In Klayman v. Obama, a federal trial judge in Washington, D.C., declared that the National Security Administration’s bulk collection of phone records violated the Fourth Amendment to the Constitution. The decision will not be easily criticized as the work of an ACLU sympathizer, as was the recent judicial effort to ban NYPD’s stop-and-frisk policy (which was correctly overruled on appeal). The judge here is Richard Leon, an appointee of George W. Bush who has been fairly tough on habeas corpus cases from Guantanamo Bay. I have known Judge Leon for many years, well before he joined the bench, and have long respected his skills as a trial lawyer and congressional investigator.


But I still think that Leon has erred. He is the only trial judge to rule so far against the NSA. His main problem is that there is a Supreme Court precedent on the point, Smith v. Maryland. In Smith, the Court held that the government did not need a warrant to use pen registers, which are used to record dialed phone numbers. Smith held that no search had occurred because there was no constitutional privacy right over phone numbers, because we all provide them to a third-party — the phone company. In general, when we reveal private information to a third party, we lose privacy rights over it.

Judge Leon cannot claim that the reasoning of Smith does not cover the telephone metadata at issue here, because the data collected are exactly the same as the kind held unprotected in Smith. Leon’s decision instead argues that technology has changed so much that Smith is no longer good law. But that is not Judge Leon’s decision to make; that is up to the Supreme Court. Judge Leon concludes that the ability to collect and analyze the data, and the extent of its collection, was unlike anything in existence at the time of Smith. Again, that was not for Judge Leon to decide, but for the Supreme Court.


In fact, I do not think that this is fundamentally the job of judges. It may be time to reconceive the rules of search and seizure in light of new Internet technologies — but that is the responsibility of our elected representatives. Only they can determine what society’s “reasonable expectation of privacy” is in Internet and telephone communications. Judges are the last people to fairly claim they have their fingers on the pulse of the American people. Only our elected representatives can properly balance existing privacy rights (if any), against the need for information to protect the nation from terrorist attack. Judges are far too insulated and lack the expertise to make effective judgments on national-security and foreign affairs. The president and Congress must take up their duty and work out the rules to govern surveillance to protect the nation’s security, and when they don’t, it is left up to the branch least capable of doing so, the judiciary.

Besides, if Judge Leon is right that an increase in the government’s ability to collect and analyze information should suddenly transform non-private data into constitutionally-protected “persons, houses, papers, and effects,” then why don’t the courts protect all kinds of other information? Under his logic, the Fourth Amendment should also protect all credit-card information, financial transactions, travel reservations, public Facebook and LinkedIn posts, and so on — information that we have always allowed law enforcement and national-security agencies to search because we have handed the information over to private third-parties.