Preliminary Thoughts on Judge Leon’s Opinion

In this post, I’ll offer a few thoughts on Judge Leon’s remarkable opinion on NSA surveillance. Unfortunately, my time was limited, so I have to offer a more brief analysis than I would normally like to do. Here are a few thoughts for now, with more to come later if time permits.

(1) Distinguishing Smith v. Maryland

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Here’s why. Judge Leon says that the most important ground for distinguishing Smith is that we have a fundamentally different relationship with telephones today than existed in 1979. Today’s cell phones are not just phones, Judge Leon emphasizes. They are computers with functionality wholly apart from telephony. Today’s cell phones are maps, cameras, text messaging machines, and even lighters that can be held up at rock concerts. As a result, Judge Leon argues, Americans have an “entirely different” relationship to phones than they did in 1979. And Judge Leon therefore cannot possibly follow a decision from the pre-cell phone era.

I find this argument deeply unpersuasive. Most obviously, why does it matter that today’s phones are combined in a single device with other functions? The NSA’s program is not collecting information about the use of those other functions. It is only collecting the same information that was collected in Smith v. Maryland: Information about numbers dialed using the device’s telephone functionality and when the call was made. (In FN57, Judge Leon says that he is unsure of whether the program collects location information, but he says nothing in his opinion depends on that question.) Although it’s true that we have different relationships today to items we label “phones” than we did to items labeled “phones” in 1979, that’s because of functions unrelated to the calling feature of those items.

Take the point Judge Leon makes that cell phones can be held up in lieu of lighters at rock concerts. Um, so what? Holding up a cell phone at a rock concert is not using the phone as a phone. It is not generating any records that the NSA collects. Distinguishing Smith on that basis is like saying that the automobile exception doesn’t apply to searching a Tesla because electric cars are so different from the gas-fueled vehicles of past Fourth Amendment cases. Yes, electric cars are different in some ways. But they’re not different in any way relevant to the reasoning of the Supreme Court’s decisions on the automobile exception. If Supreme Court precedent can be so lightly cast aside, there will always be a way to get around any case you don’t like.

Of course, I realize that some people hate Smith v. Maryland with a passion of a thousand suns, and they think that following it on precedential grounds is mechanical and small-minded. But it is the job of inferior judges to be mechanical and small-minded, at least if being mechanical and small-minded means following Supreme Court precedent. And at the risk of having rotten tomatoes thrown my way, I’ll add that I think Smith v. Maryland is not only correct, but it is an essential part of applying the Fourth Amendment to modern communications technologies. See my articles here and here.

II. Where Do We Go From Here?

So now the case gets appealed to the DC Circuit. Here’s where things get interesting. Recall our recent posts on whether the mosaic theory of Maynard is still good law in the DC Circuit, in which I ultimately concluded that Maynard is still binding in the DC Circuit. Suddenly that discussion becomes important. On appeal, the DC Circuit may conclude without much trouble that it is still bound by Smith. But after doing so, the Court will still have to grapple with the mosaic theory of the Maynard decision.

Judge Leon does cite Maynard, but he underutilizes it. Remember, the Maynard mosaic theory is a game changer: It allows a judge to say that Smith is still correct but that large-scale surveillance is nonetheless unconstitutional, at least after some unknown point which presumably the NSA crossed. As I explained in my article The Mosaic Theory of the Fourth Amendment, trying to operationalize the mosaic theory raises lots of really novel and complicated practical and theoretical questions. But if Maynard is still good law, then the DC Circuit will have to deal with those questions in reviewing Judge Leon’s decision.

Of course, the DC Circuit may just conclude that telephony metadata surveillance does not trigger the mosaic theory. On the other hand, they might not. Especially with its new liberal members, the DC Circuit may try to take the mosaic theory and craft something new and novel with it, taking the Fourth Amendment in unexpected and unpredictable directions into a new Fourth Amendment future. Whoever loses is very likely to petition for cert at the Supremes. And that will lead the Supreme Court to at least have the opportunity to answer how Smith v. Maryland applies today — and perhaps even whether the mosaic theory is viable. And even if the Supreme Court denies cert, a DC Circuit ruling might effectively push the judges on the FISC to rethink their analysis of the issues. Either way, a lot might happen.

In short, my view of Judge Leon’s decision is that it’s unpersuasive in its reasoning, but that it starts a conversation that might lead to some very interesting places.