Earlier this week, a real estate attorney from Coeur d'Alene stood up in front of a three-judge panel in Seattle's Ninth Circuit courthouse to argue Smith vs. Obama—a case challenging NSA surveillance that began back in Idaho, and could be the one that ends up before the US Supreme Court.
It was the first time the attorney, Peter Smith, had appeared before the Ninth Circuit—as another lawyer once said to me, "the Ninth Circuit ain't beanbag"—or done anything like it. Smith later said in a phone interview that he and his wife Anna were troubled by the 2013 Guardian stories about Edward Snowden and the NSA and had "an interesting discussion about what that means... Anna didn't feel right." So Smith did some research about the legality of the NSA's bulk-collection programs and decided he had grounds to challenge them. Depending on how the Ninth Circuit rules, Mr. Smith could eventually go to Washington.
"Anna is my wife," Smith started his statement to the judges. (You can watch the arguments by Smith and counter-argument from Department of Justice lawyer H. Thomas Byron III in the video above.) "She is also a neonatal intensive care nurse. She's a mother. And ten years ago, Anna's government began a dragnet collection of her call records. Those call records reveal detailed information about Anna when analyzed in the aggregate—"
"How do we know those records were a), number one, ever seized, and b) actually searched?" interrupted Judge Richard Tallman.
And the oral arguments for Smith vs. Obama had begun.
Smith vs. Obama is one of three cases working their way through the courts that, at the moment, have moved furthest up the legal ladder towards the Supreme Court. (The others are ACLU vs. Clapper and Klayman vs. Obama. Two additional cases, spearheaded by the Electronic Frontier Foundation—First Unitarian Church of Los Angeles vs. NSA and Jewel vs. NSA—are still at the district court level, but may move up the chain as well. The ACLU and EFF have also provided significant assistance in the Smith case.) If one of them makes it to the Supreme Court, it will give the judicial system its first public opportunity to definitively debate whether the NSA's bulk metadata collection programs violate the Constitution, specifically Fourth Amendment protections against unreasonable search and seizure and First Amendment protections of free speech.
I say "first public opportunity" because there is another court—the secret Foreign Intelligence Surveillance Court (FISC)—where the government asks for the NSA's electronic surveillance warrants. But, Smith said in the interview, the FISC only hears arguments from government lawyers who want the warrants. "FISC gets what the government tells them and does the best they can," Smith explained, "but there are reports of the government not being truthful with the court."
Notably for this case, in January Judge Tallman was appointed to serve as one of three justices on an arm of the FISC—the FISCR, its court of review, which looks over surveillance warrants that have been denied by the FISC. Perhaps it's no coincidence that of the three judges Smith appeared before on Monday, Judge Tallman was his toughest customer.
Smith answered Judge Tallman's question about whether he could prove Anna's phone records had been "seized" by reiterating what he'd already stated in his brief: a) the identities of cell-phone carriers cooperating with the NSA are classified, but b) Verizon (Anna's carrier) has the biggest cell network in the United States, and c) the government's own briefs emphasize that its data collection must be broad in order to be effective. "The program is broad in scope and involves the collection and aggregation of a large volume of data from multiple telecommunications service providers," NSA Signal Intelligence Director Teresa Shea stated in one of the government's declarations.
Or, as NSA Deputy Director John Inglis said earlier this year: "If you're looking for a needle in the haystack, you need the haystack... you wouldn't want to check a database that only has one third of the data."
Given those facts and assertions, Smith said to the judges, it's reasonable to assume that Verizon is part of that haystack.
"So, that's speculation number one," Judge Tallman said.
"They identify no service providers," Smith said. "She makes calls to a number of different providers and at some point, one of those providers is very likely part of the program—or the government doesn't have an effective program like they say they do."
The case hinges on three points: whether Anna's phone records were collected by the NSA, whether that constitutes a search, and whether that search could be considered "reasonable" under the Fourth Amendment.
