My Cato Brief in Support of The Electronic Privacy Information Center’s Challenge to NSA Data Seizures

Yesterday, Jim Harper of the Cato Institute and I filed an amicus brief in support of  The Electronic Privacy Information Center (EPIC)’s challenge to the constitutionality of the NSA’s blanket seizures of private phone records.  Here is the summary from the Cato website:

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel. Cato senior fellow and Georgetown University law professor Randy Barnett joins Jim Harper on this brief urging the Court to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation. If the Court finds that the statute allows this sweeping a warrant, then it must consider the flat Fourth Amendment bar against general warrants, as well as the unreasonableness of collecting all information about Americans’ phone calls for speculative future investigations.

The brief urges the Court to reconsider Smith v. Maryland and the “third-party doctrine,” which purports to deny Fourth Amendment protection for information people have shared with others. In Smith, police officers learned that a suspected burglar was calling the house of the woman he had stolen from. They asked the telephone company to install a pen register on the burglar’s phone, which the phone company did voluntarily. The Court found that this was reasonable and did not require a warrant. It does not follow from the result in Smith that mass surveillance of all Americans’ phone calls is similarly reasonable. With this data, the government can draw inferences about the intimate relations, family life, legal counsel, business negotiations, and medical treatments of wholly innocent individuals. The Court should either distinguish or reverse Smith and reject or reconsider the third-party doctrine, as Justice Sotomayor suggested in the 2011 Jones decision.

Extraordinary appeals like this are rarely granted, and future cases will probably decide the fate of the NSA’s secret mass surveillance programs, but this brief informs the Court and the legal community about the issues. The Solicitor General, who ordinarily might ignore such an appeal, felt obligated to file a response to it.

You can download the brief here.

UPDATE: Conor Friedersdorf dissects, passage by passage, President Obama’s defense of the NSA data programs here:  “His tone on Friday was inappropriately dismissive, while the substance was misleading at best and mendacious at worst.”

Also on Friday, the White House released a White Paper defending the legality of the NSA data seizures here.  It would have been nice to have had this document — or the FISA court opinion upholding the program — before drafting our brief, but the Solicitor General will now be filing a reply to the EPIC petition.  So we will soon learn the official U.S. position on why the program is legal and constitutional.  This should serve to focus the legal debate and I am glad that the SG has decided to formulate its opinion for the Court.