Yochai Benkler writes: On Tuesday, the Foreign Intelligence Surveillance Court (FISC) declassified an opinion in which it explained why the government’s collection of records of all Americans’ phone calls is constitutional, and that if there is a problem with the program, it is a matter of political judgment, not constitutional law. So, should Americans just keep calm and carry on phoning? Not really.
Instead, we should worry about a court that, lacking a real adversarial process to inform it, failed while taking its best shot at explaining its position to the public to address the most basic, widely-known counter-argument to its position. The opinion does not even mention last year’s unanimous US supreme court decision on the fourth amendment and GPS tracking, a decision in which all three opinions include strong language that may render the NSA’s phone records collection program unconstitutional. No court that had been briefed by both sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor, and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down.
The newly-released FISC opinion, the first to opine on the legality of the phone metadata collection program since the Snowden leaks brought the program to national attention, is based on two straightforward points.
First, in 1979, the supreme court held in Smith v Maryland that using “pen registers” that record what number called what other number, when, and for how long, did not violate the fourth amendment. The court in Smith reasoned that individuals have no expectation of privacy in information they knowingly hand over to the phone company. The FISC reasoned that even though the NSA metadata program collected more information than the program the supreme court upheld 35 years ago, the details did not make a constitutional difference. Individuals have no fourth amendment rights in their phone call metadata.
The second component of the FISC argument was that “grouping together a large number of individuals”, no single one of whom has “a fourth amendment interest”, “cannot result in a fourth amendment interest springing into existence ex nihilo”. Adding up many zeros doesn’t create a positive value; bulk collection of unprotected materials over a sustained period of years raises no special constitutional considerations.
Standing on its own, this logic may seem persuasive. But only until you think about how last year’s Jones decision by the supreme court destabilizes this logic. [Continue reading…]