Prediction: Fourth Amendment Evolves in 2014

Jennifer Granick

When should courts follow legal precedent and when should the law change? This is a debate that underlies this month’s contrary decisions about the constitutionality of government collection of telephone call metadata under section 215 of the USA PATRIOT Act. And despite this week’s dual holdings in favor of the government–on this issue and on the issue of laptop border searches–a judicial consensus may be emerging that the Fourth Amendment must evolve along with technology and government surveillance capabilities.

In the first phone metadata opinion, issued December 16th in the case of Klayman v. Obama, Judge Richard J. Leon of the District Court for the District of Columbia held that Smith v. Maryland did not validate the mass collection here. For those new to this issue, Smith is a 1979 Supreme Court case that held that phone numbers dialed are not entitled to Fourth Amendment protection because the dialer has no reasonable expectation of privacy in the numbers. Rather, the subscriber cannot expect privacy in, and assumes the risk that, the phone company will disclose the numbers she dials to other people, including the government. Smith has its defenders and detractors. George Washington University Law Professor Orin Kerr and I have debated its continuing viability on these very pages and Justice Sonia Sotomayor has suggested that the time has come for Smith–and the so-called third party doctrine based on it–to come to an end.

Judge Leon agreed with the view that Smith is irrelevant to modern bulk metadata collection programs involving far more and more detailed information about essentially every American. People do have a reasonable expectation that the Government will not collect and store for five years their telephony metadata for purposes of high-tech data analysis without any case-by-case judicial approval.

Then, on December 27th, Judge William H. Pauley of the Southern District of New York upheld the section 215 program in ACLU v. Clapper, saying that Smith v. Maryland controls for Fourth Amendment purposes. Primarily, Judge Pauley seemed influenced by the idea that the calling records in question were owned by Verizon, and not by the plaintiffs. [That foundational assumption is wrong. The Telecommunications Act defines telephone numbers dialed, information contained in phone bills, and other information relating to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service as “customer proprietary network information” and prohibits phone companies from disclosing or using it in statutorily unapproved ways. So, to the extent property rights answer the Fourth Amendment question, US law pretty clearly says that phone numbers dialed belong to the consumer, not the company. Also, they are private.]

Pauley also made the argument that if one man’s dialed phone numbers are not private, than neither are everyone’s. “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search”

It is that purely mathematical view of the Fourth Amendment that I believe may be on its way out. Judge Leon did not accept it, instead holding that a difference in scope is a difference in kind. Nor does Judge Edward R. Korman of the Eastern District of New York in the ACLU’s other defeat of the week, today’s Abidor v. Napolitano decision. Abidor is a challenge under the Fourth and First Amendments to the Customs and Border Patrol (CBP) guidelines and practices for searching electronic devices at the US borders. Judge Korman dismissed the ACLU’s challenge on standing grounds, but nevertheless assessed the merits of the underlying claims. With regards to the Fourth Amendment, the court agreed with the Ninth Circuit in US v. Cotterman that “quick looks” at data do not require any suspicion at all, and then proceeded to assess whether the Fourth Amendment means a comprehensive forensic search of digital data at the border can only be undertaken based on reasonable suspicion.

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