N.S.A. Surveillance Underscores Need For a Revitalized Approach to Fourth Amendment

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it."--John F. Kennedy, April 21, 1961 Last week, the Guardian and Washington Post newspapers revealed--with the help of Edward Snowden--the existence of two secret N.S.A. programs designed to surveil internet and telephonic traffic in the United States. While the reports regarding the internet surveillance program, code named PRISM, are somewhat contradictory (the Post and Glenn Greenwald have reported that the Government is collecting data "directly" from the "servers" of American internet companies, such as Google and Yahoo!, while the internet companies have largely disputed this very important detail), there is no mistaking the import of the court order providing the N.S.A. access to "telephony metadata" from all users of the Verizon network: the Government is collecting massive amounts of information about millions of American citizens, without an individualized showing of suspicion, and without anyone outside the federal government knowing about it. Much of the media response to these stories--particularly as they pertain to PRISM--has been reminiscent of Ed Helms in the Hangover. This overreaction was probably driven by Glenn Greenwald's activist, hyperbolic "reporting." Those familiar with Greenwald's schtick shouldn't be surprised to learn that his initial story on PRISM was based upon an "Epic Botch," in which he misled his readers as to the nature of the program. However, while much of the media's focus has been on the PRISM program, the far more interesting story relates to the N.S.A.'s collection of "telephony metadata" from the Verizon Network. In response to last year's Supreme Court holding in United States v. Jones, in which the Court failed to address the question of whether prolonged GPS tracking violates an individual's reasonable expectation of privacy, I wrote: [With] the advent of data-mining, it is not far-fetched to imagine the federal government capable of collecting massive amounts of data on individuals, which could reveal an individual's personal secrets. Now we learn that the federal government, relying on the Business Records section of the Foreign Intelligence Surveillance Act (FISA), has convinced a federal judge to order Verizon to hand over: "comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telphone number, International Mobile Subscriber Identity {IMSI} number, International Mobile station Equipment Identity {IMEI} number, etc.), trunk identifier, telephone calling card numbers, and time and duration" of every domestic telephone call made on the Verizon network. Presumably, the government argued that the data-set from every domestic telephone call made on the Verizon Network was a "tangible thing" that was "relevant to an authorized investigation" under FISA. At the risk of sounding like a callous government apologist, it is important to note that (1) under FISA, the government is required to implement "minimization procedures," which protect against the unwarranted and unneeded collection of information from Americans; (2) the government is not using the metadata to identify any individuals by name; and (3) the information the government is collecting is information that Verizon customers are already sharing with a third-party: Verizon. What's more, under current Fourth Amendment precedent, individuals do not have a "reasonable expectation of privacy" in information shared with a third party. See, Smith v. Maryland, 442 US 735 (1979). However, despite "minimization procedures" and current (and arguably outdated) Supreme Court precedent, the problem is rather obvious. The government is secretly applying for a secret court order in a secret court for secret reasons, and the secret court is applying a secret interpretation of the law...secretly! What's more, whatever real benefits this secret legal regime provides are...secret! Furthermore, this metadata collection underscores an important point Justice Sotomayor made in her concurring opinion in Jones: "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers...I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." Nail, meet hammer.