Point one is hard to prove, since the identities of the phone companies involved are classified—but it seems reasonable to assume that the nation's largest telecommunications provider is part of the NSA's "haystack." For the other two points, DOJ attorney H. Thomas Byron III relied heavily on the 1979 case Smith vs. Maryland and its use of the third party doctrine, which holds that information shared with their parties loses its privacy privileges.*
In Smith vs. Maryland, for example, police asked a phone company to monitor a robbery suspect named Michael Lee Smith for three days to see who he called. The police didn't get a warrant. That made its way to the Supreme Court, which decided that because Smith was sharing the numbers he dialed with a third party—the phone company—he had "no reasonable expectation of privacy" about those numbers.
The NSA collecting millions of Americans' phone records every day and keeping them for years, Byron argued, is no different. Or, as ACLU attorney Patrick Toomey summarized the argument: "When you have zero privacy interest in the number you dial for one phone call, you have no interest when the government collects a million phone calls. Zero times zero is also zero."
Smith vs. Obama challenges that reasoning head on, saying that scope and duration of mass surveillance—and the information that the government itself says it can glean from analyzing the data in bulk—is Constitutionally different from cops monitoring a robbery suspect's phone for three days in 1979.
In one brief, Smith quotes a recent Supreme Court decision about phone surveillance in the Riley vs. California case—about a suspected gang member arrested for having concealed and loaded weapons—in which government attorneys argued that "a search of all data stored on a cell phone is 'materially indistinguishable' from searches of [analogous] physical items" like wallets and purses.
"That," Chief Justice John Roberts wrote in his opinion, "is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together."
Government attorneys' recent arguments about phone surveillance seem to rest on the assumptions that, legally speaking, millions of Americans have the same standing as an individual criminal suspect and that phone technology hasn't changed since 1980—but it also keeps arguing that its exploitation of new technology is vital for national security.
"They talk out of both sides of their mouth," Smith said after the Ninth Circuit proceedings. "On one hand they say 'we don't learn anything, don't worry about it.' Then they say 'look how valuable this is, we need it.' Americans need to understand that that is not just phone numbers... When you aggregate the data—a phone number is unique, more unique than a name—you can see political affiliations, health issues, the rise and fall of relationships, social status. The duration of time you speak with someone tells you about that relationship."
Then he quoted Justice Louis D. Brandeis from his opinion in the 1928 Supreme Court case Olmstead v. United States: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
At the end of Smith's oral arguments, Judge Michael Hawkins smiled and said, "you can go home and tell Anna—"
"She's here today, your honor," Smith said.
"Oh, she is?" Judge Hawkins asked, peering into the faces at the back of the courtroom. "Your guy did a nice job!"
In all likelihood, Smith won't hear from the Ninth Circuit Court of Appeals for many months, but hopes that the Supreme Court will pick up one of these NSA cases and give it—and the Fourth Amendment—a long look. Technology has moved much more quickly than the law and cases from the 70s are no longer sufficient to govern surveillance. "The government says that if you turn things over to a third party, you have no expectation of privacy under the Fourth Amendment," Smith said. "In this day and age with cloud computing—if the government were correct in their theory of the case—they could collect everything without a warrant. The government is careful to stay away from suggesting that's where they want to go, but that is the result."
Smith added that this is all new territory for him. "I'm a real estate and commercial lawyer," he said. "I've never taken on a Fourth Amendment case like this or an NSA issue like this. I'm not the most experienced person to do it—but somebody's got to stand up."
* If you see Citizenfour—which you should—Byron makes an appearance during some previous Ninth Circuit arguments about the NSA. He's the guy in the bow tie. During this week's arguments, one of the judges mentioned they'd seen him in the movie. "I haven't seen the movie, your honor," Byron responded, "but I understand that you and Judge [Margaret] McKeown were there as well." "We had no idea that one of these court hearings would be in a movie," Judge McKeown said. "We had no reasonable expectation of privacy!" Judge Hawkins joked. Everybody laughed.
This post has been updated.