Judge Rules the NSA Can’t Collect Your Phone Metadata

If you own a cellphone, then you freely allow telephone companies to access the metadata on your phone. If you live in the United States, then the National Security Agency (NSA) has complete access to that same metadata.

This reality first became known when Edward Snowden leaked information concerning the NSA’s mass surveillance programs. To justify its collections of cellphone metadata, the government claims that cellphone users don’t have an expectation of privacy over their metadata since they freely give it to third-part phone companies. A recent decision by US District Court Judge Richard Leon begs to differ.

On December 16, 2013, Judge Leon granted a preliminary injunction against the government. Since the government will likely appeal, enforcement of the judgment will be delayed.

Judge Leon ruled that the privacy interests of US citizens outweigh the government’s interest in massively collecting “metadata” from phone calls. Specifically, the government has been unable to show the court that metadata collection assists in stopping terrorist attacks. Meanwhile, the government’s intrusion, at face value, does seem to violate our protection against unreasonable searches and seizure under the 4^th Amendment. In fact, Judge Leon calls the government’s metadata seizures “almost Orwellian.”

NSA Data Collection May Violate Your Expectation of Privacy

The scope of the Fourth Amendment’s protection against unreasonable searches and seizure’s is determined by our “reasonable expectation of privacy.” For example, people do not have a reasonable expectation of privacy in garbage they put outside in garbage bins. When a “search and seizure” goes beyond the scope of a reasonable expectation of privacy, it will be declared an invasion of the 4^th Amendment’s protection of unreasonable searches and seizures and barred from use in trial.

This closely-watched case will determine the future standard by which the government can gather and use information in criminal cases. The current standard for phone line  privacy concerns was established by the Supreme Court in Smith v Maryland.  In Smith, the Supreme Court held that the installation and use of the “Pen Register” was not a “search” under the 4^th Amendment, so a search warrant was not necessary. The Court in Smith determined there is no legitimate expectation of privacy where the numbers are given voluntarily in addition to being available and recorded by the phone company anyway.

Judge Leon’s determination was that the collection and use of phone metadata violates the public’s expectation of privacy–particularly where there is no suspicion of criminal activity. When the government appeals Judge Leon’s decision, we will likely see a clarification of the standard of privacy expectations from Smith v. Maryland.