The National Security Agency went into Judge Richard Leon’s courtroom with a powerful precedent on its side. In its 1979 decision in Smith v. Maryland, the Supreme Court held that individuals do not have a “reasonable expectation of privacy” in the numbers they dial on their phone because “[t]elephone users . . . typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” When someone voluntarily discloses information to a third party, they assume “the risk that the information would be divulged to police.”
This one decision, more than any other legal development before or since, forms the backbone of the NSA surveillance program Judge Leon ruled against on Monday. That program, as Leon describes it in his opinion, collects massive amounts of metadata — that is, information such as “what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted.” The government insists that “the metadata records collected under the program do not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls.” In other words, the NSA’s program is nothing more than Smith taken to its furthest extreme. If the government can gather phone numbers and other information that one person voluntarily discloses to their telephone company, why can’t it do the same to everyone?
Which brings us to the single most important paragraph in Leon’s opinion. This one:
[T]he question in this case can more properly be styled 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? The answer, unfortunately for the Government, is now.
On the day Smith was decided, the Federal Communications Commission hadn’t even laid out the regulatory framework that would allow early cell phone networks. Many phones still had rotary dials. The IBM PC was still two years away from the market and this was one of Apple’s leading products:
As Judge Leon lays out, however, we no longer live in that world. “[T]he almost-Orwellian technology that enables the Government to store and analyse the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data in perpetuity, was at best, in 1979, the stuff of science fiction.”
The central insight of Judge Leon’s opinion is that technology has so transformed our world that it requires an entirely different constitutional privacy regime. Whatever the wisdom of Smith on the day that it was decided, its conception of what constitutes a “reasonable expectation of privacy” imagined a world where government surveillance was relatively unusual and impossible to execute on a massive scale. New realities require new assumptions. And if the courts do not know the difference between science fiction and scientific fact, then we will forfeit our liberties as Americans.
Leon is, of course, only a federal trial judge. His decision will be reviewed by the United States Court of Appeals for the District of Columbia Circuit and, it is likely, by the Supreme Court. Many of the judges who consider this issue are likely to be concerned with other factors, such as the courts’ historic deference to the government in national security cases.
But Leon is right about one thing, Smith is as obsolete as the rotary dial and the Apple I — at least when applied to agencies with the capabilities of the NSA.