Two federal judges—Richard Leon, in the District of Columbia, and William H. Pauley III, in the Southern District of New York—have now ruled in conflicting ways on the constitutionality of the National Security Agency’s bulk collection of telephony metadata, or call records. Leon found that it almost certainly violated the Fourth Amendment; Pauley found that it clearly did not. Both look to Smith v. Maryland, a 1979 Supreme Court ruling on the phone records of a robbery suspect, often cited by the N.S.A.: Leon finds that the circumstances and even the meaning of the word “telephone” have changed so much that Smith is not helpful here; Pauley regards it as decisive, and says that unless it is overturned the N.S.A. can pretty much do what it will with telephony metadata. The differences between the judges’ rulings did not have to do with the subjects of each case, which were similar, or the quality of the plaintiffs—Larry Klayman, the conservative activist, before Leon; the American Civil Liberties Union before Pauley—or their arguments. Instead, it had to do with each judge’s choice of awe or skepticism toward the government, tendency to have his mind clouded by words like “terrorism” and “technology,” and grasp of basic math.
The contrast can be seen in the two judges’ responses to the way the government queries its database of phone records—those of almost every American. It starts with a “seed”—maybe a phone number of someone it suspects (and only suspects) is connected to a foreign terrorist group. It then makes three “hops”: looks at all the numbers that the seed number has called or been called by, each number that those have been connected to, and each that those have been connected to. Leon does some calculations and sees that the number of phone numbers gets big very quickly (if you call a hundred friends, and they each call a hundred friends…). They also get attenuated: he cites the example of a suspect calling a pizza place, and the way every other pizza orderer is then inveigled. (I wrote about this “Domino’s hypothetical” when Judge Leon’s ruling was issued.) But just as interesting was Leon’s response to the government’s note that it has done this with three hundred seeds, yielding a number of American phone records “substantially larger than 300, but is still a very small percentage of the total volume of metadata records.”
The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context…. It belabors the obvious to note that even a few million phone numbers is “a very small percentage of the total volume of metadata records” if the Government has collected metadata records on hundreds of millions of phone numbers.
Pauley, looking at the same statement, repeats it primly and uncritically twice: “only a ‘very small percentage of metadata records…’ ” He is just relieved that terrorists, or those connected to them even by “filaments,” might be found. (Last week, a Presidential review panel found that the program was not, in fact, all that useful.)
And yet if Pauley’s opinion offers a single instruction for the N.S.A, it is this: go big. The more people whose data was swept up, the less this judge apparently thinks he has to say about it. Reading his fifty-four-page opinion, one wonders whether, if the intelligence community could only find a way to violate every single American’s rights, and tell a story about how that protected them, he would look around and find that no one had been hurt. “This blunt tool only works because it collects everything,” he writes. While briefly acknowledging that “unchecked” it could violate civil liberties, he is quite satisfied with the checking in place now. To let the A.C.L.U. challenge the N.S.A.’s collection of its phone records on statutory grounds (that is, by arguing that the Patriot Act was being misused) would be “an absurdity”—absurd, to his mind, because Congress didn’t intend for ordinary Americans to know about this, and because there are so very many of them: “It would also—because of the scope of the program—allow virtually any telephone subscriber to challenge a section 215 order.”
Quoting a decision on the regulation of the milk market, Pauley calls that result “hard to fathom.” Leon agrees that Congress, “for better or worse,” intended for only phone companies to bring statutory challenges—he also cites the milk decision—but argues that secrecy itself should not be a shield, certainly not against constitutional challenges. Pauley, in contrast, is struck by “another level of absurdity in this case”:
The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden.… It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’s intent. To hold otherwise would spawn mischief….
Say what one will about Snowden, but calling the idea that his revelations could lead to court challenges “an absurdity” is itself absurd. Why can it not “possibly be” that what we learn from someone the government despises (not yet convicted of anything, incidentally) could end up preventing Congress, or any other branch, from doing what it wants to do? Pauley’s logic here strikes one as dangerous, on multiple civil-liberties counts, including those concerning press freedoms. Mischief can be a useful thing for a democracy.
But bigness, again, is something Pauley thinks is useful for the government. The N.S.A.’s argument is that it is allowed to collect records “relevant” to a foreign terrorism investigation, and that includes everybody:
The ACLU argues that the category at issue—all telephony metadata—is too broad and contains too much irrelevant information. That argument has no traction here. Because without all the data points, the Government cannot be certain it connected the pertinent ones.
This seems exactly backwards. It tells the government that if you can construct a tool that relies on broad intrusiveness—makes it an integral part—and then think of a way that that tool could, in theory, have prevented 9/11, then arguments against it have no “traction.” The more overreach is built into a program, the less it can be challenged. This may have been part of what it Judge Leon meant when he called the N.S.A.’s metadata approach “almost Orwellian.”
(One note, too, on Pauley’s hypothetical about how this program might have stopped 9/11: it relies on the use of “telephony metadata” to reveal not just what number Khaled al-Midhar, a member of Al Qaeda then in San Diego, was calling, but his location at the time. The N.S.A.’s use of cell-phone location data, in this and other programs, is something about which the government has been alarmingly dodgy in its reassurances.)
That large-scale operations reassure Pauley can also be seen in his discussion of Smith v. Maryland—the crucial case in which the Supreme Court found that when you make a call you ought to know that the phone company can see the number, and thus can’t expect it to be private. Pauley suggests that Smith was a closer call than the N.S.A. case, because, he writes, “The privacy concerns at stake in Smith were far more individualized than those raised by the ACLU”:
Smith involved the investigation of a single crime and the collection of telephone call detail records collected by the telephone company at its central office, examined by the police, and related to the target of their investigation, a person identified previously by law enforcement.
“Nevertheless,” Pauley writes, the government won. But might it have won because the investigation was individualized, not despite that? The phone number was being followed because the suspect, last seen driving a 1975 Monte Carlo, was thought to be making threatening calls to a witness. That is far from looking at the phone records of innocent Americans for what Pauley—approvingly—calls even “gossamer” ties to suspects.
How does Smith speak to modern bulk collection, and all the algorithms we’re run through? To have any expectation of privacy, even about one’s location at a given time, maybe in a bedroom or a polling place, does one have to become a cell-phone-rejecting eccentric? (There are a lot of jobs you couldn’t have if you did.) As Leon pointed out in his decision, the Supreme Court could not have contemplated how revealing phone records would be, or what a phone might become, when it issued its decision in 1979. That case needs to be reëxamined. Pauley and Leon disagree about bigness, and also about a constitutional question. The metadata question should be headed to the appeals courts in each of their districts—and then, the sooner the better, for a hearing before the Supreme Court.