The NSA, privacy, and judicial activism

We have not yet commented on the decision yesterday by a federal district court judge to grant an injunction against the collection of phone data by the National Security Agency and to order NSA to destroy the records it has collected. The judge, Richard Leon, granted the injunction on the theory that the plaintiffs are highly likely to demonstrate that the NSA’s collection of metadata held by phone companies is unconstitutional. However, he stayed the injunction pending an appeal by the government.

It seems to me that Judge Leon’s decision is highly likely to be reversed by the court of appeals. It certainly should be. Years ago, in the case of Smith v. Maryland, the Supreme Court held that Americans have no reasonable expectation that telephone metadata possessed by phone companies will be kept private, and thus that no warrant is required by the government to obtain such information.

The NSA, from all that appears, is obtaining only metadata — numbers dialed and length of calls, as opposed to content or subscriber names — from phone companies. Thus, under Smith, the NSA’s collection is not problematic.

Judge Leon’s response to Smith is, in essence, that things have changed considerably since 1979 when that case was decided. He cites the vast increase in the government’s surveillance capacity and changes in people’s phone usage habits.

But these changes provide no sound basis for distinguishing Smith. That case rests on the view that, because of the nature of metadata, its collection by the government without a warrant isn’t constitutionally problematic. This true no matter the quantity of metadata the government collects.

It’s possible that the Supreme Court would decide that changed circumstances warrant limiting the holding of Smith. The Court has seen fit to limit or dispense with other old decisions in the name of striking down certain government policies intended to protect the nation from terrorism.

But this isn’t something that district courts or courts of appeals are supposed to do. John Yoo and Max Boot are right to condemn Judge Leon’s decision on this basis. It is an egregious example of judicial activism.

I also agree with Yoo that even the Supreme Court shouldn’t reconceive the rules of search and seizure in light of new Internet technologies. As Yoo explains:

[T]hat is the responsibility of our elected representatives. Only they can determine what society’s “reasonable expectation of privacy” is in Internet and telephone communications. Judges are the last people to fairly claim they have their fingers on the pulse of the American people.

Only our elected representatives can properly balance existing privacy rights (if any), against the need for information to protect the nation from terrorist attack. Judges are far too insulated and lack the expertise to make effective judgments on national-security and foreign affairs.

Unfortunately, judges — even district court judges — are too immodest and/or too power hungry to recognize this reality.


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