CAN JUSTICE SOTOMAYOR STOP THE N.S.A.?

The Verizon Business customers who learned, this week, that the company had given records of every call they made within and from the United States to the National Security Agency might also have been surprised to find out that, under current law, the government did not need a warrant (or probable cause) to access that information. The records are not considered private, and all the government needed was an order from the secret Foreign Intelligence Surveillance Act Court. That might sound like a safeguard against government overreach, but the court approved all but one of the five thousand one hundred and eighty applications submitted for surveillance and physical searches between 2010 and 2012. It is hardly what you would call a watchdog.

How could phone records—“telephony metadata,” as the order called them—not be considered private? As Jane Mayer has written, metadata can contain numerous revelations, not just about who we’re talking to and for how long but about where we are. The answer has to do with a case that dates back more than thirty years, and which the Supreme Court may be ready to reëxamine. Based on a reading of recent opinions, one of the key figures in such a reëxamination is likely to be Justice Sonia Sotomayor.

In 1979, in Smith v. Maryland—a case involving an automobile theft—the Supreme Court said that it was not a violation of the Fourth Amendment, which prohibits unreasonable searches, for the government to ask a phone company to install a “pen register” to track the incoming and outgoing calls of a particular number, because there was no reasonable expectation of privacy for information given voluntarily to a third party—in this case, the phone company. Justice Harry Blackmun wrote:

Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

And that, in short, has been the law ever since. But there is reason to believe that the Supreme Court may now take a different view of the N.S.A.’s wholesale harvesting of phone records, even if those records generally serve the government’s efforts to investigate and prevent terrorism. Last year, the Court prohibited the use of warrantless G.P.S. tracking devices on individuals’ cars, and though it upheld the collection of DNA samples of all arrested (but not convicted) individuals this week, the ruling was made despite the strong dissent of Justice Antonin Scalia and several stalwart liberals—an unusual configuration.

Sotomayor has joined a growing number of jurists who argue that the law may not have kept up with the huge increase in available information. Her concurrence in the G.P.S. case, U.S. v. Jones, was prescient. She wrote that “it may be necessary to reconsider the premise” of Smith and related cases:

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. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.

She added, “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.” Sotomayor, as a former prosecutor, is well aware of the trade-offs between investigating crimes and protecting rights.

The F.B.I. may find it convenient to have a very large pool of phone records on hand, to which it can apply whatever complex algorithms it uses to determine terror networks. But convenience can’t be the standard for a wholesale violation of citizens’ privacy rights. Moreover, when the U.S. government engages in such tactics, it gives tacit approval to less democratic countries that do the same. It is one thing to track terrorists or suspected terrorists. It is quite another to track everyone. And yet that is precisely what our government seems to be doing.

The Obama Administration’s overzealous prosecution of leakers pales in comparison to the revelation that phone records have been disclosed to the government on a contemporaneous basis for at least the past two months, and possibly as far back as seven years. The government claims that its actions are lawful, and that Congress has been repeatedly briefed on the program. Senator Dianne Feinstein said that the program was permitted under the “business records” provision of the Patriot Act, which allows government investigators to demand such records without disclosing the target of the investigation or the reason the files are needed. When Congress reauthorized certain provisions of the Patriot Act in 2011, it stipulated that documents only have to be “relevant” to a particular investigation in order to be requested by the government. But, if “relevant” means every phone call made by a telecom company’s customers, it actually means nothing. It is so broad as to be a meaningless restraint, an excuse to overreach. (Senator Feinstein has said that this is simply a continuation of a program that was initiated in 2006.)

If nothing else, the landscape has changed substantially since 1979. In one way or another, this issue may soon be squarely in front of Justice Sotomayor and her colleagues.

Photograph by Brooks Kraft/Corbis

Read more of our coverage of government surveillance programs.