The Troubling Arguments from the Govt in Smith v. Obama NSA Spying CaseNadia Kayyali Another case challenging the telephone records program, Klayman v. Obama, will be argued on November 4 in Washington DC before the DC Circuit and EFF will be participating as an amicus. The Smith v. Obama case records are all here: but we thought wed highlight three of the more outrageous arguments the government made, and our responses debunking them. The Cases Mrs. Smith doesnt think her phone records are any of the governments business. Thats why, only a few days after the Guardian published a secret order from the Foreign Intelligence Surveillance Court revealing the governments bulk collection of the telephone records of millions of innocent Americans, she sued. Smith v. Obama challenges the governments collection of call detail records under Section 215 of the PATRIOT Act. Mrs. Smith is represented by her husband, attorney Peter Smith, along with the ACLU, EFF, and Idaho State Rep. Luke Malek. The district court said it felt bound to dismiss her claims because of a 1979 Supreme Court case, Smith v. Maryland. That case involved the collection of the phone numbers dialed by a criminal suspect over the course of three days. Its one of the cornerstones of the so-called third party doctrine, the idea that people have no expectation of privacy in information they entrust to othersand its outdated to say the least. The centerpiece of Mrs. Smiths case is the issue of whether the governments collection of our telephone records in bulk, and retention of those records for five years, triggers the Fourth Amendments warrant requirement. The warrant requirement applies if there is a legitimate and reasonable expectation of privacy in those records. And if the warrant requirement applies, the collection is unconstitutional, since there is no warrant (everyone agrees that the secret FISA Court rulings allowing the bulk collection under Section 215 of the Patriot Act are NOT warrants). We argue that there is a legitimate and reasonable expectation of privacy violated by the bulk collection of telephone records, because unlike the narrow situation the Supreme Court considered in 1979, they can reveal an incredible amount of sensitive information. For example, in one short-term study of only a few months of telephony metadata from 546 people, researchers at Stanford were able to identify one plausible inference of a subject obtaining an abortion; one subject with a heart condition; one with multiple sclerosis; and the owner of a specific brand of firearm.The government wants the court to simply ignore these differences. Alternately, the government argues that even if there is an expectation of privacy, it is so small compared to the governments interest that the warrant requirement can be ignored, under something called the special needs test (more on that below). But, as we emphasize our reply brief, this is wrong, in part because we are living in what member of the Presidents Review Group Professor Peter Swire calls the Golden Age of Surveillance. As we argue: technological advances have vastly augmented the governments surveillance power and exposed much more personal information to government inspection and intrusive analysis. If courts ignored this reality, the essential privacy long preserved by the FourthAmendment would be eliminated. The Governments Arguments So with that background, lets look at three of the most troubling claims the government makes. Call Detail Records Dont Actually Identify People The government still claims with a straight face that call detail records dont reveal private information, because they do not include information about the identities of individuals, including the name, address, [or] financial information of any telephone subscribers. Thats technically true, of course, but who cares? Its not like this prevents the government from identifying you in less than a millisecond after it gets your telephone number. Last time we checked, the government did have access to, say, telephone books and the many public online services that can do reverse number lookup. Thats why we point out that: phone numbers are every bit as identifying as names. Indeed, they are more so: while many people in the country may share the same name, no two phone subscribers share the same number. Its pretty ridiculous for the government to continue to try to convince the court that the absence of the names in calling records represents any real privacy protection for the millions of Americans whose records are collected. It plainly does not. We Have to Collect Everything for the Program to Work. But Were Not Collecting Everything. The government tries to challenge Mrs. Smiths standing to sue by repeatedly alleging that the call detail records program has never encompassed all, or even virtually all, call records and does not do so today. It claims that the case should be dismissed because Mrs. Smith cannot immediately prove that her records were included. Of course, thats not how litigation works. Mrs. Smith has good reason to believe that her records have been includedthe governments own public statements give her good reason. The district court properly rejected this argument, but the government continues to press it on appeal. The government also seems to be talking out of both sides of its mouth here, since, as we note in our brief:In explaining the program to Congress and the publicthe government has emphasized not only that the program is comprehensive, but that this comprehensiveness is the key to its utility. In fact, Robert Litt, General Counsel of the Office of the Director of National Intelligence told Congress: In order to find the needle that matched up against that number, we needed the haystack, right. Thats what the premise is in this case. And NSA Deputy Director John Inglis defended the program by saying: If youre looking for a needle in the haystack you need the haystack. So you wouldnt want to check a database that only has one third of the data, and say theres a one third chance that I know about a terrorist plot, theres a two thirds chance I missed it because I dont have that data. So to get the case dismissed they want to convince the court that they arent really collecting virtually all of the telephone records, but their public justifications rely on the fact that they are. So either they are collecting Mrs. Smiths records, along with every other Verizon Wireless customerVerizon is the second largest wireless service in the U.S. after allor they are not very good at meeting their own stated goals. Which is it, government? And that goes right to the heart of the governments next argument: Bulk Telephone Records Collection Isnt Necessary to Protect UsBut Is Still Allowed Under the Special-Needs Doctrine The governments fallback argument is that even if the call detail records triggered the Fourth Amendment, a warrant is still not required under a narrow legal precedent called the special-needs doctrine. It allows warrantless searches of a few small categories of people who have a reduced privacy expectation, like students in schools or employees who handle dangerous equipment. It also only applies when compliance with probable-cause and warrant requirements would be impracticable and the governments primary goals are not law enforcement. The first problem here is that the millions of ordinary Americans affected by the governments bulk collection do not have a reduced expectation of privacy in the records of their telephone calls. The privacy interests here are great, since with a trail of telephone records, the government can learn extremely sensitive information. The second problem is that no less than the White House itself has said that the government can accomplish its goals without bulk telephone records collection. This has been confirmed by the Presidents two hand-picked panels as well as several Congressmembers who have seen the intelligence information. As we point out in our reply brief, the best the government can say about the program is that it enhances and expedites certain techniques it uses in its investigations. So getting a warrant isnt impracticable, its just, at most, inconvenient. But as we point out: If efficiency alone were determinative, the FourthAmendments warrant requirement would have no force at all. The special-needs argument is especially concerning because if the courts were to accept it, the special-needs doctrine could become an exception that swallows the Fourth Amendments rule against general searches. It could, de facto, create a national security exception to the Constitutional rights enjoyed by ordinary, nonsuspect Americans, something the founders plainly did not do when they created this country in the midst of a national security crisis. We expect an interesting argument on December 8. Related Cases Please visit EFF for the latest in privacy news and activism. 