%3Cobject%20width%3D%22560%22%20height%3D%22315%22%20allow%3D%22autoplay%22%3E%3Cparam%20name%3D%22movie%22%20value%3D%22%2F%2Fwww.youtube.com%2Fv%2FEjKFtNMdJeA%3Fversion%3D3%26amp%3Bhl%3Den_US%26autoplay%3D1%26version%3D3%26playsinline%3D1%22%3E%3Cparam%20name%3D%22allowFullScreen%22%20value%3D%22true%22%3E%3Cparam%20name%3D%22allowscriptaccess%22%20value%3D%22always%22%3E%3Cembed%20type%3D%22application%2Fx-shockwave-flash%22%20width%3D%22560%22%20height%3D%22315%22%20src%3D%22%2F%2Fwww.youtube.com%2Fv%2FEjKFtNMdJeA%3Fversion%3D3%26amp%3Bhl%3Den_US%26autoplay%3D1%26version%3D3%26playsinline%3D1%22%20allowfullscreen%3D%22true%22%20allowscriptaccess%3D%22always%22%3E%3C%2Fembed%3E%3C%2Fobject%3E
Retired United States District Judge James Robertson gave the keynote address at the American Civil Liberties Union of the Nation's Capital's Bill of Rights Awards Dinner at The National Press Club on April 23, 2014.
Robertson was a member of the Foreign Intelligence Surveillance Court (FISA Court) from 2002 to 2005 and was chair of the Judicial Conference Committee on Information Technology from 2003 through 2005, presiding over the introduction of electronic filing in the federal courts. In Hamdan v. Rumsfeld he granted the first writ of habeas corpus to a Guantanamo detainee, shutting down his military commission trial until Congress brought commission procedures into compliance with the Geneva Conventions - a decision reversed by the court of appeals but affirmed by the Supreme Court.
Judge Robertson's Speech
I was surprised to receive Art Spitzer’s invitation to speak
tonight, but I put two and two together and figured that he probably expected
me to talk about my FISA court experience, or about NSA surveillance.
But it has been more than eight
years since I resigned from the FISA court, after President Bush and General
Hayden turned the Foreign Intelligence Surveillance Act into a Potemkin village. I have spent most of that time not
talking about FISA, at first because I thought it was illegal to disclose
classified information – silly me: just think: I could be enjoying the good
life in Russia now – and then, more recently, because eight-year-old knowledge of
something as fast-moving as surveillance technology is stale and of little public
interest.
So it was
both a surprise and, for me, a considerable honor, to be asked to speak to the
ACLU about privacy – a subject on which many in this room are far more expert
than I. For those among you who are
privacy wonks, what I have to say may be obvious or old hat, and for that I
apologize, but it is a message that I think needs to be heard in Main Street
America. The message is this: Don’t rely on the Constitution to protect your
privacy: it won’t, not anytime soon. The
idea of privacy is more cultural than legal anyway, and to preserve it we need
education more than litigation.
The
so-called right of privacy is not in the Constitution, of course. Its provenance is usually traced to a Harvard
Law Review article by co-authored by Louis Brandeis in 1890 that argued for a
“right to be let alone.” Not until
almost 40 years later, when Brandeis had reached the Supreme Court, did that
idea surface in a constitutional case, and then only in a Brandeis dissent (Olmstead) – the question was whether
wiretapping was a search requiring a warrant under the 4th
amendment, and the Court said no: the government wasn’t intruding upon the defendant’s
person, or his house, or his papers or effects.
It was only listening to the words he spoke out loud.
It took
another 40 years for the Court to come around to the view that someone who
enters a phone booth and closes the door is “entitled to assume that the words
he utters into the mouthpiece will not be broadcast to the world.” That was the Katz case (1967) that gave us Justice Harlan’s famous “reasonable expectation
of privacy” test, but the Court’s opinion did not recognize a general right of
privacy then and has not done so to this day.
The “right to be let alone,” the Court said, is “left largely to the law
of the individual states.”
After Katz came the problem of defining a
“reasonable expectation of privacy.” In
1979, the Court found no reasonable expectation of privacy in the telephone
records (the numbers we dial, the numbers that dial us) because when we make a
phone call we are “voluntarily convey[ing] numerical information to the
telephone company.” (Smith v.
Maryland) “It is too much to believe,”
the Court said, “that telephone subscribers harbor any general expectation that
the numbers they dial will remain secret.”
Sonia
Sotomayor was 25 years old then, and presumably a telephone subscriber. She certainly did not harbor the expectation
that dialed telephone numbers were secret – she was a prosecutor. But, 30-plus years later, her intriguing concurring
opinion in the GPS tracking case, Jones
(2012), asks whether the “expectation of privacy” calculus has changed. It may
be unreasonable for me to assume that I can cruise around town in my Jeep
without being observed or followed – but do I not have a reasonable expectation
of privacy in the whole story of my movement for a whole month? Every inch of my Jeep’s movement, where it
went, what route it followed, how long it stayed? Now that we have GPS devices, cell location technology,
closed circuit television video, automatic toll collection systems, and more, Justice
Sotomayor points out, “our movements can be recorded and aggregated in a manner
that enables the Government, more or less at will, to ascertain our political
and religious beliefs, sexual habits, and so on.” Does not such intense, extended surveillance
violate the protection afforded by the “reasonable expectation of privacy”
test?
