I have now read through Judge Richard Leon’s opinion enjoining bulk metadata collection under Section 215 of the Patriot Act. It’s an odd document. For one thing, it’s focused on a constitutional matter on which the 215 program is—at least under current doctrine—on pretty solid ground. And it ignores, because of the judge’s Administrative Procedures Act ruling, the issue on which the 215 program stands on far shakier ground: that is, the statutory question of whether the program is, in fact, authorized by Section 215 of the Patriot Act.
I don’t think there are many conceivable panels of the D.C. Circuit Court of Appeals that will not regard this case as controlled by Smith v. Maryland, the 1979 case in which the Supreme Court wrote:
we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills.
Judge Leon makes a powerful case that times have changed since the Supreme Court decided Smith, which dealt with a pen register device against a single suspect—and long before the era of Big Data and cell phones. Still, Smith declares a category of data as outside of the ambit of the Fourth Amendment, and its collection by government not a search. “We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not ‘legitimate.’ The installation and use of a pen register, consequently, was not a ‘search,’ and no warrant was required,” reads the holding. And unfortunately for Judge Leon—and for the plaintiffs in this case—that category of data is precisely the sort of data the bulk metadata program collects. This will weigh more heavily in the D.C. Circuit than it did in Judge Leon’s courtroom, so expect, at least in at the first appellate level, the half-life of this opinion to be short.
The harder question is how Judge Leon’s analysis—which is thus best understood as a kind of amicus brief to the Supreme Court—will play before the justices. Here there’s at least some more reason to think it might gain traction. In the Jones case, after all, the majority of justices declared long-term GPS tracking of a suspect to be a search, though for very different reasons, and Justice Sotomayor openly contemplated revisiting the third-party disclosure rule.
But here’s the problem: Are five justices really ready to shut down a major intelligence program that administrations of both parties have insisted represents a crucial line of defense against terrorism? Judge Leon can brush away, as he does in this opinion, the suggestion that the 215 program plays an important role in the national defense. But he does so knowing that he is staying his own ruling and that it will only go into effect if higher authorities agree with his analysis. In other words, if this opinion ever has legs, Judge Leon will have set table, but he will not have served the food, and nobody will blame him if the meal goes off poorly.
But the justices will not have that cover. If they agree with Judge Leon, this program will shut down—and they will be accountable. Are there really five votes to do that? Leaving aside the doctrinal questions, I doubt it. When everything’s said and done, I can’t count five votes on the Supreme Court to bear that kind of responsibility for the next bad thing that might happen.