According to The Guardian, German Chancellor Angela Merkel compared the NSA’s snooping practices “with those of the Stasi, the ubiquitous and all-powerful secret police of the communist dictatorship in East Germany, where she grew up.” She is said to have done this during “an angry exchange with Barack Obama” on the phone in October. Edward Snowden had apparently revealed that the NSA was listening in on Merkel’s private cell phone conversations. She also is reported to have said that the NSA cannot be trusted with private information, as evidenced by the fact that Snowden was able to escape with so much of it.
My question for Merkel is: what if Snowden hadn’t been able to escape with that data? Would she say that ignorance is bliss? Even if Merkel is a little confused about whether to cheer the Snowden leaks, I am glad to be able to live vicariously through her having “an angry exchange” with our president.
Those who, like me, disapprove of the NSA’s spying activities will be dismayed to learn that a recent White House-sponsored review of the NSA’s activities has resulted in a recommendation that the NSA continue its programs essentially unchanged. For example, the report is said to recommend continuing the bulk data collection of Americans’ telephone metadata, without probable cause or particularized suspicion, with the only changes being (1) the level of suspicion required to conduct a search on the ginormous database, and (2) the nominal collector and storer of the data would be the telephone companies. I agree with Jim Harper of Cato that requiring the phone companies collect and store the data makes no substantial difference and, in fact, may be worse than the existing program. “Is secretly violating Americans’ communications privacy really rewarded by a policy requiring the violation of Americans’ communications privacy?” he asked.
Harper and other privacy advocates were heartened this week by a federal district judge who ruled that the NSA spying programs were likely unconstitutional. The Guardian provides access to the full text of the ruling, which is long and addresses issues of jurisdiction and standing, but I focused on the part that most interested me: the section pertaining to the third-party doctrine. The judge was conservative, as is appropriate for a district court ruling. He did not say we should get rid of the third-party doctrine, much less the “reasonable expectation of privacy” test, as I do in my recent PJ Media piece and forthcoming law review article. But he did say that he doubted whether the 1978 Supreme Court decision, Smith v. Maryland, a staple of third-party doctrine jurisprudence, could sanction the legality of the NSA’s bulk collection of telephone metadata. Cell phone use today isn’t comparable to the use of the telephone in the 1970s, and so the fact that one might not have had a “reasonable expectation of privacy” in phone metadata in the 1970s doesn’t say anything about whether one has such an expectation today.
While I wish the judge had gone further, it’s a great start and it invites judges on appeal to take a closer look at the third-party doctrine.