And now for something completely different: In an astonishing opinion, Judge Leon of the DC District Court has held that the NSA’s bulk collection of telephony metadata violates the Fourth Amendment and has enjoined the entire program (stayed pending appeal). In this post, I’ll just describe Judge Leon’s reasoning. In another post later today, I’ll comment on the persuasiveness of its analysis (or lack thereof, in this case — Judge Leon’s opinion has several major flaws, in my view).
According to Judge Leon, the United States Supreme Court’s decision in Smith v. Maryland is no longer good law because “present day circumstances” are so unlike the facts of Smith v. Maryland that the Supreme Court’s legal reasoning “simply does not apply.” That is, Ludge Leon compares the facts of the one case, Smith, with the facts of the NSA program as a programmatic whole, and he finds that the facts of the entire NSA program are so different from the facts of Smith that the Supreme Court’s legal reasoning need not be followed.
Judge Leon relies on several factors to conclude that the Supreme Court’s reasoning in Smith is no longer valid:
1) In Smith v. Maryland, the surveillance occurred over just a few days and the data was not stored for long, whereas the NSA conducts long-term surveillance and could keep doing so “forever!” (emphasis in original).
2) In Smith, the government requested the phone company to install the surveillance tool, whereas in the case of the NSA, there is a cozy, long-term relationship.
3) Datamining of information obtained is better today than it was when Smith was decided.
4) Most importantly, people use phones today a lot more than they did in 1979, when Smith was decided. Back when Smith was decided, only about 90% of households had telephones. But today, almost every person has a phone. As a result, people today have an “entirely different” relationships to phones than they did in 1979. This has led to greater expectations of privacy than existed when Smith was decided, and Smith no longer applies
Because of these four factors, Judge Leon concludes, he “cannot possibly” follow the Supreme Court’s decision in Smith v. Maryland. Instead, Judge Leon concludes that individuals have a “very significant expectation of privacy” against the aggregated collection and He then turns to the next Fourth Amendment step, reasonableness, and concludes that the NSA’s bulk metadata program is unreasonable because it does not survive a cost/benefit balancing: It is invasive, and yet Judge Leon does not think the NSA telephony metadata program is sufficiently effective to satisfy the Fourth Amendment.
Judge Leon recognizes that his holding conflicts with the reasoning of other district courts, but he expresses confidence that he is correct and that James Madison would be “aghast” at the NSA’s telephony metadata program.
Finding the entire NSA metadata program unconstitutional, Judge Leon enjoins it, but he stays his order pending appeal to the DC Circuit.