Compared to Judge Leon's opinion, Judge Pauley's decision is conventional and relatively straightforward. Under current law, any information that is knowingly shared with a third party is no longer privileged under the Fourth Amendment. If it chooses, that third party is free to share that information with the government -- this is the "Third Party Doctrine." Telephone companies are of course aware of the phone numbers we dial and the time we call. This is the "metadata" that the NSA collects for every single telephone call in the United States.
In light of the voluminous amounts of information that may now be found in the "business records" of banks, internet service providers, telephone companies and other enterprises, Judge Leon predicted that the Supreme Court was ready to overrule the Third Party Doctrine in order to protect the privacy of individuals. He proposed a novel theory -- that in devising these information-gathering programs the telephone companies were in fact acting in concert with the government. That these programs are not the accumulation of business records by private entities but rather a cooperative enterprise, thus making the entire program "state action" that is subject to the Fourth Amendment.
Judge Pauley introduces his opinion by explaining the stark choices that this country faces. To combat terrorism and the threat of another attack such as that on 9/11, the NSA began gathering bulk telephony data from the telephone companies, indicating each number called and how long the call lasted. Judge Pauley notes if we wish to discover the identity of terrorists whom we are not yet aware of, this type of surveillance is necessarily comprehensive:
This blunt tool works only if it collects everything.On the other hand, Judge Pauley frankly acknowledged the threat that this type of information poses to Americans' freedom:
If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people's associations with one another.The fulcrum of the opinion lay in the ownership of the information. Judge Pauley wrote:
The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata. ... the business records created by Verizon are not "Plaintiffs' call records." Those records are created an maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information.Judge Pauley resisted the temptation to make new law, saying that it is for the Supreme Court to decide whether to overrule established precedent. He stated:
But the Supreme Court did not overrule Smith [the case applying the Third Party Doctrine to the records of the telephone company]. And the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases. Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties. Inferior courts are bound by that precedent.Judge Pauley also rejected the First Amendment arguments of the ACLU.
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