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December 28, 2013

Talking NSA Phone Metadata Collection on Vigilant Liberty Radio at 10pm

FYI, I'll be discussing the NSA phone metadata cases tonight on Vigilant Liberty Radio's Cigar Lounge show at 10pm Eastern.

As Ace and Drew have discussed, the two district court decisions on the NSA's phone metadata collection came to opposite conclusions about the program's constitutionality. The first court to rule on it (PDF) straight-up admitted that it was discarding the Supreme Court precedent known as the third party doctrine, saying the precedent should not apply in the context of phones anymore because their use is so ubiquitous. The second court to rule (PDF) stuck with precedent and held that the ACLU did not have a constitutionally protected privacy right to business records created and maintained by a third party, i.e., the phone company.

You can probably tell where I come down on it. Not only do I think the program is constitutional under current precedent, I think it should be constitutional.

Here's the key holding of the second decision:

And here the judge lists analogous situations:

The first district court repeatedly mischaracterized the metadata records as belonging to the customers and not the phone company, dismissed relevant precedent, responded sarcastically to the government's arguments (it's been a while since I've seen a court decision with that many exclamation marks), and dismissed out of hand part of the government's explanation for the program. For all those reasons, I expect the first decision to be overturned on appeal and the second to be upheld.

Whether the Supreme Court ultimately overturns its own precedent with respect to the third party doctrine in the context of this case, I don't want to guess. The high court's Fourth Amendment jurisprudence is a mess. Last year they held that the Fourth Amendment forbids police from putting a GPS tracker on a car for a month without a warrant, but allows police to take DNA swabs from every person arrested on suspicion of a felony. Predicting how they'd come out on this one is probably a fool's errand. And, of course, Congress may moot the question by altering FISA or the NSA next year.

Anyway, it should be a lively discussion tonight. Jason Pye from United Liberty will be on arguing for the other side. Tune in at 10pm.

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posted by Gabriel Malor at 06:03 PM

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