President Obama called this morning for what he characterized as a significant overhaul of the NSA’s data mining program. The program was brought to public attention last year when former NSA contractor Edward Snowden leaked millions of classified documents to news sources, exposing the extent of the federal government’s intrusion into our privacy.
While we applaud the president for calling for a change in this program-effectively reducing the amount of power and authority he holds-it’s too early to say whether these changes will go far enough. [For an explanation of what the president’s proposals are in “plain English,” the Washington Post‘s The Switch blog has a good article.]
The NSA’s data collection program is legal. But its legal history is cloudy. It depends on a 1979 ruling from US Supreme Court that declared the collection of metadata without a warrant does not violate the Fourth Amendment of the Constitution’s protections against unlawful search and seizure. The case, Smith v. Maryland, involved police officers obtaining the phone numbers dialed by a burglar’s home phone. This information was useful in arresting and convicting the burglar. The burglar then appealed his conviction, claiming that his phone records had been illegally obtained by authorities in violation of his Constitutional rights. The case went all the way to the United States Supreme Court, who had to decide whether the collection of this kind of data was constitutional. The Court ruled in a 5-3 decision (with one justice abstaining) that the collection of metadata without a warrant was constitutional because people voluntarily surrender their metadata to third parties (in this case, the phone company) with no expectation of privacy. Since 1979, this ruling has justified the collection of metadata.
However, the world has obviously changed tremendously since then. Recently, federal district court Judge Richard Leon stated in an opinion that the NSA’s data collection program does violate the Fourth Amendment and that the 1979 Supreme Court ruling is no longer valid because the nature of metadata has changed so drastically since then. Shortly thereafter, another federal district court judge, William Pauley, released an opinion stating that the data collection program is constitutional.
Perhaps this issue will ultimately be solved by the Supreme Court deciding to overturn Smith v. Maryland. But hopefully it won’t have to come to that; hopefully, President Obama and Congress can work to change the laws of this country to better protect the privacy of its citizens. After all, we must never forget what Benjamin Franklin so presciently said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”