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Is Dragnet Surveillance Constitutional?

JURIST Guest Columnist Alex Abdo of the American Civil Liberties Union (ACLU) explains the constitutional issues surrounding dragnet surveillance and why the ACLU and others are correct in challenging the broad surveillance...

Ever since Edward Snowden exposed the National Security Agency's (NSA) sweeping surveillance of US citizens and residents, our country has been engaged in a historic debate about privacy in the digital age. The centerpiece of that debate is a question that has the potential to shape the meaning of privacy in this country for decades to come: does the Constitution permit the NSA to collect the phone records of millions of innocent Americans every single day?

The government thinks so, based on a US Supreme Court case from 1979 called Smith v. Maryland. Given the importance of that case to the ongoing debate, it's worth asking whether Smith actually answers the question raised by the NSA's unprecedented surveillance program.

The question is important in part because it reflects a fundamental shift in the way that the intelligence agencies do their business: from targeted collection to bulk collection. However it is critical for yet another reason: at stake are not just our phone records, but every digital track we leave as we browse the internet, communicate with loved ones, or even just carry around our increasingly nosy phones. Should the NSA have access to all of that information every single day about every single American?

Within a week of the disclosure of the NSA's phone-records program, the ACLU and others filed lawsuits challenging the program. Most recently, Senator Rand Paul joined the fray with a class action on behalf of all Americans.

The challenges differ in various ways, but central to each is the key question of whether the Supreme Court effectively approved the dragnet collection of our phone records in Smith. Two federal judges have already issued dueling opinions on that question. One—Judge Richard J. Leon—declared what is perhaps intuitive to many: that bulk collection of the records of innocent Americans likely violates the Constitution, Smith notwithstanding. The other—Judge William H. Pauley III—countered that the phone-records program is unquestionably constitutional under Smith.

So which is it? Does Smith justify the NSA's dragnet collection of every American's phone records (and perhaps every American's bank records, credit-card statements, and internet and email records)?

The answer is "no." Here's why.

In Smith, the Baltimore police suspected that Michael Lee Smith was making threatening and obscene phone calls to a woman he had robbed days earlier. To confirm their suspicions, they asked Smith's telephone company to install a "pen register" on his line to record the numbers he dialed. After just a few days, the pen register confirmed that, sure enough, Smith was the culprit.

He was convicted, he appealed, and the Supreme Court for the first time faced the question of whether the warrantless use of a pen register on a criminal suspect violated the Constitution. The Supreme Court held that it did not, because—in the court's estimation—individuals do not expect privacy in the telephone numbers that they dial.

That's what the Supreme Court held: that an individual had no expectation of privacy in the numbers that he dialed over the course of several days.

Here's what the court did not hold: that the government may, therefore, record the phone numbers that every American dials for all time.

The distinction is important. It confirms one predicate of Leon's ruling, that Smith does not—in the words (PDF) of the Foreign Intelligence Surveillance Court—"squarely control" the legality of the NSA's program. In other words, the Supreme Court simply has not decided whether the mass, suspicionless collection of millions of innocent Americans' phone records is constitutional.

Of course, even the government concedes that the Supreme Court has not actually answered the precise question that the NSA's phone-records program raises. What it argues, instead, is that if you have no right to privacy in your phone records for a few days, you have no right to privacy in your phone records for five years. That is to say, the government argues that zero plus zero equals zero.

Sounds reasonable, right? The problem is that our constitutional right to privacy is not a mathematical equation. Just as grains of sand piled up eventually form a mountain, so too can the accumulation of seemingly insignificant privacy invasions eventually trigger the Constitution's protections. The Supreme Court has made that clear on several occasions.

Take the case of United States v. Knotts from 1983, which involved the use of a beeper to track the car of a suspected manufacturer of illicit drugs. Based in part on Smith, the Supreme Court held that the warrantless tracking of a suspect as he moves in public does not violate the Constitution, because Americans do not expect their public movements to remain private.

Here's the critical part: the court made clear that its ruling on the tracking of a single person's location for a short period of time could not be mathematically converted into a formula for pervasive surveillance:

[I]f such dragnet-type law enforcement practices ... should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.

In other words, dragnet surveillance is different. When it comes to privacy, zero plus zero does not always equal zero. And that makes sense. When you share bits and pieces of your private life with others, that's not the same as sharing everything with everyone all at once. If that logic sounds familiar, it's because the government uses precisely the same logic when it argues that seemingly innocuous details in classified reports cannot be disclosed lest they be combined into a "mosaic" that reveals far more than the sum of their parts.

The Supreme Court confirmed this understanding of our privacy—that the mosaic is often more revealing than the individual tiles—just a few years ago in the landmark case United States v. Jones (PDF). In that case, five justices in two concurring opinions rejected the government's argument that the pervasive tracking of an individual's location in public is no different than the isolated beeper-tracking in Knotts.

Some have argued that the Jones concurrences were just that: concurrences and not a majority opinion. However, that's beside the point. The five justices in Jones only confirmed what the Supreme Court made clear in 1983 in Knotts. If there were any doubt about that, you would only need to look to the appellate decision in Jones, which the Supreme Court eventually upheld. In that case (United States v. Maynard), the United States Court of Appeals D.C. Circuit (the very same court that will hear the government's appeal from Leon's ruling) held that cases like Smith and Knotts are relevant to the question of dragnet surveillance, but do not actually answer the question.

In short, the constitutionality of the NSA's mass tracking of our phone calls is an open question, at least insofar as Supreme Court precedent is concerned. The real question is the one that has now divided the courts: whether dragnet surveillance is a simple extension of Smith or rather a radical departure from our values and from our Constitution. The answer to that question should be straightforward: the Constitution protects us from dragnet surveillance.

Alex Abdo is a Staff Attorney in the ACLU's Speech, Privacy, and Technology Project. He is counsel in the ACLU's challenge to the NSA's phone-records program, and has been involved in litigation concerning the Patriot Act, the Foreign Intelligence Surveillance Act, the International Emergency Economic Powers Act, and the treatment of detainees in Guantánamo Bay, Afghanistan, Iraq, and the Navy brig in South Carolina.

Suggested citation: Alex Abdo, Is Dragnet Surveillance Constitutional?, JURIST - Hotline, March 26, 2014, http://jurist.org/hotline/2014/03/alex-abdo-nsa-cell-surveillance.php.

This article was prepared for publication by Emily Kinkead, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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