The
decision handed down by the Second Circuit Court of Appeals Thursday that the Patriot Act did not authorize the NSA's practice of bulk collection of Americans' cell phone data was a statutory decision, not a constitutional one. The court ruled that bulk collection is not authorized under the law as it is written, not whether it violated the constitution's privacy protections. The court didn't ignore these constitutional issues, but more or less put
Congress on notice that courts would indeed be watching what they do with this program in the next few weeks.
The constitutional issues . . . are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary. Ideally, such issues should be resolved by the courts only after such debate, with due respect for any conclusions reached by the coordinate branches of government. [p. 93]
The court also
called in to question the legal theory of "third-party doctrine" that the government has been using to justify going after Americans' records—not just cell phone records, but internet activity, library records, financial information, etc.—without warrants. That theory stems from from the Supreme Court’s 1979 decision in
Smith v. Maryland, which established the theory that we give up a certain amount of our constitutional privacy protections on information we willingly hand over to private companies. Like phone records.
Head below the fold to learn more about those phone records.
“Given the amount of metadata that Americans create every day ... I think it’s very likely that the status of the third-party doctrine ends up before the Supreme Court again some time soon, whether through one of these cases or another,” said Patrick Toomey, an attorney with the American Civil Liberties Union, which brought Thursday’s case against the government.
“The world today involves the creation of so much metadata, and the government’s appetite to get its hands on that data has proven so limitless, that I think the courts—as the Second Circuit previewed—will have to grapple with it,” he added. […]
Two other cases are waiting for a decision from the liberal-leaning Ninth and D.C. Circuit Courts of Appeals, which could rule on the constitutionality of the NSA's programs.
Those cases are likely to reach the Supreme Court by 2017, when the court will have to revisit third-party doctrine. Justice Sonia Sotomayor gave a
possible preview of that in her concurrence on a 2012 case,
U.S. v Jones which challenged the warrantless use of a GPS tracker on a suspect's car.
"It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach 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."
That was a theme echoed by Judge Gerard Lynch in Thursday's ruling: "[I]n today's technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs," he wrote. That's a reality Congress has to grapple with now with the Patriot Act, and one the Supreme Court will have to decide.