Eric Posner Argues NSA’s Metadata Program is Constitutional

The NSA’s Metadata Program Is Perfectly Constitutional
Eric Posner
December 30, 2013

This month two judges issued two different opinions about the NSA’s controversial bulk metadata collection program. Judge Richard Leon ruledin Washington, D.C., that the program likely violated the law. Judge William Pauley ruled in New York that the program did not violate the law. Judge Pauley’s opinion is both correct legally and more sensible than Judge Leon’s, but it’s not hard to imagine that even our conservative Supreme Court could go the other way.

Under the metadata program, the NSA vacuums up certain data associated with telephone calls—including the number called from, the number called to, and the time of the call—and stores them on its servers. Under the loose supervision of the secret Foreign Intelligence Surveillance Court, the NSA can search the data for evidence of terrorist connections. For example, if the NSA learns the cellphone number of a suspected terrorist, it can query the metadata for the phone numbers dialed on the terrorist’s phone, the phone numbers of the phones that called that phone, and other phone numbers associated with those phone numbers. The NSA turns over suspicious phone numbers to the FBI for further investigation.

Judge Pauley argued that under the Supreme Court case of Smith v. Maryland, which was decided in 1979, the metadata program does not violate the Fourth Amendment because the NSA collects the metadata from the telephone companies of the targets; the NSA does not monitor the phone itself. In Smith, the court held that the defendant did not have a “reasonable expectation of privacy” (the standard for a Fourth Amendment claim) in the phone numbers he had dialed, because by dialing them he communicated them to the phone company. So the police could install a device called a pen register at the telephone company’s premises to record those phone numbers.

Eric Posner