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Snowden and the NSA: Reality vs. Fantasy

2:14 PM, Jan 6, 2014 • By MICHAEL WARREN
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According to Leon, since we now use our cell phones ubiquitously and technology has transformed them into cameras, mail transmitters, calendars, music players, maps, and even pseudo-lighters at concerts, the Court in 1979 could not “have ever imagined how the citizens of 2013 would interact with their phones.” Whereas in Smith, the Court was reviewing a onetime, targeted request, the NSA program is a “daily, all-encompassing, indiscriminate dump of phone metadata” that amounts to “the stuff of science fiction.” And while Leon admits that, “as in Smith, the types of information” currently sought by the NSA “are relatively limited: phone numbers dialed, date, time and the like,” given how we use our phones today, the prospect of what the NSA could derive from those data should send a chill down everyone’s back. By Judge Leon’s lights, “I dial, therefore I am.” He’s seemingly worried that the very instrument of our “self-expression, even self-determination” is at risk.

In contrast, Judge Pauley keeps his feet planted firmly on the ground, noting that, while individuals may in fact use their phones in a variety of ways today that the Court in Smith could not have dreamed of, the fact remains that people’s “relationship with their telecommunications providers has not changed,” and the issue before the court “only concerns” smartphones’ “use as telephones.” The data being collected by the NSA are no different in kind than what was at issue in Smith—numbers dialed, numbers calling in, and the duration of the calls. Moreover, there is no evidence that the NSA is trolling through these data to conduct “the type of data mining the ACLU warns about in its parade of horribles.”

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