U.S. Supreme Court nominee Appeals Judge Sonia Sotomayor (L) looks up at U.S. President Barack Obama (R) after he introduced her to fill the seat being vacated by Justice David Souter, at the White House in Washington D.C., May 26, 2009.
The best hope for combatting the NSA's bulk collection of phone records may lie in Supreme Court Justice Sonia Sotomayor's concurring opinion in a huge 2012 privacy case.
In United States v. Jones, the nation's highest court heard how police installed a GPS tracking device on drug suspect Antoine Jones’ Jeep without a valid warrant and then monitored him for four weeks.
The high court ruled unanimously that the GPS tracking violated Jones' Constitutional guarantee against unreasonable searches — but only because police had to invade his physical property to attach the device.
In a concurring opinion, Sotomayor went out of her way to point out that the government doesn't have to physically intrude on somebody's property in order to violate Fourth Amendment rights.
She then argues that a ll the information people voluntarily disclose to some member of the public for a limited purpose — such as a business transaction for phone or Internet — is not automatically disentitled to Fourth Amendment protection.
The metadata precedent
The NSA's collection of metadata — telephone numbers dialed and other information* — was first allowed by the 1979 Supreme Court ruling Smith v. Maryland. In that case, the court said it was legal for telephone companies to record numbers dialed from a telephone line — and give those numbers to the cops.
The Supreme Court ruled customers shouldn't expect that information to be private since they've already disclosed it to a third party — the phone company.
From Smith v. Maryland:
When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police.
The Obama administration's Justice Department has used this argument to justify warrantless GPS tracking, arguing in January 2012 that customers can't expect cellphone location records to be private since they technically already "gave" that information to their wireless providers.
( That argument was first shot down in August 2005 when a federal judge denied a Justice Department request to constantly track a cellphone user's location without a warrant under the Patriot Act. )
After Edward Snowden leaked a court order compelling Verizon to hand over data on all calls in its system , the U.S. government acknowledged that it relies on the " business records clause " of the Patriot Act (i.e. Section 215) to collect metadata about every phone call made or received by residents of the United States.
*Editor's note: Metadata include telephone numbers dialed, telephone numbers of incoming calls, the duration of calls, and (potentially) location. Despite the administration's position, the NSA contends that the spy agency collects U.S. metadata but chooses not to collect location data.
Sotomayor treats Smith v. Maryland and warrantless GPS tracking very differently from the Obama administration that appointed her.
It's high time for the Supreme Court to reconsider the notion that people have no reasonable expectation of privacy in information they voluntarily gave up to third parties, Sotomayor said in her concurring opinion.
"This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Sotomayor wrote.
"This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," she wrote.
Sotomayor recognizes that location tracking generates a precise record of a person’s public movements and reveals details about familial, political, professional, religious, and sexual associations. She notes that the government " can store such records and efficiently mine them for information years into the future."
People may be afraid to exercise the rights of free speech and free associations guaranteed by the First Amendment since they know the government can freely collect personal information, she writes.
The ACLU's big privacy case
The American Civil Liberties Union is currently suing the government over its dragnet acquisition of phone records under The Patriot Act. The ACLU, like Sotomayor, argues, that metadata surveillance (even without GPS tracking) provides " a comprehensive record of our associations and public movements " and " is likely to have a chilling effect on people who would otherwise contact Plaintiffs."
“The crucial constitutional moment, for Fourth Amendment purposes, is the moment the government seizes our information — not what it does with it afterwards," Patrick C. Toomey of the ACLU told Business Insider. "That’s the case because putting a complete log of our communications in the government’s hands invites grave abuse and exposes us to invasions of privacy that cannot be justified, even retroactively."
Similar lawsuits have been dismissed because plaintiffs didn't have "standing" to sue , meaning they couldn't show they were targets of government surveillance. But the ACLU is a customer of Verizon, so the Verizon documents provided by Snowden gives the organization the closest thing to a smoking gun they would need to bring a case.
The modern-day Fourth Amendment
In Katz v. the United States (1967), the Supreme Court extended Fourth Amendment protection to all areas where a person has a "reasonable expectation of privacy," and counted electronic intrusion into a place that is reasonably considered private as a violation.
Given the Katz reasonable-expectation-of-privacy test, Sotomayor's most important comments may be in regards to what this means in the digital age.
"I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year," Sotomayor wrote.
All the information people voluntarily disclose to some member of the public for a limited purpose — such as a business transaction for phone or Internet — is not automatically disentitled to Fourth Amendment protection, Sotomayor argues.
She cited Thurgood Marshall's dissenting opinion in Smith v. Maryland:
“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.”
Hope for American privacy
Taking into account Katz's reasonable-expectation-of-privacy test and Sotomayor's comments on this notion, that collection appears to violate the Fourth Amendment rights of American citizens. And it's possible the government's broad surveillance could come before the Supreme Court soon.
Just this week, a lawyer for a 19-year-old terrorism defendant told the Associated Press that he believes prosecutors fear they may have to defend their surveillance in the nation's highest court.
That lawyer, Thomas Durkin, told the AP that he believes the government used expanded surveillance to gather information on his client. He's seeking more information about it to challenge its constitutionality, but the government denies it even used expanded surveillance in this case.
"It is perfectly clear to me that the NSA is giving the Justice Department and the U.S. attorney's office marching orders to avoid a constitutional challenge at all cost," Durkin said.
If a constitutional challenge to NSA domestic spying ends up reaching America's highest court, Sotomayor's argument for the Fourth Amendment in the digital age is America's best hope to reclaim America's right to privacy.
More From Business Insider