed federal judge tells you he is going to make a “normative” determination about what reasonable expectations of privacy should be, that’s a signal that he is going to step out. In some quarters that’s called “judicial activism.”