In a tie-breaking case between the National Security Agency (NSA) and those who have railed against its surveillance practices, the NSA has come out on top. The U.S. District Court of Idaho has granted a motion to dismiss Smith v. Barack Obama, et al., which claimed Fourth Amendment violations related to the National Security Agency’s (NSA’s) mass surveillance of telephone data.
In case you’re keeping score at home, the scoreboard now reads:
|Klayman v. Obama||1|
|ACLU v. Clapper||1|
|Smith v. Obama||1|
Here’s a breakdown of Judge B. Lynn Winmill decision, or you can read the full text here:
Numbers you dial are not private.
This should come as no surprise. In the decision, Judge Winmill denies any expectation of privacy in the telephone data that the NSA has copped to collecting. Citing Smith v. Maryland, Winmill writes, “Smith has no expectation of privacy in the telephone numbers that she dials. A person using the telephone ‘voluntarily convey[s] numerical information to the telephone company’ and ‘assume[s] the risk that the company [will] reveal to police the numbers he dialed.’”
How long you talk isn’t private either, kind of.
“The time and duration of phone calls is revealing,” Winmill admits, and this is information that the NSA has been collecting. He goes on to ask, “Would most citizens want to keep private the fact that they called someone at one in the morning and talked for an hour or two?” Unfortunately, Winmill never directly answers this question, though this may be, some are noting, one indicator of “a hint of reluctance in the opinion.” Later in the decision he cites United States v. Reed as denying an expectation of privacy in either numbers dialed or length and time of call. So, that’s that.
Location, now that’s private.
Winmill takes up more than a few inches describing the private nature of location data and how revealing it can be. Only problem here is that the NSA claims to not be collecting location information, and FISC orders prohibit the NSA from associating an address with any telephone number it collects, “apparently precluding the collection and analysis of location data.” It does, however, collect “trunk data,” which “shows the location where a cell-phone call enters the ‘trunk’ system to be relayed eventually to the number being called.” And, if you follow the data from trunk to trunk, you can paint a general picture of where the caller was, how fast they were moving, etc. But the NSA doesn’t do that, or so it says.
The Shadow Lurker
Winmill takes no pains to hide the fact that he’s not sure the NSA is telling the truth, the whole truth and nothing but the truth. After all, it has taken some liberties in the past. After five pages of explanation as to why he’s dismissing the case, Winmill acknowledges there’s “a subject lurking in the shadows here: The possibility that the NSA is tracking the location of calls using the trunk identifier data discussed above.” If that’s the case, the U.S. Supreme Court has already gone there in Jones v. Maryland, determining that law enforcement’s 28-day geolocation tracking of a suspect violated his Fourth Amendment rights.
Smith v. Maryland
Obviously, Winmill can’t just assume they’re lying, so we’re back to relying on precedence, most notably the 1979 decision in Smith v. Maryland, on which the opinions of all three NSA surveillance constitutionality cases are based—both the two for the NSA and the one against.
That’s right, 1979. And we call ECPA out-of-date. This case involves a “pen register,” I’ll forgive you if you have to look it up. I did. Turns out, it’s an “electronic device that records all numbers called from a particular telephone line.”
In Judge Leon’s Klayman v. Obama decision granting the plaintiff the right to sue, he noted, “When do present-day circumstances—the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and
telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.” So far, he’s alone in that opinion—at least the ones that matter.
The one resounding “Yopp.”
After summing up his reason for dismissal as such— “The Supreme Court’s decision in Smith, supplemented by the Circuit’s decisions in Reed, Forrester, and Golden Valley, and the two District Court decisions on point, Clapper and Moalin, support a finding that there is no Fourth Amendment violation here”—Winmill goes on to point to Judge Leon’s decision, saying it “should serve as a template for a Supreme Court opinion.” He refers to Leon’s decision as “thoughtful and well-written,” even “eloquent.”
Winmill then harkens to this Justice Sotomayor quote from the Jones decision: “But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”
And finally, Winmill ends his decision with this resounding yopp: “But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman. Accordingly, the Court will grant the defendants’ motion to dismiss and deny Smith’s motion for injunctive relief.”
Is that lament I hear?