Expectation of Privacy

In Klayman v Obama, DC District Federal Judge Richard Leon issued an injunction requiring the government to stop collecting metadata on Americans’ phone calls, ruling the NSA’s program likely unconstitutional.  Leon then stayed his injunction pending appeals.

The Wall Street Journal had some thoughts about Leon’s ruling; as some might expect, I have some thoughts about the WSJ‘s thoughts.

While obtaining the content of phone calls requires a warrant, the High Court ruled that people have no “reasonable expectation of privacy” for information about phone calls such as the date, time and length of their calls and the numbers they dial.  Such transactional data inevitably belong to the service provider, not to individuals….

This is plainly fallacious: that I surrender some of my private data to a third party in no way alters my expectation of privacy.  I expect that third party to protect my data as I would; I expect that third party to protect my data as though they were the third party’s own.  We even have laws on the books requiring such safeguarding; the principle is well established.  It’s true enough that the Supremes have ruled on this before, claiming no expectation of privacy (on a wireless telephone wiretap case some decades ago).   However, that Court had to do a fair amount of mind reading to reach that lack of expectation, and it’s not the first time the Court has been wrong.  Leon is presenting the Supremes with a golden opportunity to correct this particular error.

Contrary to Judge Leon, the reality of the information age is that we all have less expectation of privacy.

This is simply wrong.  I’ve not at all lowered my expectation of privacy; in fact, I expect these advances in technology to enhance my privacy, not deprecate it.

No one who makes calls and emails on a smart phone, visits an e-commerce website, uses a credit card, drives with an Easy Pass or otherwise benefits from modern technology can truly believe that he is not entrusting data to third parties about personal behavior.

This is a careless conflation of two separate issues.  In no way do I reduce my expectation of privacy; I simply expect that third party to safeguard my data.  Those third parties even have procedures to allow me explicitly to instruct them either to safeguard my data or not collect them at all.  My smart phone even has the means to turn off the on-board GPS—and if I turn it on, there’s nothing in that act that permits my location data to be collected for any use but my own.  There’s nothing at all in my use of my smart phone (or my car’s mapping facility) that authorizes the collection of my behavioral data beyond the specific task for which it’s collected—most especially not for government collection.

And, to get to the conflation, the fact that a third party comes into possession of my personal data has absolutely nothing to do with the fact that those data concern my personal behavior.

Well, so what?  The NSA isn’t surveilling lighters at rock concerts, or creating personal mosaics.  The agency is collecting the same basic telephony metadata.

It’s amazing to me that the WSJ would make this argument at all, it’s so plainly fallacious.  The government might decide, at any point, that it’s time to begin surveilling lighters, or the rock concert performers.  Or anyone else about whom it decides to manufacture a suspicion.  Or create those mosaics just because—it certainly now has the data with which to make a good start.

No.  The whole structure of our social compact and of our Constitution is to effect prior restraint of government, not to correct it after it has done its wrong.  That’s a one way street, too: that we tell our government that it cannot engage in prior restraint of us in no way means we cannot engage in that prior restraint of government.

And this, written by Robert Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, in a separate WSJ op-ed about Klayman:

Consider another, more common, type of warrantless search.  Every time Americans catch a flight at a commercial airport, they first must submit to intrusive searches by federal agents without the slightest probable cause or individualized suspicion.  Yet every federal court to decide the issue has held that these searches are “reasonable” and thus consistent with the Fourth Amendment (which prohibits only “unreasonable” searches).

Clearly, the privacy interests infringed by airport searches are far greater than having a government computer glance through our telephone bills to make sure we have not been communicating with foreign terrorists.

This is a specious argument.  Turner carefully ignores the vast hue and cry over these searches—based entirely on their privacy invasion aspect—by the travelling public.  There is, indeed, a very strong expectation of privacy, the mind-reading a judiciary insulated by design from the public notwithstanding.

Expectation of privacy is alive and well everywhere but in the minds of most of that insulated judiciary.  Leon got this right.

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