Thursday’s appeals court ruling against the National Security Agency’s sweeping phone records collection program raises constitutional questions likely to be answered by the Supreme Court.
The Second Circuit Court of Appeals rejected the NSA’s phone records program and poked holes in a thorny legal theory known as “third-party doctrine,” which the government uses to justify accessing people's records without a warrant.
“The world today involves the creation of so much metadata, and the government’s appetite to get its hands on that data has proven so limitless, that I think the courts — as the Second Circuit previewed — will have to grapple with it,” he added.
The appeals court on Thursday determined the NSA’s bulk collection of phone “metadata” — such as what numbers people dial and when — was not authorized by the Patriot Act, as the government had claimed, and was therefore illegal.
The conclusion was similar to a determination from a small government privacy watchdog, which last year said the program did not have any “viable legal foundation.”
While the court did not wade into the broader issue of whether or not the NSA operation violates the Constitution, it nonetheless questioned the rationale behind the government’s argument.
The issue, Judge Gerard Lynch wrote on behalf of the three-member panel, was “vexing.”
The argument from the ACLU and others “invokes one of the most difficult issues in Fourth Amendment jurisprudence: the extent to which modern technology alters our traditional expectations of privacy,” he added.
In large part, the constitutional question hinges on the Supreme Court’s 1979 decision in Smith v. Maryland, which helped to establish the third-party doctrine. Under the theory, people lose some of their constitutional privacy protections on information they knowingly hand over to a private company.
The government has relied on that doctrine to argue it can treat records about someone’s phone calls — which are, by necessity, handed over to phone companies — differently than files in their desk drawer.
But as technology has improved in the years since 1979, critics say that that standard is far out of date.
“[I]n today’s technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs,” Lynch wrote.
Thursday’s case is not the only one in which the NSA's authority is challenged.
Two other cases are awaiting a decision from the liberal-leaning Ninth and D.C. Circuit Courts of Appeals, which could rule on the constitutionality of the NSA’s programs.
One of those cases is an appeal of a lower court judge's ruling in December that the phone records collection was likely unconstitutional and “almost Orwellian.”
As the cases move through the courts, Congress is grappling with the very same issue. Lawmakers debate whether to extend certain provisions of the Patriot Act — including the NSA’s bulk collection of records — before they expire at the end of the month.
If Congress reforms or kills that law in the next few weeks the court arguments could be moot.
“If Congress goes and amends the statute and makes it illegal and the program’s gone, it’s gone,” said Laura Donohue, a law professor and director of Georgetown’s Center on National Security and the Law.
Still, the broader issue of the privacy of people's records is likely to land before the Supreme Court at some point.
It could come from expected legal challenges to whatever Patriot Act language Congress authorizes.
“There’s still going to be pretty substantial constitutional issues,” said Michael Vatis, who worked in national security for the FBI and Justice Department, after reviewing lawmakers’ proposed NSA reform bill.
Or it could come from a number of cases further down the legal pipeline.
The 11th Circuit Court of Appeals last summer rejected the government’s warrantless cellphone tracking program in a case that touched on many of the same constitutional and privacy concerns.
“I think it’s more likely that a case like that may reach the Supreme Court first and offer some guidance as to how it could be applied in this particular situation,” said Peter Toren, a digital crime attorney and former Department of Justice prosecutor.
Once these issues do reach the nation’s highest court — likely more than a year from now — there are multiple indications that the Supreme Court will reverse its decades-old precedent.
“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Supreme Court Justice Sonia Sotomayor wrote in a 2012 concurring opinion on a case about use of a GPS without a warrant. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
Thursday's decision seemed to be in agreement.
“Metadata today ... permit something akin to the 24‐hour surveillance that worried some of the Court” in 2012, Lynch wrote.