Security-State Creep: The Real NSA Scandal Is What's Legal

The Court has failed to develop a robust system for applying the Fourth Amendment meaningfully to the questions of the 21st century.

"We doubt," the Supreme Court held, "that people in general entertain any actual expectation of privacy in the numbers they dial." And even if they did, the opinion continued, such an expectation would not be a "reasonable" one, for once you've disclosed anything to a third party, you cannot "reasonably" expect it to remain private.

That decision, in a case called Smith v. Maryland, is highly relevant again today. The Court decided that a local police department did not violate the Fourth Amendment ("unreasonable searches and seizures") when, without obtaining a warrant, the police asked a telephone company to record all the numbers dialed from a suspect's home. The year of that decision? 1979, long before the rise of our modern, counter-terrorist security state.

But our post-9/11 terrorism fears are only half the reason that that date places the case squarely in another era. Technological change in recent decades has transformed what sorts of "searches" and "seizures" are possible -- so much so that it hardly makes sense to refer to mass government surveillance of the sort revealed first in 2006 and then again this week with those terms. 

Moreover, we daily (hourly? by the minute?) convey our information to third parties -- Google, our cell-service provider, Facebook. For most people in America today, eschewing disclosures of this kind would leave them unable to go about their daily business. Can it really be that participating in life, the economy, and society require a forking over of one's claim to a "reasonable" expectation of privacy? 

Well, maybe. As much as one might be personally appalled by the notion of the NSA collecting everybody's call records, disgust doesn't make something unconstitutional. Rather, the real scandal here is what's legal -- namely, how the surveillance powers enabled by modern technology have been embraced and expanded by Congress and a succession of presidents, and how the Court has failed to develop a robust system for applying the Fourth Amendment meaningfully to the questions of the 21st century.

This failure of the Court boils down to the difficulty of applying a "reasonable expectation" standard to fast-changing technology and the equally fast-changing (though slightly lagging) societal norms regarding that technology's use. Justice Scalia made this point beautifully earlier this week in his dissent in the DNA case, which found that swabbing an arrestee's cheek was akin to fingerprinting and photographing, and thus "a legitimate police booking procedure that is reasonable under the Fourth Amendment." Scalia wasn't too impressed with this line of reasoning (citations removed):

The Court asserts that the taking of fingerprints was "constitutional for generations prior to the introduction" of the FBI's rapid computer-matching system. This bold statement is bereft of citation to authority because there is none for it. The "great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence," and so we were never asked to decide the legitimacy of the practice. As fingerprint databases expanded from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver's license, Americans simply "became accustomed to having our fingerprints on file in some government database." But it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for "generations" before it was possible to use it effectively for identification.

In other words, expectations change, and we become inured to a degree of government invasion that was previously intolerable. I call this phenomenon security-state creep, and if the Court were to review and approve of the NSA's call-collection practices on account of the Smith v. Maryland decision, we'd be seeing it again. (It's important to note that the Court earlier this year dismissed Clapper v. Amnesty International, a case related to the sort of order that was revealed Wednesday night on the grounds that no one had standing, since no one -- then -- could be certain that he or she had actually been surveilled.)

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Rebecca J. Rosen is a senior editor at The Atlantic, where she oversees the Business Channel. She was previously an associate editor at The Wilson Quarterly.

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