Debate: Metadata and the Fourth Amendment – A Reply to Jennifer Granick

This post is the second in a series from Just Security‘s Jennifer Granick and Guest Author Orin Kerr debating the constitutionality of the NSA’s telephony metadata program.  Don’t miss Jennifer Granick’s first post from earlier today. 

When we ask whether a government program violates the Constitution, we usually mean one of two things.  Sometimes we are asking whether the program violates the Constitution based on existing judicial precedents.  At other times, we are asking whether the program violates the Constitution based on our own normative views of what the Constitution should mean.  For the first round of this debate, I’ll start with current caselaw and leave the normative theories for later.  I’ll explain why existing Fourth Amendment precedents support the conclusion that the telephony metadata program does not violate the rights of telephone users.

Smith v. Maryland and Its Progeny

The telephony metadata program does not violate the Fourth Amendment rights of customers because it does not amount to a Fourth Amendment “search.”   In Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that the number dialed from a telephone call is not protected because it is information provided to the phone company to place the call. The caller sends the information to the phone company, and the phone company uses it; the information is the phone company’s record of what it did, not the user’s property. Smith built on United States v. Miller, 425 U.S. 435 (1976), which held that a person does not have Fourth Amendment rights in their bank records. The bank records are the bank’s business records of how the account was used, Miller reasoned, so the customer has no privacy rights in the information.

Under the reasoning of Smith and Miller, metadata that is account information about how an account was used — but not call contents — is not protected under the Fourth Amendment.  As a result, surveillance of communications metadata is not a “search.”   The federal circuits have applied this rule broadly to various kinds of communications metadata, including subscriber information, temporary network addresses, and cell-site location information.  See, e.g., United States v. Fregoso, 60 F.3d 1314, 1321 (8th Cir. 1995) (stored telephone records and subscriber information not protected); United States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993) (no Fourth Amendment rights in call records or credit card records); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (no Fourth Amendment rights in IP addresses); United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”); In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) (no Fourth Amendment rights in historical cell-site records).

These circuit court cases largely answer Jennifer’s argument that acquisition of modern telephony metadata is more invasive than the surveillance in Smith.  Even if she is right, there is lots of circuit court caselaw on whether those technological differences matter.  And that caselaw has held that the rule of Smith v. Maryland still applies.

Unsuccessful Efforts to Distinguish Smith v. Maryland

Overcoming this established caselaw requires arguing that the scale of the NSA program should make a Fourth Amendment difference.  That is, you need to argue (as Jennifer does) that while collecting some records from one person is clearly not a search, there is something different about the government collecting lots of records of millions of people.  Based on current law, though, there doesn’t seem to be a doctrinal hook on which to make this argument.

Let’s start with the argument that collection records of many people at once should make a difference.  I don’t think this works because the Fourth Amendment is about individual rights, protecting each person from unreasonable searches and seizures.  As the Supreme Court put it in Katz v. United States, 389 U.S. 347 (1967),  “the Fourth Amendment protects people, not places.”  Given that the Fourth Amendment is focused on individual rights, how could conduct that is not a search when directed at an individual become a search when directed at many?  I don’t see how that argument can be made based on current law.   If a police officer is walking the beat, it doesn’t matter whether he is watching a quiet street or a busy thoroughfare.

Jennifer suggests that large-scale surveillance is unconstitutional because it is akin to a general warrant. I think this argument is based on a category error.  The Fourth Amendment prohibition on unreasonable searches has two distinct parts.  First, what is a search? And second, when is a search reasonable?   The prohibition against general warrants only concerns the second question.  And the example brings up an incontestable point: The broader the search, the more likely it is that it is constitutionally unreasonable.  But the issue here is whether the surveillance is any search at all, not whether it is a reasonable one.   We’re debating the first question, not the second, and arguments based on the second question miss the mark.

Jennifer also relies heavily on the concurring opinions of United States v. Jones, 132 S.Ct. 945 (2012).  Those concurring opinions signaled the possibility of a foundational rethinking of Fourth Amendment law, and specifically a novel new “mosaic theory” by which non-searches can become searches if they occur for an unspecified long-enough period of time.  Jennifer relies heavily on the concurring opinions in Jones throughout her initial essay; the bulk of her argument is based on them, and particularly the solo concurrence by Justice Sotomayor.

I’ll probably have more to say about the “mosaic theory” of the Jones concurrences in later rounds of our debate.  But for now, given that we’re sticking to current law, we can reject arguments based on the concurring opinions for a simple reason: There was a clear majority opinion in Jones, and it expressly declined to adopt the novel theories suggested by the concurring opinions.  Indeed, the majority opinion scoffed at the mosaic approach of Justice Alito’s concurrence on the ground that it was “novel” and its method derived from “no precedent.”   So as interesting as the mosaic theory is, presently it is not the law.  See, e.g., State v. LeMasters, 2013 WL 3463219 (Ohio App. July 8, 2013) (“While [the appellant] spends a great amount of time in his brief quoting and referencing the concurring opinions in Jones that suggest that the Fourth Amendment should be stretched to include other privacy rights, we are bound only by the majority opinion of the court, rather than questions raised and suggestions made within the dicta of concurring opinions.”).

Near the end of her post, Jennifer also argues that Smith v. Maryland is distinguishable because most people don’t know about the scope of the NSA’s surveillance program.  I find it hard to see why public knowledge of a program is relevant to its constitutionality.   If knowledge that surveillance was occurring eliminated Fourth Amendment protection, then ignorance would be the Fourth Amendment’s greatest ally.  Edward Snowden and The Guardian would be largely responsible for the Fourth Amendment’s demise.  Fortunately, courts don’t apply the Fourth Amendment that way.  What matters is whether an expectation of privacy is “legitimate,” which does not consider whether a typical or average person expects the government to be watching.  It’s true that Smith speculated about (without answering) whether people have a subjective expectation of privacy based on their knowledge of general telephone surveillance practices.  But most courts properly just assume a subjective expectation of privacy and rest the entirety of the analysis on the legitimacy of that expectation.

Perhaps the courts should adopt new principles that make the scale of surveillance matter or that reject Smith v. Maryland altogether.   I hope we’ll reach some of those questions in a future round.  But to close Round 1, I think existing precedents support the conclusion that the telephony metadata program does not violate the Fourth Amendment rights of telephone customers.

  

About the Author(s)

Orin Kerr

Fred C. Stevenson Research Professor at the George Washington University Law School Follow him on Twitter (@OrinKerr).