The Desirability of Saddling Them Upon Society

Both Judge Richard Leon and Judge William Pauley, in their respective decisions about the constitutionality of NSA’s spying upon Americans by collecting and maintaining all telephony metadata, relied on the 1979 Supreme Court opinion of Smith v. Maryland.  While privacy did poorly in the decision, the opinion was factually relevant and clearly the appropriate precedent to consider.

Many are familiar with Smith as the decision approving of the warrantless use of pen registers, which Justice Harry Blackmun held permissible under the Third Party Doctrine, as failing the objective prong of Katz’s reasonable expectation of privacy test.

The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” —whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.”  The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’” — whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.

The conclusion was that society was not prepared to recognize as reasonable an individual’s expectation of privacy in information possessed by a third party, the telephone company in Smith. There were no riots in the streets following the decision, because society was quite certain that law enforcement would only be spying on bad dudes like Smith, who certainly deserved to have his privacy violated for the good of society and to protect good Patricia McDonough from his obscene phone calls and harassment.

With some regularity, the point is made that the rights of good people are either protected or lost based on the conduct of people we despise. This usually evokes the reaction of “what if that was your child” (or wife, daughter, mother, as the case may be), to which heartless criminal defense lawyers respond that we would hunt them down like dogs, personally, but not advocate a change in the law for society to salve our personal fury.

This rarely soothes anyone’s visceral hatred, but we’re used to it. The difference is the experience of watching and understanding how law applied to a bad situation finds itself slipping and sliding, until it’s the law applied to good people as well.  It may take a while. It’s often hard to see coming, or believe can come, since most of us have some degree of faith that reasonable people would never treat good people, like us, the way they treat bad people, like them.

But while we feel safe from the law because of our inarticulable feelings, lawyers understand how “mission creep” extends doctrines that society likes into the bedrooms of good people too. Without a conceptual ledge, there is no way to stop the slide from using the law to get the people we hate to getting us.

There were two dissents in Smith, both joined by Justice Brennan.  The first, by Potter Stewart, recognizes that even the numbers dialed are “content,” and entitled to protection.

The information captured by such surveillance emanates from private conduct within a person’s home or office—locations that without question are entitled to Fourth and Fourteenth Amendment protection. Further, that information is an integral part of the telephonic communication that under Katz is entitled to constitutional protection, whether or not it is captured by a trespass into such an area.

Stewart saw Katz’s protection of telephonic communications compromised, and rejected the majority’s circumvention of 4th Amendment protections.

Thurgood Marshall dissented as well, but saw it in terms of the second prong of Katz, the objective prong questioning whether society was prepared to accept the reasonable expectation of privacy.

The crux of the Court’s holding, however, is that whatever expectation of privacy petitioner may in fact have entertained regarding his calls, it is not one “society is prepared to recognize as `reasonable.’” In so ruling, the Court determines that individuals who convey information to third parties have “assumed the risk” of disclosure to the government. This analysis is misconceived in two critical respects.

Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications.

By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. Cf. Lopez v. United States, supra, at 465-466 (BRENNAN, J., dissenting). It is idle to speak of “assuming” risks in contexts where, as a practical mater, individuals have no realistic alternative.

It’s unlikely Justice Marshall foresaw the day when people would be walking around with smartphones, connecting them to the internet at all times and transmitting communications via emails, texts, Facebook walls and twits.  But he likely saw that the telephone wasn’t going anywhere, and would become the ubiquitous means of communication. Every phone call went through the telephone company, and there would be no option of survival in then-modern society without the telephone.

But Justice Marshall also saw the hole in the rationale. It was inconceivable to reasonable people that such a hole would ever be exploited in 1979, because that’s just not what the government of the United States of America would ever do to its own citizens, but the hole was there.

More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications. Yet, although acknowledging this implication of its analysis, the Court is willing to concede only that, in some circumstances, a further “normative inquiry would be proper.” No meaningful effort is made to explain what those circumstances might be, or why this case is not among them.

In other words, the reductio ad absurdum argument, that the government could create the assumption of risk that would undermine an objective expectation of privacy, was foreseen but ignored. After all, what sort of crazy government would do such an outlandish thing?  And if some future regime did something so monumentally offensive to society as to breach society’s expectations of reasonableness, well then, it would be addressed then when normative values were so offended that society refused to allow the government to go that far.

One of the most useful axioms in the law is that we remember the rubric but forget the rationale. When Judge Leon wrote that NSA’s conduct hit the wall that Justice Blackmun thought too absurd to address in Smith, he adhered to the Supreme Court’s admonition in footnote 5 that should the time come when the government exceeded normative reasonableness, the Third Party Doctrine would fall.  Judge Pauley applied Smith by rote.

In his dissent, Marshall offered this eerily prescient admonition to the Court from Katz:

As Mr. Justice Harlan, who formulated the standard the Court applies today, himself recognized: “[s]ince it is the task of the law to form and project, as well as mirror and reflect, we should not . . . merely recite . . . risks without examining the desirability of saddling them upon society.”

To get the bad guy named Smith, society was saddled with the Third Party Doctrine.  Was getting Smith worth the price?  What if Smith was a terrorist?

Of the eight justices who heard the Smith case, only Justice Marshall understood how the rubric of the majority could later be used to justify what 1979 technology and societal norms considered absurd. Welcome to the Age of Absurdity.  Notably, Justice Thurgood Marshall is the last justice of the Supreme Court to have been a criminal defense lawyer.  This is why we do what we do. This is why we’re not welcome in polite company.

H/T Mark Esposito, Guest Blogger at Turley’s.

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