What Is Private, What Is Not

by Andrew C. McCarthy
The national security of the United States justifies the collection of “metadata.”

Seemed reasonable to me. “I want the names, addresses, and telephone numbers of every person in the five boroughs.” I barked the instruction to one of the eager young interns whose job was not to wonder aloud why cranky federal prosecutors made such demands but to produce the goods, pronto.

He was new, but not so new that it didn’t seem like a bizarre directive. He wouldn’t say so, but his eyes were pleading, “Is everyone a suspect?”

“Never mind,” said I as he started to scurry out the door. “I’ll do it myself.” With that I reached across the desk to the windowsill that served as a bookshelf in my disheveled office. One at a time, they thudded onto my desk — Ma Bell’s huge telephone directories for the Bronx, Manhattan, Brooklyn, and Queens, plus the thinner Staten Island volume.

Pranks like that aren’t unusual in a busy U.S. attorney’s office. There is an inordinate amount of tension, as there should be, at the crossroads between the awesome power to compel information and the solemn duty to respect the Constitution’s barriers, to remember that a public prosecutor is supposed to be a public servant, not master. The pranks break the tension while reminding those who trade in the business of evidence that there are various grades of information. What sounds very personal is often not very private, and that’s a lot truer today than it was 20 years ago, back when I was teasing the help, just as I’d been teased by my seniors.

It never occurred to me back then to wonder whether or why it was kosher for a prosecutor to have a phone book at the ready — or, my personal favorite, the Cole’s Directory, a criss-cross that helped you find street addresses by phone number and vice versa. They were the most dog-eared books in the place, undoubtedly thumbed far more often than the federal reports or any other jurisprudential compendium.

After this week, though, these are questions worth pondering. As we’ve discussed at great length on the Corner and elsewhere at National Review Online (see, e.g., here, here and here), there is shrieking in the land over revelations that, for the better part of a decade, the federal National Security Agency (NSA) has been gathering and storing “metadata” on American citizens. That is, in connection with untold millions of phone calls, both international and — jarringly to many — domestic (yes, American-to-American), the government is compiling the phone numbers involved, the duration of the calls, and the like. This is often called “envelope information,” an analogy that contrasts the dry and presumably innocuous details about conversations with the content of conversations — what is inside the envelope.

The analogy is useful because what is inside the envelope is protected by the Fourth Amendment. Under Supreme Court precedents, there is an “objectively reasonable” expectation of privacy about the content of our conversations — one that society and our law protect from government intrusion absent probable cause that it will contain proof of a crime. The metadata, to the contrary, is unprotected — just like the addresses on the outside of the envelope that everyone gets to see, or like the pages of the phone books in my old office.

In one of those fortuitous coincidences that seem to happen around this time of year, the latest controversy over surveillance by the NSA (an agency that was similarly embroiled in the Bush years) erupts just as the Supreme Court decides a case shedding light on the subject. The justices ruled, 5–4, that state law enforcement may, without a warrant, swab for DNA from arrested suspects. The case is notable not just for the sharply divided result but also for the unusual array of justices on each side. Writing a withering dissent, joined by three of the Court’s staunchest lefties, was none other than Justice Antonin Scalia, among its most reliable conservatives.

Justice Scalia’s principal contention — one the majority did not really answer — was that the ruling was built on a fiction. The majority claimed that warrantless DNA collection was permissible, just like warrantless fingerprint collection, for purposes of identifying the arrestee — something that is obviously necessary to do in order to ensure that police know whom they have in custody and can set bail with an accurate knowledge of the arrestee’s prior criminal history. But Scalia powerfully demonstrates that a defendant’s prior identity is conclusively established long before the DNA testing is done (and, by the way, that the majority’s assumption that warrantless fingerprinting passes constitutional muster is, to say the least, debatable).

Instead, Scalia compellingly explains, the purpose of DNA testing is to solve unsolved crimes. It is to seize information from inside the envelope, so to speak (a physical intrusion of the arrestee’s person is required for swabbing), without what the Fourth Amendment presumptively mandates: a judicial search warrant issued only after probable cause of criminality has been shown.

This gets us back to the NSA. Justice Scalia points out that, when the real purpose of DNA testing is considered, it turns American criminal justice on its head. The Fourth Amendment puts the burden on government to come forward with a particularized suspicion of a suspect, established by probable cause that he has committed a crime, before the government may search for and seize evidence. The DNA swab, instead, assumes the arrested person, despite being presumed innocent, is in a category of persons who are suspicious a priori, such that their DNA is apt to match DNA collected at the scenes of unsolved crimes. That’s not particularized suspicion; it is more like a “general warrant,” which was anathema to the Framers.

So does that mean there must be probable cause that a person is a national-security threat before the NSA puts his information in a database just like, according to Justice Scalia, there should be probable cause that the arrestee committed the unsolved crime before police get to swab for DNA?

No. Let’s put aside for the moment that Scalia’s opinion is a dissent and assume, as I do, that he has the better of the argument. His theory proceeds from the inarguable premise that the warrant requirement is triggered by very intrusive searches — the Constitution expressly protects the American people only in their “persons, houses, papers, and effects.” Modern Fourth Amendment jurisprudence has expanded this ambit to include matters or items in which there is an “expectation of privacy” judicially deemed “objectively reasonable.” Notwithstanding the caterwauling of privacy activists, though, the courts have forcefully rejected the notion that telephone metadata qualifies. The content of conversations? Yes. The numbers dialed, the duration, the fact that the conversation took place? No.

There is, of course, more to the story, as my friend Jonah Goldberg points out in a characteristically insightful column. Perhaps more significant than what the law permits is whether living on the outer margins of what it permits is wise.

I doubt people worried about the phone books on my prosecutor’s desk any more than I did, even though they surely were warrantless collections of data pertinent to many more innocent than suspicious people. Why? Because people assumed, just as I assumed, that I would resort to the data only in connection with investigations based on bona fide, particularized suspicions of wrongdoing. It was inconceivable that I’d pick up the phone book, open to a random page, pick out an unlucky name, and start issuing subpoenas just because I could.

In the DNA case, both Justice Scalia and the majority (in the opinion written by Justice Anthony Kennedy) acknowledge that our constitutional law has also long accepted warrantless searches outside the criminal-justice process — meaning searches whose objective is not to find evidence of a crime to be used against an accused at trial. These are called “special needs” searches. They include, for example, drug-testing at public schools or railroads.

Why do we permit the randomness of special-needs searches to substitute for particularized suspicion? It is more a matter of politics than law. There is, that is to say, a societal consensus that a higher purpose justifies dispensing with individual, subjective expectations of privacy. When there is such a higher purpose, our law permits highly intrusive searches. Not just metadata — these are searches that would undoubtedly be prohibited, absent a judicial warrant, if the aim were to prove a crime.

The national security of the United States is the highest societal purpose we have as a political community. When the public believes it is threatened, and especially when it believes we are a nation at war, it is beyond cavil that information unprotected by the Fourth Amendment may be collected by the government. Indeed, it should be collected if it can be used for our protection.

If this were September 12, 2001 — or maybe even Boston on April 15, 2013 — there would be no NSA controversy.

But what if the politics is such that an American president blinks his eyes and pronounces the end of a war the enemy is still fighting? What if his administration effectively opens the Oval Office phone book and capriciously pores over the tea-party pages? That is when it becomes easy to convince oneself that the government has become more dangerous than the terrorists.

It may not be true. But politics frequently isn’t . . . and when it’s not, it doesn’t much care what the law says.

— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.

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