Well, I don’t know, and neither did
the Supreme Court. And Justice Scalia,
writing for the Court, was not about to let a drug conspiracy conviction stand
or fall on something as indeterminate as the defendant’s subjective expectation
of privacy, or the jury’s decision whether or not that expectation was
reasonable. Instead, he fell back on the
pre-Katz trespassory idea of what is
a search: the warrantless physical attachment of the GPS device to the
undercarriage of the Jeep violated the 4th amendment guarantee that
the defendant would be secure in his “effects.”
Justice Scalia even managed to fit his analysis into his Procrustean bed
of originalism: “We have no doubt,” he
wrote, “that such a physical intrusion would have been considered a ‘search’
within the meaning of the Fourth Amendment when it was adopted.”
Justice Sotomayor’s concurrence suggests
that it may be time to “reconsider the
premise that an individual has no reasonable expectation of privacy in information
voluntarily disclosed to third parties,” but Justice Alito’s analysis
demonstrates why that’s not going to happen anytime soon. “Relatively short term monitoring of a
person’s movements on public streets” would not violate anyone’s privacy, he
suggests, but “longer term GPS monitoring” does. What?
How short is short? How long is
long? His answer is not reassuring. “We need not identify with precision the
point at which the tracking of this vehicle became a search,” he writes, but
“the line was surely crossed before the 4-week mark.”
I feel pretty comfortable on the
limb I am walking out on here: The warrantless
collection of telephone records has been legal since Smith v Maryland in
1975. The bulk collection of metadata is
Smith v Maryland, squared, or perhaps
raised to the tenth power. But there is
no metric for deciding when the difference between a pen register and bulk
metadata collection becomes a difference in kind and not degree – or for assessing
the public’s idea of whether my expectation of privacy is reasonable or not. It
will be years, I think, before the Supreme Court accepts Justice Sotomayor’s
suggestion to rethink the jurisprudence of privacy. The NSA’s metadata collection may indeed be unauthorized by Section 215 of the
Patriot Act, as the recent, excellent report of the Privacy and Civil Liberty
Oversight Board argues, and it seems likely to be laid low (or maybe driven
back underground) by politics anyway, but it’s not unconstitutional.
The more troubling question Justice
Sotomayor asks is whether advances in surveillance techniques will “shape the
evolution of societal privacy expectations.”
Whether, in other words, as surveillance technology gets more and more
effective, our expectations of privacy will get lower and lower. Critics call this problem the “circularity”
of the expectation of privacy test, because if surveillance gets better and our
expectations are reduced, the protection afforded by the 4th
amendment is reduced as well.
That question ought to make us
worry, not so much about what the government has done or might do or could do to
us, but what we are doing to ourselves.
Forty-five years ago, about when
Justice Harlan announced his “reasonable expectation” test, there was something
of an epidemic of airplane hijacking.
The response, of the airlines and the government, was the
empty-your-pockets, take-off-your-belt, put-your-bag-on-the-conveyor drill that
is now hardwired as part of the flying experience. I was a young civil rights lawyer then –
well, pretty young – and I remember thinking, This is terrible. This is an invasion of privacy. If this continues, Americans are going to
lose their instinct for privacy.
I have given myself full marks for
prescience. It has happened.
We all have Internet
connections. We accept cookies on our
devices. Most of us have Facebook or
LinkedIn accounts. All of our
grandchildren do. Every credit card
transaction – every SKU that is part of every credit card transaction, becomes
part of what we now call Big Data. We
know that Google reads our mail, because it sends us ads that relate to what we
are writing about.
Have you heard the story – not an
urban myth – of the man who stormed into a Target store to chew them out for
sending coupons for baby clothes and cribs to his teenage daughter? He returned a few weeks later to
apologize. His daughter was
pregnant. She hadn’t told her parents,
but Target knew. Its computers not only
discerned her pregnancy by finding patterns in her purchases, but, because she
was buying unscented lotions, it figured that she was at the beginning of her
second trimester.
Big Data and its co-conspirator the
Internet of Things are to our privacy as Vladimir Putin is to Ukraine. I would like to talk about it for hours --
but I see Art with the hook. I have a
few reading suggestions for you.
- Catherine Crump, a staff attorney in the ACLU
Speech, Privacy and Technology Project, and Matthew Harwood, a media strategist
at the ACLU, posted a blog on March 25 headed “Invasion of the Data Snatchers:
Big Data and the Internet of Things Means the Surveillance of Everything.” Read it and tell me if anyone has any
reasonable expectation of privacy anymore.
- Dave Eggers published a novel last year called The Circle.
It has been called dystopian.
Literary critics complain that it explains too much. But if you are one who believes that
transparency is the way to go, read it and tell me if you still think so.
- And, of course, Jeffrey Rosen’s The Unwanted Gaze: The Destruction of
Privacy in America. This book, first
published fourteen years ago, came before metadata collection, Big Data, and
the Internet of Things. It should be recognized today as the work of prophecy it
is.
Let me read just a few words from Rosen’s epilogue:
We are beginning to learn how much may be lost in a
culture of transparency: the capacity for creativity and eccentricity, for the
development of self and soul, for understanding, friendship, and even
love. Privacy is a form of opacity, and
opacity has its values. We need more
shades and more blinds and more virtual curtains. Someday, perhaps, we will look back with
nostalgia on a society that still believed opacity was possible and was shocked
to discover what happens when it is not.
I end where
I began, with the observation that privacy is a cultural matter that will not
be much affected by litigation. If that
sounds like a marketing message from one who retired from litigating to become
a judge and then retired from judging to become a mediator and an arbitrator –
well, you may think that, but I couldn’t possibly comment.
James
Robertson
U.S.
District Judge (ret.)
