Between ongoing publication of Edward Snowden’s leaks and a series of frankly unprecedented disclosures by the government itself, the public now knows quite a bit about the NSA’s controversial telephony metadata program, which makes use of the Patriot Act’s §215 to collect, in bulk, nearly all Americans’ domestic call detail records from telephone carriers. We know far less, however about the government’s bulk collection of Internet metadata under FISA’s pen register/trap-&-trace authority, which supposedly ceased in 2011—though some such collection almost certainly continues in a more limited form. That collection merits closer attention, because the legal argument that bulk metadata acquisition doesn’t violate the Fourth Amendment—rehearsed in a recent post at Just Security by Orin Kerr—simply doesn’t work for acquisition of Internet metadata at the backbone, for technical reasons that it’s not at all clear the Foreign Intelligence Surveillance Court has considered.
The FISC’s recently declassified memorandum opinion authorizing bulk telephony metadata collection contains a dismayingly cursory Fourth Amendment analysis resting on the now-familiar reasoning of Smith v. Maryland: Users voluntarily convey phone dialing information to a “third party” (i.e., the phone company), knowing that information will be retained in the company’s records for routine business purposes. They thereby “assume the risk” that these records will be shared with the government—notwithstanding any contrary promises of confidentiality—and so waive their Fourth Amendment expectation of privacy in that information. This is the so-called “third party doctrine.” The ruling in Smith has been widely and justly condemned—and as Jennifer Granick has ably argued, is of dubious relevance to NSA’s bulk collection program anyway. But let’s pretend for the moment, strictly arguendo, that this reasoning is not crazy on its face.