The end of Smith v. Maryland? The NSA's bulk telephony metadata program and the Fourth Amendment in the cyber age.

• Author: Galicki, Alexander
• Position: National Security Agency

INTRODUCTION

In June 2013, The Guardian newspaper disclosed that the United States National Security Agency ("NSA") has been collecting the telephony metadata for virtually all telephone calls made inside the United States for the last seven years. (1) The existence of the NS A program was disclosed to Guardian reporter Glenn Greenwald by Edward Snowden, a former systems operator for NSA contractor Booz Allen Hamilton. (2) This Note will argue that the NSA's bulk collection of telephony metadata constitutes a "search" within the meaning of the Fourth Amendment to the U.S. Constitution. If the NSA's bulk collection of metadata does indeed constitute a "search," the NSA program is presumptively unconstitutional as it is carried out on a warrantless and suspicionless basis. The Fourth Amendment states, in full:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (3) As any law student learns in introductory criminal procedure, the Fourth Amendment speaks only of "unreasonable searches and seizures." (4) For that reason, the initial inquiry in any Fourth Amendment analysis is always whether a "search" has even taken place. Under the Supreme Court's "search" jurisprudence, if a particular type of governmental intrusion constitutes a "search," the substantive requirements of the Fourth Amendment apply and the government must generally have obtained a warrant issued upon probable cause. By contrast, if there has been "no 'search' at all," (5) the government can constitutionally engage in the type of conduct at issue without a warrant or any level of suspicion. Defining when a "search" has taken place, therefore, is crucial because in many cases it draws the line between when the government may engage in potentially warrantless and suspicionless intrusions into the private sphere and when it must first appear before a neutral and detached magistrate to obtain a warrant issued upon probable cause. Accordingly, the Court has had to strike the appropriate balance between individual liberty and law enforcement through its "search" jurisprudence. On the one hand, the Fourth Amendment serves as an important check on governmental power and the Founding Fathers included the provision after having dealt with the British Crown's practice of using "general warrants" in the American colonies. (6) On the other hand, the Fourth Amendment inherently stifles effective law enforcement, an essential function of any sovereign state.

Seeking to balance these countervailing interests, the Court established the modern test for determining whether a "search" has occurred in United States v. Katz. (7) Justice Harlan, in his now famous concurrence, stated that a "search" has taken place when an individual has an actual (subjective) expectation of privacy in the place to be searched, and that expectation is one which society would accept as reasonable. (8) Ten years later, in Smith v. Maryland, the Court held that a single criminal defendant did not retain a reasonable expectation of privacy in twenty-four hours of telephone dialing information, which he voluntarily transmitted to the telephone company to complete his calls. (9) However, Smith stands as merely one example of the Court's broader view that under the Katz test an individual does not retain a legitimate expectation of privacy in information that he or she voluntarily exposes to a third party or the public at-large (commonly known as the "third-party doctrine"). As the Supreme Court has explained:

[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. In other words, a person cannot have a reasonable expectation of privacy in information disclosed to a third party. The Fourth Amendment simply does not apply. (10) Supporters of the constitutionality of the NSA program, including the Obama Administration, point to the third-party doctrine and especially Smith v. Maryland as a simple answer to the NSA program. (11) They contend that when the government collects the telephony metadata for all phone calls made inside the United States there simply is no "search" because, as in Smith v. Maryland, customers have voluntarily turned over their dialing information to the telephone company. (12) While it is true that the Court has a long line of precedent supporting the third-party doctrine, even before the Snowden disclosures, the Court had begun to chip away at the doctrine.

The cyber age challenges the third-party doctrine in two significant ways. First, American citizens voluntarily expose much more information to third parties and to the public at-large: Facebook, cellphones, web browsing history, and metadata to name a few. Second, that exposed information can now be analyzed using new technologies to reveal intimate details that were previously undetectable: logarithms, thermal guns, and complex databases that permit the storage and retrieval of information dating back five years. In light of these recent technological advances, the Court has been struggling with whether to abandon the third-party doctrine wholly or in part. It came close to addressing the question in United States v. Jones, (13) but instead wrote a narrow opinion by relying on trespass analysis. (14) The NSA program is now on appeal at the Court of Appeals for the Second and D.C. Circuits, (15) and the Supreme Court will likely be presented with a powerful opportunity to rearticulate a modern conception of the third-party doctrine.

This Note will argue that the Court should follow its recent trend in cases like Jones and rule that the NSA's bulk collection of telephony metadata constitutes a "search" under the Fourth Amendment. Section I will provide a historical overview of the Court's third-party doctrine jurisprudence. Section II will examine more recent cases indicating that the Court might be retreating from its decision in Smith v. Maryland. Section III will then give factual background on the NSA's bulk telephony metadata program and analyze two recent decisions, Klayman v. Obama (16) and ACLU v. Clapper, (17) which issued contrary rulings on the constitutionality of the NS A program and are now on appeal at the Second Circuit and the D.C. Circuit. Finally, in Section IV, I will conclude that if the Supreme Court is asked to review the constitutionality of the NS A program, it should hold that the long-term bulk collection of telephony metadata constitutes a "search" for which a warrant based on probable cause is required under the Fourth Amendment.

1. THE SUPREME COURT'S THIRD-PARTY DOCTRINE

   This Section will examine the Supreme Court's "third-party doctrine." Part A will explore the historical origins of the doctrine, which, according to Professor Orin Kerr, can be traced to several early Supreme Court cases involving the government's use of secret agents. (18) Part B will then analyze the Court's preservation of the third-party doctrine following its decision in Katz v. United States (19) and look at the expansion of the doctrine in a series of cases involving business records. (20) Finally, Part C will examine a separate line of cases, establishing that, as with information disclosed to a third-party, an individual does not retain a reasonable expectation of privacy in information exposed to the public at-large.

   1. The Historical Origins of the Third-Party Doctrine

      According to Professor Orin Kerr, the Supreme Court first addressed the question of whether evidence obtained by secret agents could be used as evidence in a criminal proceeding in On Lee v. United States. (21) In that case, Lee was charged with selling and conspiring to sell one pound of opium in violation of federal law. (22) While out on bail and prior to trial, Lee was working at his laundry when an old friend, Chin Poy, engaged him in conversation during the course of which Lee made incriminating statements. (23) However, it turned out that Poy was actually an undercover agent for the Government wearing a small microphone "wire," and the statements were later used against Lee in court. (24) Lee asserted that the government had violated the Fourth Amendment because Poy wearing a wire was comparable to installing a listening device or bug inside of Lee's laundry. (25) The Court rejected Lee's argument, upholding the government's use of Poy's recording at trial. (26) Justice Jackson explained that Lee "was talking confidentially and indiscreetly with one he trusted." (27) And it did not matter that Poy was wearing a wire because the recording was "with the connivance of one of the parties" to the conversation. (28)

      The Court then expanded on this line of precedent in three cases decided during the (1960) s. (29) In Lopez v. United States, the defendant attempted to bribe an IRS agent who was wearing a concealed wire. (30) The recorded statements and the agent's testimony were admitted as evidence against him at trial. (31) The Court rejected the defendant's argument that the recording of the conversation had been obtained in violation of his rights under the Fourth Amendment. (32) Next, in Lewis v. United States, the defendant invited an undercover federal narcotics agent into his home on two occasions and sold him large quantities of marijuana. (33) The narcotics agent subsequently testified at trial about what he had seen and heard in his encounter with the defendant. (34) Justice Warren, rejecting any claim under the Fourth Amendment, explained that "[d]uring neither of his visits to [the...