by Jeffrey Rosen
December 17, 2013
Yesterday, in a path-breaking victory for the Fourth Amendment, Judge Richard Leon held that the National Security Agency’s collection and storage of metadata from all American phone calls probably violates the Constitution. There are many persuasive aspects of this remarkable opinion, but the most important is Leon’s evisceration of the relevance of a 1979 case, Smith v. Maryland, that the Obama administration and the Foreign Intelligence Surveillance Court have repeatedly used to justify the warrantless surveillance program in the first place.
Smith held that the police could use a “pen register” to collect the phone numbers dialed by someone who had called a robbery victim and threateningly claimed to be the robber. The Court held that Smith had no legitimate expectation of privacy in his dialed phone numbers because he turned them over to the phone company knowing that the phone company might collect them. There is an obvious difference, of course, between recording a few dialed numbers of one person suspected of a crime and recording all dialed numbers of everyone suspected of no crime. But the FISA court dismissed the distinction in these words: “When one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”