A secret opinion of the Foreign Intelligence Surveillance Court recently released to the public is a reminder that the NSA is still conducting mass surveillance on millions of Americans, even if that fact has faded from the headlines. This would seem to violate the Fourth Amendment if you read its plain text. So how is it that FISA-court judges keep signing off on these sweeping orders?
They base their rulings on Smith v. Maryland, a case the Supreme Court decided decades ago. Before we examine the glaring flaw in the jurisprudence of the FISA-court judges applying it to mass surveillance, here's a brief refresher on that case.
Smith began with a 1976 house robbery. After the break-in, the victim started getting obscene phone calls from a man identifying himself as the robber.
On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence.
The Supreme Court ruled that the defendant had no reasonable expectation of privacy for numbers dialed from his house because a third party, the telephone company, kept a record of all calls dialed, as is commonly understood by phone users. The NSA argues that, per this precedent, they can obtain the call records of every American, even if the vast majority of us are suspected of no wrongdoing.