Edward Snowden should be proud.
Until this week, the National Security Agency could argue that its massive effort to collect every American’s telephone records had been approved, at least tacitly, by all three branches of government.
The president was on board; the people running the program were his appointees. The House and Senate intelligence committees knew what was going on and chose not to stop it. And the Foreign Intelligence Surveillance Court, which reviews NSA activities in secret, hadn’t objected.
But now, thanks to Snowden’s renegade disclosures, all three branches have decided that the routine federal collection of metadata — records of who calls whom, and when, but not the content of the calls — needs another hard look.
Congress is debating several proposals to rein in the program. President Obama is considering recommendations from his own advisors.
“I cannot imagine a more indiscriminate and arbitrary invasion” of citizens’ rights, District Judge Richard J. Leon wrote in a blistering opinion. “The author of our Constitution … would be aghast.”
Until Snowden’s disclosures, Leon wouldn’t have had a chance to weigh in on the matter. Earlier challenges were thrown out of court because civil libertarian plaintiffs couldn’t prove that the NSA was collecting data about them. Snowden’s leaks forced the government to acknowledge what it has been doing since 2001, and opened the way to a battle in the U.S. appeals court, followed almost certainly by one before the Supreme Court.
Yes, for the record, Snowden went about his whistle-blowing the wrong way; officials say the damage he’s done to U.S. security is real. As he sits in chilly Moscow requesting asylum from one country after another, he can consider that question at leisure.
Whether Snowden, other civil libertarians — and now, Leon — will prevail in higher courts is a different matter. The NSA’s action in collecting everyone’s phone records, however “indiscriminate and arbitrary,” could still turn out to be constitutional.
The core question in the jurisprudence on surveillance is whether the government’s actions violate what the Supreme Court has called “a reasonable expectation of privacy.” But what exactly does that mean? One leading scholar of the Fourth Amendment, Orin Kerr of George Washington University, calls the standard “notoriously murky.”
Kerr wrote this week that the metadata program might survive a Supreme Court test because the government doesn’t look at all phone records — only at those that might yield foreign intelligence information.
At the heart of the issue is a kind of riddle: When and where do we have a reasonable expectation of privacy? You probably think your email is private, but Google analyzes your metadata to decide what advertising you’d like to see. You might have thought the names and addresses on your [postcards and] letters were private, but the U.S. Postal Service scans many letters’ exteriors and keeps the records for 30 days. And now that we know the NSA has been collecting phone records, haven’t we been put on notice that those records aren’t private?
The NSA argues that the metadata program is legal thanks to a 1979 Supreme Court case, which held that telephone records aren’t private because citizens share them with the telephone company.
But Leon ruled that times have changed. “People in 2013 have an entirely different relationship with phones than they did 34 years ago,” he wrote. “Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic …”
At least one Supreme Court justice has sounded ready to hear that argument. In a ruling last year, Justice Sonia Sotomayor wrote the 1979 standard merits a new look.
“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,” Sotomayor wrote in a case involving whether police needed a warrant to place a GPS tracker on a criminal suspect’s car.
Do Americans accept the disclosure to the government of every telephone number they’ve called in the last five years, which is what NSA has collected? In fact, we already have a kind of answer to that question: Americans are divided down the middle. In a Quinnipiac poll released in July, for example, 55 percent of respondents said the government’s actions amounted to “too much intrusion into Americans’ personal privacy,” and 41 percent disagreed. But 50 percent said they supported the program, and only 44 percent said they opposed it. So putting the question up for a referendum, alas, wouldn’t work.
That means it’s up to Obama, Congress and the courts to find the right balance: rules that give the government the tools it needs to investigate terrorist threats, but not at the cost of reasonable expectations of privacy. If only we knew what that was.