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.
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2 Responses to “Orin Kerr and Jennifer Granick Debate: Metadata and the Fourth Amendment”

  1. […] Cybercrime professor and former cybercrime prosecutor Orin Kerr and Director of Civil Liberties at the Stanford Center for Internet and Society Jennifer Granick debate whether the Fourth Amendment protects metadata. The debate is comprised of a series of posts: Granick leads off, Kerr replies, Granick responds, and Kerr wraps up. [H/T Syracuse University's Crossroads] […]

  2. […] metadata by the NSA truly the same as searching a closet in one’s home, as Fein argues?  Or, as Professor Orin Kerr recently argued, is telephony metadata simply the telephone company’s “record of what it did” and […]

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Tara J. PistoreseTara J. Pistorese

is completing her Juris Doctor and Masters of Public Administration degrees at the Maxwell School of Citizenship and Public Affairs and the College of Law of Syracuse University. She has served as a law clerk in the United States Attorney's Office for the Western District of New York and the Public Defender Service for the District of Columbia and as an extern in the United States District Court for the Western District of Washington. Full biography

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

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