By Mark Esposito, Guest Blogger

When the faceless analyzers locked deep inside the NSA finally get around to divining just how privacy died in this country they won’t start with Friday’s decision by Judge William Pauley, III  in  ACLU v. Clapper finding the NSA data mining of American’s communications perfectly constitutional or even go back to the horrible events of September 11, 2001 when fear ran freedom from the playing field. No, the truth is that privacy began to die farther back in an obscure case during the nation’s bicentennial year. As most of us were gathering up our red, white, and blue bunting, buying fireworks, and marveling at the first technological salvo of the commercial computer age known as The Cray-1 , a robbery case in Maryland would form the first cancerous cell in the assault on the body politic’s right to be left free from government snooping.

ACLU v. Clapper

Before we get there, it’s helpful to examine Judge Pauley’s decision to grant a free pass to the government to gather so-called  telephony meta-data from almost every phone call or any other electronic communication you’d care name in this country in the seemingly limitless war on terror. Pauley’s opinion flows from a case filed by the ACLU alleging a violation of both constitutional and  statutory law by the NSA in trapping metadata from everyone’s phone including the ACLU’s. In that opinion, Pauley pays homage to that Cerberus of the federal courthouse –standing to sue — ruling that even the ACLU has standing to file suit when its own phone information is trapped. If it’s you or me we’d better be prepared to put our name on the Complaint ’cause public interest groups aren’t quite as court-worthy as they used to be and they need to show that the challenged government action involves a “concrete, particularized and actual or imminent” injury. After hurdling that altitudinous yet vaporous wall you’d better be prepared to  prove  that the injury that your government is spending billions to deny, refute, and then minimize is “fairly traceable to the challenged [government] action” and that the action is “redressable by a favorable ruling.”

Got all that? Just to punch your ticket to play the legal lottery you have to prove the Sword of Damocles is falling (or that the thread is snapping) and that your head can be saved if the court can get to the spot fast enough to deflect the deadly dagger. Oh, and you have to see that in a room filled with total darkness brought to you — and zealously guarded — by your official host who offered you the fateful seat. Standing to sue is easy in our “litigious society,” see?

Granted standing to sue your government by the judge you then have to cross the  moat filled with legal crocodiles — one known as the Doctrine of Sovereign Immunity. Judge Pauley pulls out this dead-in-your-tracks stopper when discussing  the statutory “remedies” available to protect you when the government goes too far in gathering everything about you and your caller including time, location, duration, and the network of numbers you and your caller decide to call both before and after the federally scrutinized conversation with your wife about pot roast or roast chicken for dinner. Oh, no content interception that we know of —  just everything else.

For years, silly lawyers like me fighting that 16th Century crocodile actually relied upon Section 702 of the Administrative Procedures Act (APA) that waived sovereign immunity for all suits  which sought to shine a constitutional searchlight on the actions of administrative agencies so long as no one asked for money damages from the Treasury. Hell, we even believed  Justice Stevens in Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) when he explained that passing the APA  demonstrated a ” strong presumption that Congress intends judicial review of administrative action.”  Nope, not when it comes to the protections against government intrusion into your lives via electronic snooping.

Judge Pauley divines that the express waiver of Section 702 is “overcome” by not any language of Congress to the contrary, but simply from his interpretation of the “inferences of intent” gleaned from the “statutory scheme as a whole.” And you thought all those ancient Oracles died at Delphi. Splitting that chicken, the Judge decided that the ACLU was barred by the Doctrine of Sovereign Immunity from pursuing statutory protections like declaratory judgment. In fact, even if we ever got to the merits, the statute affords no protection for misuse of mined personal data and presto, changeo you have no right under the law passed by the people we fund and elect to challenge anything that the NSA does in the  collection or use of the data under the Act. So look, ACLU, the judge seemed to say, ” you lose on sovereign immunity grounds and even if I did get to the merits of your case you’d lose those statutory claims anyway.”

