Orin Kerr and Jennifer Granick Debate: Metadata and the Fourth Amendment
In keeping with the Fourth Amendment theme this week, I thought it would be timely to take a look at this interesting exchange.
Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, and Professor Orin Kerr of George Washington University Law School have begun a lively debate on the constitutionality of metadata collection. Here’s a link to the full debate (as it is released) by Just Security. I provide only a brief synopsis of some of the points raised in round one that I found particularly interesting.
Granick’s points (arguing that the Fourth Amendment protects Americans from government collection of metadata):
- Smith v. Maryland, which held there is no constitutionally protected reasonable expectation of privacy with regard to dialed numbers, is distinguishable “as qualitatively and quantitatively different from the collection of sensitive information” by the NSA.
- Smith involved a single individual. Here, Granick argues, the sheer volume of records being collected makes the NSA metadata collection programs distinguishable.
- Granick emphasizes the novelty of these issues of surveillance stating that these “matters were not decided way back in 1979 in Smith v. Maryland.”
- Unlike Smith, where only the numbers dialed were recorded, the surveillance programs upheld by the FISC permitted the government to collect records including the time and duration of a call, unique identifying numbers, and the “‘trunk identifier,’ which reveals where the call entered the telecommunications system, and thus the caller’s location.”
- Granick also makes an interesting point about content. While metadata does not explicitly provide the content of a conversation, if an individual calls a rape crisis line, an addiction helpline, or a suicide hotline (as three examples she offers), and speaks with another individual for thirty minutes, essentially anyone monitoring the call would know the content of the conversation.
- Granick also believes the NSA surveillance program is more invasive than contemplated in U.S. v. Jones. There “the majority held that attaching a GPS-tracking device to a vehicle and using the device to monitor the car’s movements [for] twenty-eight days was a Fourth Amendment ‘search’ because it interfered with the defendant’s property interest in the car.” Granick goes on to explain that the concurring opinions in Jones “concluded that the surveillance ‘impinge[d] on expectations of privacy.”
Kerr’s arguments (in support of the contention that “existing Fourth Amendment precedents support the conclusion that the telephony metadata program does not violate the rights of telephone users”):
- Kerr explains that the information collected by the telephony metadata program is the telephone company’s “record of what it did” and not the user’s property. Under this reasoning, “metadata that is account information about how an account was used—but not call contents—is not protected under the Fourth Amendment.” Therefore, the telephony metadata program is not a “search” and does not fall within the purview of the Fourth Amendment.
- In response to Granick’s argument about the volume of records collected, Kerr argues that the Fourth Amendment protects individual rights. Therefore, if the data collection program is not a “search” when applied to an individual, it cannot be a “search” when applied to many.
- One last point I’ll address deals with Jones. Kerr dismisses Granick’s arguments with respect to Jones by stating she is overly attentive to the concurring opinions. Because there was a clear majority in that case expressly declining the concurring “mosaic theories,” we need not venture into that portion of the opinion at this point in the discussion.