Is Digital Privacy As Good As Gone?

January 22, 2014 in Freedom of Information

Whether you agree with Edward Snowden’s actions leaking information on classified NSA programs or not, it is hard to argue with the fact that he has started a debate on civil liberties issues in the United States.  For more on the parameters of the debate, you may want to look at the piece that our friend, Ruth Marcus, published in her column in the Washington Post following our discussions on Snowden at The Aspen Institute.  The outcome of this debate will determine the extent of our digital privacy, and the implications of it recently reached the highest levels of our government.

Is Digital Privacy Gone?

In his first major speech on U.S. surveillance programs, late last week President Obama announced a change of policy that would place some restrictions on NSA access to domestic phone records. The new policy is a change to only a small piece of a much larger U.S. surveillance puzzle – the President will now require court approval to search domestic call records collected in secret since 2006 – and will not end the larger discussion on civil liberties and domestic surveillance. For one thing, recent competing interpretations of the constitutionality of NSA programs in federal courts will likely result in a case being heard soon at the Supreme Court.

Both Sides Have Faults

In a recent article by The New American, it is argued that Southern District of New York Judge William Pauley III wants to have his cake, and eat it too.  The article shows that Pauley argues that the NSA bulk metadata program is legal, despite the fact that it ‘imperils the civil liberties’ of every citizen.

On the other side of the spectrum, Judge Richard Leon ruled late last year that the NSA’s bulk metadata program is a violation of the 4th Amendment.  Judge Leon analyzed the program through Katz, which among other things ruled that a conversation is protected from unreasonable search and seizure if it is made with a reasonable expectation of privacy.

So which has it right?  The answer probably lies somewhere in the middle.  Despite the argument made in The New American article, Judge Leon’s decision was not without its own faults.  Judge Leon argues that the case that is typically used to analyze government surveillance of this type of data, Smith v. Maryland, is too old to be used anymore.  Smith is a case from 1979 that declares some data, such as metadata, is outside the protection of the 4th Amendment.  Collecting and surveilling this category of data was found to not be a government search in Smith because the person providing the information had no reasonable expectation of privacy.  Although Smith was decided before the proliferation of cell phones and ‘big data’, the information being collected was basically the same: it was phone numbers and other ‘metadata’, rather than substantive conversations.  But even today, the pen registers used to collect the information discussed in Smith pales in comparison to the wide-scale information gathering conducted by the NSA.  Pen registers are applied to a single phone line — not the literally millions of phone numbers sucked up in the current scheme.

Only Through Active Debate and Participation

Further, there is another problem beyond the complex analysis of constitutional issues that both Judge Leon and Judge Pauley see as being on their side. This problem is more political.  Will the Supreme Court really be bold enough to shut down a sizeable intelligence program that has bipartisan support?

Only through continued debate and active participation of all Americans on this topic, will we be able to maintain a balance between security and privacy – digital, or otherwise.

If you have questions about these new rulings mean for your digital security, or what privacy rights you have under the law, feel free to contact the Law Offices of Adam D. Perlmutter, P.C. today.  These are important issues that will continue to shape our future both now and well into the future.