Are You Consenting to Surveillance Right Now?

A ruling against the NSA's phone record database highlights the perilous condition of privacy in America.


After her purse was snatched in 1976, Patricia McDonough began receiving threatening phone calls from a man who identified himself as her robber. Following one of the calls she saw a car she recognized from the scene of the crime slowly pass by her house in Baltimore.

Police later spotted the same car in McDonough's neighborhood, driven by a man who matched her description of the purse snatcher, and used the license plate number to identify the owner as Michael Lee Smith. Based on this information, the police asked the phone company to install a "pen register," which recorded the numbers dialed by Smith for a couple of days. One of those numbers was McDonough's.

As a federal judge pointed out on Monday, this brief monitoring of a specific criminal suspect bears little resemblance to the National Security Agency's comprehensive database of phone records, which includes information about every call placed in the United States during the last five years. Yet the Obama administration argues that Smith v. Maryland, the 1979 decision in which the Supreme Court approved the warrantless surveillance that incriminated Smith, means there is no constitutional problem with treating every American as a potential terrorist. Amazingly, the government's interpretation may be right.

U.S. District Judge Richard Leon, who issued a preliminary injunction against the NSA's database, rejected the government's reliance on Smith. Not only is the NSA casting a vastly wider net than the cops in Baltimore, he said, but the ubiquity of cellphones makes telephone "metadata"—information about who called whom, when, and for how long—much more revealing than it used to be.

"Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person's life," Leon wrote. "The Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones."

Leon's argument would be compelling if Smith did not include sweeping language that seems to rule out Fourth Amendment challenges to government collection of information about you, no matter how sensitive, if you have divulged it to someone else. "This Court consistently has held," the justices said, "that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

The implications of this misbegotten "third party doctrine" are chilling at a time when so much of our personal information, including email, photos, Web browsing histories, cellphone locations, and private files of every description, is stored on computers outside of our homes. According to the Supreme Court, remotely stored information receives only as much protection as legislators decide to give it. Unless a statute says otherwise, government snoops may peruse our electronic lives at will.

The NSA's phone record database is just one example of where this logic can lead. Leon likened the program to the "general warrants" loathed by the Framers, since it involves the collection of unspecified evidence without any basis for suspicion.

"I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval," Leon wrote. "Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment."

Surely it does, but it is hard to see how the Supreme Court can reach that conclusion without reconsidering the third party doctrine, as Justice Sonia Sotomayor has recommended. "This approach," Sotomayor observed last year, "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." Privacy cannot survive if information shared with anyone is automatically exposed to the government.

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  1. Sounds like a solid plan to me dude.

  2. Why were the Maryland police unable to get a warrant to surveil Smith?

    1. They didn’t even try to get a warrant.

      1. The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. Id., at 73, 75. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. Id., at 74. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence.

        FindLaw The link may not work for everyone.

  3. I’m telling you, this sort of thing was covered by SCOTUS over a decade before the 3rd party doctrine. FBI ignoring that decision resulted in numerous real terrorist bomber cases getting dropped.

  4. Is there some kind of link voodoo going on here, or have the squirrels finally went on a massive reign of terror?

    1. Anyway, is the due wearing horn rimmed glasses, or are those his eyebrows? Or is he the wise old owl from the tootsie roll commercial of my youth?

    2. and this is why the National Squirrel Agency is necessary. If this august organization goes away, then the squirrels have won.

  5. “Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic?a vibrant and constantly updating picture of the person’s life.”

    Obviously the solution is for everyone to make many random calls/texts every day.

    Is there an app for that yet?

    The next iteration, of course, would be to make “wrong numbers” and “pocket dials” punishable offenses.

    1. Anyone who is found to have ‘butt dialed’ someone, should just be sent to Guantanamo without a trial, and then hopefully eliminated from the gene pool. People who carry a phone in their back pocket are down the gene pool list so far that they’re somewhere between career politician and lawyer.


    Under both Democrats and Republicans, the country continues evolving into an economic, political, and social tyranny ( Examples? 1) The IRS gaining access to all your financial information without a court-issued warrant. 2) The USA, using its economic might, imposing extra-territoriality onto small, defenseless countries from the Cayman Islands to Switzerland. 3) The executive branch imprisoning American citizens indefinitely without right of trial or even habeas corpus as guaranteed in the Constitution . . . and without a declared war. 4) The President sending paid-assassins to murder U.S. citizens who verbally promote support of the Mohammedan war against the West with no oversight from Congress or anyone else.

    We never should forget that unwarranted loss of liberty for any one of us . . . no matter who or why . . . is loss of liberty for all of us. It begins as a narrow path trod by only a few under seemingly compelling conditions but evolves into a wide toll-road trod by us all under arbitrary and capricious whims of those who hope to change “White America” and are succeeding … ask Obama’s preacher of more than twenty years.

    The cost of the toll? Our individual right to life, liberty, property, and the pursuit of happiness.

  7. Many privacy folks–including the author here–make the fundamental error of assuming the phone company’s records are the customer’s records. They’re not.

    The information being referred to here, from pin registers through cell phone tower locations, is actually information about the operation of the phone company equipment. Third party doctrine is awkward and imperfect, but it seems to be a recognition of this important fact.

    Thus, articles like this are equivalent to “There oughta be a law!” mentalities seeking to establish a protection that isn’t naturally occurring or factually obvious.

    Practically, if we stress that the information demanded is the phone companies’ then the government vs company battle might be less one-sided than government vs individual.

  8. As a question to any of H&R’s lawyers out there, is there any active debate within the legal profession about the role of stare decisis as a binding principle of the Supreme Court? As a general rule, it makes sense that lower courts should show deference to the rulings of higher courts, but should the Supreme Court be bound by the rulings of previous Supreme Courts or should their rulings be made in a vacuum?

    The “third party doctrine” is obviously unjust and unconstitutional, but there is a real possibility that the Supreme Court will refuse to modify this doctrine, either by declining to review the case at hand or by defining the ruling so that the “third party doctrine” is unaffected. This seems to highlight a paradox of the stare decisis principle when utilized by the highest court: if the court is bound by previous rulings, how can it truly evaluate the constitutionality of a law if the Constitution is not their primary source of reference?

    Can anyone recommend any reading material on this issue?

  9. But here’s the problem, when the feds come knocking on the 3rd party’s door to get the information, there is nothing they can plausibly do to stop it. Therefore, if you want you privacy secure, you must become a Luddite. In fact, you would have to go to pretty extreme measures to avoid the ubiquitous dragnet.

    Doesn’t much sound like we are free to pursue happiness at that point.

  10. Yet the Obama administration argues that Smith v. Maryland, the 1979 decision in which the Supreme Court approved the warrantless surveillance that incriminated Smith, means there is no constitutional problem with treating every American as a potential terrorist. Amazingly, the government’s interpretation may be right.

    Their interpretation is “right” only if you subscribe to the pernicious doctrine that a government court gets the final say on the meaning of a document meant to limit government power.

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  13. “This Court consistently has held,” the justices said, “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    Since anyone who lives in the real world, or even close to it, and doesn’t live in a cave on some other person’s property, who doesn’t don fig leaves for clothing, hunt mice for dinner, and gather wild onions, is, by default, forced to turn over lots and lots of information about themselves to third parties, whether they like it or not, this statement is tacitly erroneous. Try having a bank account, buying a car or house, renting an apartment, getting a job, without delving tons of personal information. The list is virtually endless.

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