Well then, certainly there is one shining knight available to champion individual rights against claims of the government’s abuse of its citizens. Yes, surely that document encased in glass at the National Archive promises a right of redress against government violating the laws they create.  The Fourth Amendment protects us against the government spying on our lives without a reasonable belief that a crime is being perpetrated or at least a warrant signed by a judge and based on objective “probable cause.” We learned that in civics class and then some of us learned it again in graduate school. Well, you’d think the Fourth Amendment would immediately come into play when another federal judge, after reviewing the same NSA program, called it an ‘indiscriminate’ and ‘arbitrary invasion” of privacy that would have left the founders of the nation “aghast.”

“But not so,” says Judge Pauley. “There’s precedent, you see,” and it’s plastered all over the government’s motion to dismiss. The precedent was a once obscure robbery case in Maryland.

Smith v. Maryland

Early March is a little chilly in Baltimore but the sun is usually bright and the breeze coming off Inner Harbor is awfully inviting. And so it was for Patricia McDonough in 1976 when her purse was snatched by small-time hood, Michael Lee Smith. Patricia got a look at the crook and the 1975 Chevy Monte Carlo he was driving. She gave the police a description and filed a report realizing her chances of seeing her purse or her money again were “remote” as the courts like to say. Unfortunately, her ordeal was not over as Smith decided to taunt his victim in  series of threatening and obscene telephone calls which drew ire from Patricia and the Baltimore PD alike. Now Smith came to resemble more a sexual predator than small-time mugger.  In one call, Smith asked Patricia to go onto her porch while he drove the Monte Carlo slowly by her home. A police surveillance team later saw the same Monte Carlo driving slowly in Patricia’s neighborhood  and traced the license plate back to Smith.

Vowing to catch the jerk, the police, sans warrant, approached the telephone company about employing a crude –by today’s technology standards — device they had on hand known as a pen register at its main office. The pen-register records all numbers called from a particular telephone line and is a “trap and trace” device. The telephone company uses the device as part of its billing operations. The device was attached to Smith’s line and Smith was eventually caught using the data mined from the pen register and the constitutional jousting began. Was is kosher, from a Madisonian perspective, to use a device to record a list of  the telephone numbers called by a citizen’s every phone call?

SCOTUS, in the person of Justice Harry Blackmun,  thought so, reasoning that you give away your telephone number all the time — to the phone company; to your friends; heck it’s even in the phone book. Plus, the phone company uses your number all the time as part of its billing and administrative operations and you know it. Just because they record your call placements using your number as an identifier means you, the telephone customer, have no “reasonable expectation of privacy.”  Then Blackmun delivered the coup de grâce: “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Ipso,-facto, hocus-pocus, the Fourth Amendment has no application because, you see, your expectation is unreasonable under the circumstances. You blabbed to somebody so no privacy for you. As SCOTUS said,  Smith’s expectation of privacy in this instance  “is not one that society is prepared to recognize as reasonable.’

That was 1979 (by the time the case wound its way through the judicial process), and pen register technology was, according to Blackmun, quite “limited.” After all, the pen register merely recorded numbers on a given line just like the old-time operators used to do manually with  their switch boards . As the Court noted, “It [the pen register] does not overhear oral communications and does not indicate whether calls are actually completed.”

Blackmun continues:

This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber.

Well that seemed reasonable back in 1979 when the best technology could do was mimic the services of a telephone operator. Surely new circumstances would justify a revisiting of the pen register case? In dissent, Justices Marshall and Brennan didn’t think that little bit of updating would ever happen arguing that the decision was a blow to individual privacy and a crude understanding of the topic as well. Privacy is not an all or nothing proposition, nor is it based on prevailing notions of society’s expectations, the Justices argued.

But even assuming, as I do not, that individuals “typically know” that a phone company monitors calls for internal reasons,ante at 442 U. S. 743, [Footnote 3/1] it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.

Marshall also expressed that notion that waiving privacy involves assuming risk and hence the choice to make that decision. What practical choice did Smith have in this pre-cellular world by placing his telephone number into the unitary, universal land line system? Was that a knowing waiver as the majority assumed?

Marshall then raised a much more ominous threat to privacy fostered by the Smith decision. What if the government simply changes society’s expectation by announcing publicly they are going to monitor everyone and thus you have no expectation of privacy. Big Brother anyone?  Marshall thought so:

More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications. 

