Privacy advocates have had a fantastic week.
On Monday, federal judge Richard Leon ruled that the National Security Agency’s program that collects information, or “metadata,” on telephone calls in the United States is likely unconstitutional under the Fourth Amendment.
Then, on Wednesday, an independent panel commissioned by President Barack Obama after the disclosures Edward Snowden recommended that the NSA scrap the domestic metadata program, which has been operational as far back as 2001.
David Cole details the primary reasons why Leon’s ruling is significant in The New York Review Of Books
First, it shows the inadequacy of the secret, one-sided review that has until now been the NSA program’s only oversight. … Now that the program has been disclosed and subjected for the first time to public adversarial testing, it has been declared unconstitutional.
Pre-Snowden, the NSA could stonewall most legal attempts against the program on national security grounds, successfully arguing that the various plaintiffs didn’t have “standing” because they couldn’t prove the surveillance was “certainly impending.”
That changed with the leaked NSA order compelling Verizon to hand over the phone records of millions of Americans. That allowed Leon to rule that the “plaintiffs have standing to challenge the constitutionality of the government’s bulk collection and querying of phone record metadata.”
Cole then gets to the crux of that matter:
[T]he second and even more important aspect of Judge Leon’s opinion is its recognition that the Fourth Amendment needs to adapt to the digital age.
The government’s principal defence of the NSA program is predicated on the analogue-era 1979 Supreme Court precedent set in Smith v. Maryland, which involved the collection of basic phone records of a robbery suspect already known to the police who was believed to be making threatening calls to a particular witness.
The FISA court, which secretly oversees the NSA metadata program, has heretofore accepted Smith‘s ruling that customers shouldn’t expect that information to be private since they’ve already disclosed it to a third party.
Cole explains why Judge Leon didn’t accept that logic:
He reasoned that there is a world of difference between what could be done with phone records in the late 1970s and what can be done today: Instead of obtaining such records for a limited time on a single person, the government now has the ability to indiscriminately collect them — along with many other forms of electronic data that did not exist in 1979 — on every American.
“…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.
Furthermore, Cole notes that the nation’s highest court “has repeatedly recognised that Fourth Amendment doctrine must evolve as technology changes” in terms of the automobile (1920s), wiretapping (1967), thermal imaging (2001), and GPS tracking (2012).
Leon’s ruling is only the beginning since it only orders the destruction of metadata pertaining to the two plaintiffs and is pending appeal. That said, the fact that a federal judged deemed the metadata program unconstitutional and the president’s review board recommended shutting it down is a huge breakthrough.
“This is the opening salvo in a very long story, but it’s important symbolically in dispelling the invincibility of the metadata program,” Stephen Vladeck, a national security law expert at the American University law school, told the Associated Press in reference to Leon’s ruling.
The constitutionality question will most likely be decided by the Supreme Court at some point, and Leon is the first to federal ruling in favour of a “reasonable expectation of privacy in information” attuned to the digital age.
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