Judge Leon’s Contrarian, Wacky, but Correct NSA #Slatepitch

The law, lawyers, and the court.
Dec. 18 2013 2:26 PM

Judge Leon’s NSA #Slatepitch

The wacky idea that giving away your data creates a greater expectation of privacy.

Judge Richard Leon.
Judge Richard Leon.

Courtesy Suffolk Law Review

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.”

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.

Barry Friedman is the Jacob D. Fuchsberg professor of law at New York University School of Law and the author of The Will of the People.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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