Surveillance

The Lynchpin of the Meta-Data Opinion

By Paul Rosenzweig
Monday, December 16, 2013, 3:23 PM

Ben has already linked to Judge Leon's remarkable opinion today, holding that the NSA metadata collection program is unconstitutional.  The critical passages from the opinion begin on page 43, when Judge Leon turns to consideration of the Fourth Amendment issues.  A quick read suggests three critical analytic steps (which I confess to finding rather unpersuasive):

  • Judge Leon dismisses Smith v. Maryland (a case that the FISC considered controlling) on the ground that ... well ... it's old.  The most important reason he distinguishes Smith is the changed circumstances that surround our use of cell phones: "I cannot possible navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones."  I guess that's one way to treat Supreme Court precedent.
  • Judge Leon also looks to the case last term in United States v. Jones and finds in the two concurring opinions support for his interpretation.  As he characterizes it "five justices found that [prolonged GPS tracking] violated Jones' expectation of privacy."   In essence Judge Leon created a constructive majority from two separate concurring opinions.  The only flaw I can see in that process is that, of course, the 5 justices didn't do it that way.
  • Judge Leon also chooses to disregard the warnings of City of Ontario v. Quon that the judiciary should not elaborate on the Fourth amendment implications of new technology before its capabilites have become clear, on the ground that phone calls and text messaging are settled technology.  Of course, much the same would have been said of the Quon pager technology.

Much ink will doubtless be spilled about Judge Leon's opinion.  Some will call it brave; others addle-pated.  Having just read it I would say "prolix" and "not of long duration."  The first I am certain of; the later is a guess.