Oh, pishaw! That would not happen, Blackmun said. It’s a normative analysis, you see, not subjective! It’s reductio ad absurdum to say that:

“Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.”

What It All Means

Fast forward from the bell-bottom pants days to December 2013. Judge Pauley sitting scholarly in his chambers reading his copy of Smith v. Maryland surely found something he liked in Blackmun’s words dismissing the Chicken Little-ish prattle of civil libertarians. Conceding that even, try as he might, he could find no procedural reason to dismiss away the ACLU’s constitutional challenge under the Fourth and First  Amendments, Pauley was undeterred.  Calling Smith a “bedrock” ruling that individuals have no expectation of privacy because they voluntarily turned over their telephone numbers in placing the calls in the first place, Pauley went on to say that, weak as it was, Smith had a better case for privacy protection than the ACLU:

The privacy concerns at stake in Smith were far more individualized than those raised by the ACLU. Smith involved the investigation of a single crime and the collection of telephone call detail records collected by the telephone company at its central office, examined by the police, and related to the target of their investigation, a person identified previously by law enforcement. See Smith, 442 U.S. at 737. Nevertheless, the Supreme Court found there was no legitimate privacy expectation because “[tjelephone users. .. typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.”

And Judge Pauley says the records trapped by the NSA don’t even belong to the ACLU. They belong to the telephone company!! Never mind the data can be used to determine “… a person’s religion, political associations, use of a telephone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes.” It’s Verizon’s and if they want to help the government via a FISA court subpoena who are you, the subject of all this private info, to quibble. You gave it up don’t you know? And you knew… you knew … ’cause back in 1979 in the dark age of technology you knew then and you know now. Advances in snooping technology be damned.

And Pauley seems to say, “Who cares if there are other, less privacy-busting ways to get the same info without a Big Brother periscope on every corner?” “Not required,” says the jurist sworn to uphold the law of the land:

“[The] Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” City of Ontario. Cal. v. Quon, 130 S. Ct, 2619, 2632 (2010) (citing Yemonia School Dist. 47J v. Acton. 115 S. Ct. 2386, 2396 (1995)). That judicial-Monday-morning- quarterbacking “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers” because judges engaging in after-the-fact evaluations of government conduct “can almost always imagine some alternative means by which the objectives might have been accomplished.”

Judges are always looking for ways to frustrate the government, ya know! And this guy is a Clinton appointee.

And, lest you think the sheer volume of collected metadata from every call placed in the country and beyond raises Fourth Amendment concerns, at least one jurist isn’t worried. “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search, ” says Pauley. Of course not, how silly of us to assume a “breathtaking” usurpation of the privacy rights we took for granted just a decade ago should give us pause or suggest a constitutional issue. Smith v. Maryland says there’s not and that’s that.

Not so fast

But does Smith v. Maryland really mean we have no rights to our phone data then, now, and forever?  Wasn’t Smith different in that he was a suspected criminal when the capturing device was hooked up and didn’t the government have an articulable reason for finding about him specifically?  How is that like gathering data from every citizen in the country — criminal and non-criminal alike?  Is there no difference?

Pauley seems to think there is no Fourth Amendment difference and that we have no rights in our  … oops make that Verizon’s  … data. But no less an authority on constitutional rights than Thurgood Marshall thought so and some other folks are beginning to realize his prescient warning. “The big technological change is that computers have allowed law enforcement to monitor on a much broader scale,” says Orin Kerr, a law professor at George Washington University.

And there is some hope that the current SCOTUS realizes this and won’t worship in unison at the  altar of Smith v. Maryland. In United States v. Jones,  a GPS tracking case decided last year, five justices wondered aloud if Smith really holds up in the face of modern technology.  But that’s only a “maybe” since Jones was decided on trespassing grounds. What’s for sure is that ACLU v. Clapper is going up to The Court and then we’ll see if they have the cure to the cancer on the Fourth Amendment that the pen register case has become.

Source: Washington Post

~Mark Esposito, Guest Blogger