Robert Samuelon writes in the Washington Post about the "sensationalism" over Edward Snowden's leaks of details of the National Security Agency data mining:
The NSA’s damage to privacy is dwarfed by the impact of market activity. The sensationalism surrounding Snowden’s revelations obscures this. Case in point: The disclosure that U.S. telephone calls are open to NSA monitoring. Suddenly, Big Brother looms. In our mind’s eye, we see the NSA’s computers scouring our every phone call. We’re exposed to constant snooping and the possibility that the government will misuse the information it finds.
The reality is far more limited. The NSA is governed by legal restrictions. It does not examine the full database. It searches individual numbers only after it has determined there’s a “reasonable, articulable suspicion” that a number might be linked to terrorist groups. In 2012, there were 288 of these findings. After one is made, the NSA can retrieve three items about the number: the dates of calls made and received for five years; the other phones’ numbers; and the calls’ length. The NSA is not entitled to listen to conversations, but it can order similar searches on the other numbers involved. Thousands of calls are caught in the dragnet, but the total is puny compared with the untold billions of annual calls.
Whether these searches are effective in fighting terrorism is disputed. The NSA says they’re valuable. A panel of experts appointed by Obama concluded that the monitoring “was not essential to preventing attacks.” But more important for civil liberties and privacy, the panel found that present practices don’t approach past abuses. During the Vietnam War, the panel noted, the CIA investigated 300,000 anti-war critics. The government also sought to “expose, disrupt, and neutralize their efforts to affect public opinion.”
By all means, let’s debate the NSA. Some policies seem suspect, spying on the heads of friendly governments topping the list. It’s also important to recognize that government can coerce and punish in ways that private markets cannot. The potential for abuse is greater. But let’s also keep the debate in perspective.
The cases both consider two major questions: first, whether plaintiffs have a reasonable expectation of privacy that the metadata program violates (and, hence, becomes substantively a government “search” under the Fourth Amendment); and, second, if they do, whether the search is reasonable given that amendment’s injunction against “unreasonable searches and seizures.”
On the first question, Judge Leon spends a goodly portion of his opinion arguing that the existing precedent, Smith v. Maryland (1979), is just too old to be of any relevance today. In Smith, the Supreme Court ruled that the use of a telephone pen register by police to capture a suspect’s call data was not a violation of Smith’s privacy rights since there was no “legitimate expectation of privacy.” The information collected (the numbers dialed from a particular phone and those calling in) would not only be known to the phone company as it facilitated the call, the Court argued, but also would be recorded, if only to allow the company to bill its customers later.
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.”