NSA will continue spying : Judge Pauley got it right: The NSA’s metadata program is perfectly constitutional - by Eric Posner.

This month two judges issued two different opinions about the NSA’s controversial bulk metadata collection program. Judge Richard Leon ruled in Washington, D.C., that the program likely violated the law. Judge William Pauley ruled in New York that the program did not violate the law. Judge Pauley’s opinion is both correct legally and more sensible than Judge Leon’s, but it’s not hard to imagine that even our conservative Supreme Court could go the other way.

Under the metadata program, the NSA vacuums up certain data associated with telephone calls—including the number called from, the number called to, and the time of the call—and stores them on its servers. Under the loose supervision of the secret Foreign Intelligence Surveillance Court, the NSA can search the data for evidence of terrorist connections. For example, if the NSA learns the cellphone number of a suspected terrorist, it can query the metadata for the phone numbers dialed on the terrorist’s phone, the phone numbers of the phones that called that phone, and other phone numbers associated with those phone numbers. The NSA turns over suspicious phone numbers to the FBI for further investigation.

Judge Pauley argued that under the Supreme Court case of Smith v. Maryland, which was decided in 1979, the metadata program does not violate the Fourth Amendment because the NSA collects the metadata from the telephone companies of the targets; the NSA does not monitor the phone itself. In Smith, the court held that the defendant did not have a “reasonable expectation of privacy” (the standard for a Fourth Amendment claim) in the phone numbers he had dialed, because by dialing them he communicated them to the phone company. So the police could install a device called a pen register at the telephone company’s premises to record those phone numbers.

The court reasoned that when people voluntarily divulge personal information to third parties, they “assume the risk” that those third parties will turn over the information to the police, and thus can’t complain when that happens, even if at the government’s request. Many commentators object that people do expect phone companies, banks, hospitals, and other trusted institutions to keep personal information secret.

But the reason for the rule is that we do not expect many of our communications with other people to be kept secret, a simple rule is better than a case-by-case inquiry into how strong your privacy interest is every time you speak to a colleague or stranger, and law enforcement would be too difficult if police could not gather such information before obtaining a warrant. After all, police can’t obtain a warrant unless they already have reason to believe that someone has committed a crime, and that reason to believe has to come from somewhere.

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