This week, in Klayman v. Obama, Judge Leon opined that the NSA’s bulk collection of telephone call record data probably violates the Fourth Amendment. Several commentators have criticized the opinion for insufficient fidelity to Supreme Court precedent. According to the Wall Street Journal’s editors, for example: “The largest flaw is that the Supreme Court already considered the constitutional claims at stake here, and Judge Leon simply waves off the relevant precedent of Smith v. Maryland.” Contrary to such critics, I believe that Judge Leon has his finger squarely on the pulse of the Supreme Court in reading Smith narrowly and stepping away from an absolutist understanding of the so-called “third party doctrine.”
Smith, a 1979 opinion, upheld the warrantless use of a “pen register” to intercept dialed numbers on the grounds that the caller had no Fourth Amendment “legitimate expectation of privacy” because he had “assumed the risk that the company would reveal to policy the numbers he dialed.” Smith is part of a line of Fourth Amendment precedent that uses “assumption of risk” to evaluate reasonable expectations of privacy. For example, a citizen “assumes the risk” that friends in whom she confides might decide voluntarily to report those confidences to the government and the Fourth Amendment does not protect her if they do. In Smith the phone company installed the pen register voluntarily at the request of the police. The Court held that “petitioner can claim no legitimate expectation of privacy here,” because he “assumed the risk that the company would reveal to police the numbers he dialed.” Far from controlling the case, Smith is entirely distinguishable from the NSA’s programs at issue in Klayman. The service providers did not voluntarily turn the telephony data over to the NSA, but were ordered to do so.
The argument that the Fourth Amendment does not apply to the NSA’s program relies on a much more aggressive version of the so-called third party doctrine, under which sharing information with anyone purportedly deprives citizens of all expectations of privacy in that information leaving it entirely without Fourth Amendment protection. As I argued in a 2011 Maryland Law Review article, the foundations for such a doctrine in Supreme Court precedent are extremely shaky. Smith and United States v. Miller are the purported pillars of the doctrine. Smith, as explained above, stands for nothing more than standard assumption of risk analysis in a case where a third party voluntarily reveals shared information to the government. Read More