ACLU v. Clapper: You Have No Privacy Right in Any Information You Share
Although the NSA assures citizens that the actual contents of phone calls are not recorded, the opinion states that, "since May 2006, has collected this information for substantially every telephone call in the United States."
Here's the nuts and bolts of why this is important:
Under the 4th Amendment to the Constitution, we are protected from "unreasonable searches and seizures." On page 32 of the opinion, the Judge articulates the standard of proof the Government needs to show in order to inspect individual records. The Judge states that it is reasonable for the government to inspect individual records UNLESS, "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation."
The ACLU argues that the category at issue-all telephony metadata-is too broad and contains too much irrelevant information. That argument has no traction here. - US District Judge William Pauley
The Judge goes on to explain that the mass data collection is "necessary" to "determine connections between known and unknown international terrorist operatives." This state interest, he reasons, provides the government grounds for mass data collection, even if most of the data is "irrelevant" to any real or potential investigation.
Beyond the state-interest argument, Judge Pauley goes on to hold that our privacy rights are limited to the moment we share a piece of information.
"When a person voluntarily provides their information to a third party, they forfeit their privacy right in that information." - US District Judge William Pauley
If this precedent is not dangerous, it is explicit. Privacy, under the 4th Amendment, is now limited to what you, and only you, know. Secrets are not private. Business relationships surely are not private. Best friends, may never share a private moment again. At least not in the eyes of the government.
In fact, the Judge's conclusion says it all:
The right to be free searches and seizures is fundamental, but not absolute ... Every day, people voluntarily surrender personal and seemingly private information to transnational corporations, which exploit the data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection ... A Court's solemn duty is 'to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression.
Judge Pauley has rejected the claim as false, that privacy rights should accompany the liberty we have to communicate with one another.
Judge William Pauley is a former New York State Legislator appointed to the bench by former President Clinton
About the Author
Chad Peace is president of IVC Media LLC, a partner at the law firm of Peace & Shea LLP, and legal strategist for the Independent Voter Project. He is also a Founding Board Member of the National Association of Nonpartisan Reformers.