In her concurring opinion in United States v. Jones, empathetic Latina Justice Sonia Sotomayor pondered the question of the digital age:
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. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not.
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.
Notwithstanding this musing, Justice Sotomayor went with the government, leaving it to some other court to answer the question. And one did, in the opinion of Judge Richard J. Leon in Klayman v. Obama, who approved (and stayed pending the inevitable appeal) a preliminary injunction against the NSA collecting everything that exists.
Other have already parsed the opinion for its procedural and substantive legal correctness, and it will no doubt be the subject of a dozen blog posts and maybe as many law review articles by ambitious lawprofs hoping to fight their way to tenure at a T14 law school. That’s not my concern.
For those who have followed SJ for a while, you may recall that I have long argued that borrowing old 4th Amendment caselaw applied by analogy to current and future technological advances was not merely a bad idea, but would prove disastrous to privacy. In this case, the precedent was Smith v. Maryland, decided by the Supremes in 1979, when phones had things called “dials” and a live person answered whenever someone pressed “O.”
Judge Leon hit the wall. The decision provides an easily digestible understanding of what the NSA is up to, and how it accomplishes its task (the “seed,” then three “hops”), provided you accept the representations of an Assistant United States Attorney as both accurate and comprehensive. I’m disinclined to do so, not necessarily because the assistant is being dishonest, but because this all reflects the Idiots Guide to the NSA’s Digital Spying, which is the best lawyers and judges can be expected to grasp.
Indeed, Judge Leon does what most of us who aren’t exactly digital natives does, resort to arcane comparisons such as footnote 36 (which will hereinafter be known as the Ringo footnote) and 38 (the Battle Cry of Freedom footnote, which isn’t nearly as much fun as the Ringo footnote). Wrapping our heads around the capabilities of technology isn’t easy; as Judge Leon says, it’s all like science fiction to us.
And it is like science fiction, except it isn’t fiction anymore.
Will the ruling survive? It’s certainly got plenty going against it, not the least of which is a government dedicated to making sure it doesn’t. Indeed, it may be mere coincidence, but the 60 Minutes informercial on the NSA by its chief spokesman, John MIller, coming the day before this decision, will certainly make a lot of Americans appreciate all the government is doing to protect us from secret enemies. People may not get it, but they can sleep well at night knowing the government is protecting them from evil.
For those of us who have a somewhat different concern, about the depth and scope of intrusiveness of government aggregating and maintaining every bit of metadata we create, the enemy is the Third Party Doctrine. Regardless of whether Judge Leon’s opinion will survive procedurally, or whether his refusal to adhere to precedent because it was predicated on horses and buggies rather than rocket ships, this discussion has begun in earnest and needs to play out.
This may be the moment in time when the Third Party Doctrine finally comes under real scrutiny for its evisceration of any potential expectation of privacy in any communication ever. This isn’t hyperbole, but reality. Present day technological circumstances render historical jurisprudence fundamentally unworkable. The time to consider whether we desire any privacy going forward is, as Judge Leon wrote, “now.”