NSA Spying in the Courts

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel.

Cato senior fellow and Georgetown University law professor Randy Barnett joined me this week on a brief to the Court urging it to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation.

If the Court finds that the statute allows this sweeping a warrant, we argue that it must consider the flat Fourth Amendment bar against general warrants, as well as the unreasonableness of collecting all information about Americans’ phone calls for speculative future investigations. The brief urges the Court to reconsider Smith v. Maryland and the “third-party doctrine,” which purports to deny Fourth Amendment protection for information people have shared with others. Smith will not survive its next encounter with the Supreme Court. In that case, police officers learned that a suspected burglar was calling the house of the woman he had stolen from. They asked the telephone company to install a pen register on the burglar’s phone, which the phone company did voluntarily. The Court found that this was reasonable and did not require a warrant.

It does not follow from the result in Smith that mass surveillance of all Americans’ phone calls is similarly reasonable. With this data, the government can draw inferences about the intimate relations, family life, legal counsel, business negotiations, and medical treatments of wholly innocent individuals. The Court should either distinguish or reverse Smith, and it should reject or reconsider the third-party doctrine, as Justice Sotomayor suggested in the 2011 Jones decision regarding attachment of GPS devices to people's cars.

Extraordinary appeals like this are rarely granted, and future cases will probably decide the fate of the NSA’s secret mass surveillance programs, but this brief informs the Court and the legal community about the issues. The Solicitor General, who ordinarily might ignore such an appeal, felt obligated to file a response to it. NSA spying will have a hard time when actual courts start to work on it. In our brief, Barnett and I argue that the Foreign Intelligence Surveillance Court is unlike any Article III court, and "more accurately conceived of as an advisory body."