SCOTUS cellphone ruling resonates in NSA fight

The NSA’s metadata program sweeps up call details for possible links to terrorist plots.

The Supreme Court’s blunt and unequivocal decision Wednesday giving Americans strong protection against arrest-related searches of their cell phones could also give a boost to lawsuits challenging the National Security Agency’s vast collection of phone call data.
Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.

“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”

Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.
“Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the chief justice wrote in an opinion that concluded police nearly always need a warrant to look through a phone or similar device. “An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns — perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.”
For the NSA debate, the most significant idea in the court’s Wednesday opinion may be the notion that scale matters. Roberts and his colleagues soundly rejected arguments from the Obama administration that because police can search a few printed photographs found in someone’s wallet, officers were free to search thousands of images and the troves of other personal data contained on a typical smartphone.
Government lawyers engaged in the NSA fight have pointed to a 1979 Supreme Court ruling that approved the use of a trap-and-trace device put on a single phone line to investigate harassing phone calls. That decision, those attorneys say, means there is no constitutional problem with authorities assembling data on many — or even all — calls made in the United States.
Critics have said the two situations bear little resemblance to one another, in part because of the huge difference in scale.
“It’s very important that the court is recognizing that quantity matters,” said Georgia Tech professor Peter Swire, a privacy expert and member of a panel President Barack Obama set up to review the NSA’s call metadata program. “The court has said that quantity matters when it comes to the content of cell phones. And I believe the court will feel the same way when it comes to massive databases of telephone calls or computer communications.”
A former cybercrime prosecutor said the justices also seemed to recognize that scale of the collection not only gives the government more data, but also the ability to be much more intrusive than in earlier eras.
“The distinction here is more than just the capacity of the device to hold pictures,” said Alex Southwell, now with law firm Gibson, Dunn & Crutcher. “A cell phone is orders of magnitude different, not just in terms of numbers of items held but also in terms of the intrusiveness if searched. The mosaic of information available from seeing the whole of the data is transformative, just like the call records at issue in the NSA program.”
The Supreme Court’s ruling Wednesday in Riley v. California doesn’t say anything explicitly about the NSA’s metadata, nor did the justices mention national security concerns or intelligence gathering.
However, in one somewhat opaque footnote to Roberts’s majority opinion, the justices seem to be saying they are leaving the issue of bulk collection of data for another day. “These cases do not implicate the question whether [sic] the collection or inspection of aggregated digital information amounts to a search under other circumstances,” Roberts wrote.
Even if the justices were to deem the NSA program a warrantless search that goes well beyond tracing calls made on a specific phone line, that wouldn’t mean the terrorism-focused effort is unconstitutional. Instead, the court would have to consider whether the search is reasonable in light of the national security and public safety concerns involved — and justices are often extraordinary deferential to such arguments.