More of the Same Can Be a Whole New Thing

That is Koan #5 of Blown to Bits, and it is the thing that Justice Leon seems to get in his opinion that the NSA "metadata" collection program is unconstitutional, and the thing that Justice Pauley seems not to get in his contrary opinion. On the basic question of whether the collection of all the telephone numbers called from all the telephones in the US, Justice Pauley goes straight to the Supreme Court's 1979 decision in the case of Smith v. Maryland in which the Court ruled that telephone users had no expectation of privacy in such telephone numbers, since they were disclosing them to the telephone company, which needed to retain them in order to complete the call and carry out its billing operations. In Pauley's words,

The collection of amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search. … The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation o f privacy in telephony metadata.

 Justice Leon sees things exactly the opposite way.

… the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones. … I find that plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA's Bulk Telephony Metadata Program significantly intrudes on that expectation.

It seems to me (IANAL of course) that we are at a hinge moment and only the Supreme Court can reconcile the tension between the public's privacy and security interests. It is as though we are reliving the progression from Olmstead to Katz in the world of wiretapping. In Olmstead, Chief Justice Taft wrote in 1928,

By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched. … The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment. 

Though Justice Brandeis wrote a memorable contrary opinion in that case, he lost the argument, and it was not until 1967 that the Court found that wiretapping required a warrant. Evincing an interpretation of the Constitution which the 1928 court would have found curious, that "the Fourth Amendment protects people, rather than places," Justice Stewart wrote,

We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. 

The issue today is not about the changed status of wires but the changed status of bits. How many bits have to be aggregated before the picture they create become so sharp that having the government see it becomes, as Justice Leon wrote, "almost Orwellian"? It will be fascinating to watch this conservative court come to grips with what exactly it will want to conserve.