Sep 152014

Last week Durie Tangri and I filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in the appeal of Smith v. Obama. Smith v. Obama is one of the many lawsuits being brought against the government following revelations of how the NSA has been spying on Americans’ communications. Like several of the others, including First Unitarian Church of Los Angeles v. NSA and Klayman v. Obama, this case is about the government’s wholesale collection of telephonic metadata – or, in other words, information reflecting whom people called, when, and for how long (among other details).

In the Klayman case, which is now on appeal at the D.C. Circuit Court of Appeals, the district court judge found that this wholesale, warrantless, collection of people’s call records indeed violated the Fourth Amendment. In Smith v. Obama, however, the district court had reached the opposite conclusion. Despite finding the reasoning in Klayman persuasive, the district court judge here felt bound to follow the precedent set forth in a 1979 Supreme Court case called Smith v. Maryland.

In that case the Supreme Court held that it did not violate the Fourth Amendment for the government to acquire records of people’s calls. The government only violates the Fourth Amendment when it invades a “reasonable expectation of privacy society recognizes as reasonable” without a warrant. But how could there be an expectation of privacy in the phone number a person dialed, the Supreme Court wondered. How could anyone claim the information was private, if it had been voluntarily shared with the phone company? Deciding that it could not be considered private, the court therefore found that no expectation of privacy was being invaded by the government’s collection of this information, which therefore meant that the collection could not violate the Fourth Amendment.

The problem is, in the Smith v. Maryland case the Supreme Court was contemplating the effect on the Fourth Amendment raised by the government acquiring only (1) specific call information (2) from a specific time period (3) belonging only to a specific individual (4) already suspected of a crime. It was not considering how the sort of surveillance at issue in this case implicated the Fourth Amendment, where the government is engaging in the bulk capturing of (1) all information relating to all calls (2) made during an open-ended time period (3) for all people, including (4) those who may not have been suspected of any wrongdoing prior to the collection of these call records. What Smith is arguing on appeal is that the circumstances here are sufficiently different from those in Smith v. Maryland such that the older case should not serve as a barrier to finding the government’s warrantless bulk collection of these phone records violates the Fourth Amendment.

In particular, unlike in Smith v. Maryland, in this case we are dealing with aggregated metadata, and as even the current incarnation of the Supreme Court has noted, the consequences of the government capturing aggregated metadata are much more harmful to the civil liberties of the people whose data is captured than the Supreme Court contemplated back in 1979. In U.S. v. Jones, a Fourth Amendment decision issued in 2012, Justice Sotomayor observed that aggregated metadata “generates a precise, comprehensive record” of people’s habits, which in turn “reflects a wealth of detail about [their] familial, political, professional, religious, and sexual associations.” One of the reasons we have the Fourth Amendment is to ensure that these associations are not chilled by the government being able to freely spy on people’s private affairs. But when this form of warrantless surveillance is allowed to take place, they necessarily will be.

While it’s bad enough that any associations are chilled, in certain instances that chilling implicates other Constitutional rights. The amicus brief by the Reporters Committee for Freedom of the Press addressed how the First Amendment is undermined when journalists can no longer be approached by anonymous sources because, if the government can easily discover evidence of their conversations, the sources effectively have no anonymity and will be too afraid to reach out. Similarly, the brief I wrote discusses the impact on the Sixth Amendment right to counsel when another type of relationship is undermined by this surveillance: that between lawyers and their clients.

The lawyer-client relationship is a type of relationship normally entitled to a great deal of privacy, which is normally protected by attorney-client privilege, the work product doctrine, and lawyers’ ethical duty to protect the confidentiality of client information. These privacy protections can apply even when aspects of the attorney-client communications are exposed to third parties, including “telephone operators” and other agents of the lawyers helping the lawyers dispense their counsel. Furthermore, these privacy protections can also apply to information that merely identifies the attorney-client relationship in situations when discovering the existence of that relationship would prejudice the client.

It is because the lack of privacy can prejudice the client that these privacy protections exist. Their existence independently suggests that there is a legitimate expectation of privacy in lawyer-client relationships that society recognizes as reasonable, and that when the government invades that privacy, doing so without a warrant therefore violates the Fourth Amendment. But it’s because the client can be so prejudiced that the surveillance at issue here is so constitutionally problematic for reasons beyond just the Fourth Amendment: it also violates the Sixth Amendment.

The Sixth Amendment guarantees the right to counsel. This right has been interpreted to mean “effective” counsel. But lawyers cannot provide effective counsel when clients are not assured of sufficient secrecy within their relationship to induce their candor. As the Supreme Court has noted several times, clients need to be able to trust in the privacy of their communications with their attorneys in order to engage in the “full and frank” conversation necessarily to fully apprise their lawyers of all the facts and circumstances the lawyer needs to be able to put on an effective defense.

But when the government can easily vacuum up evidence of these communications they are no longer private. When the government can look at the call records of an attorney and determine who might have turned to him for help, or whom he might have contacted when preparing a defense, the sphere of privacy the attorney-client relationship depends on to form and function effectively evaporates. The government is now a witness to these conversations, a third party that has inserted itself into the attorney-client relationship, whose presence necessarily chills it. When this chilling happens the Sixth Amendment right to counsel is thus undermined, and for this reason, too, the government’s surveillance program to indiscriminately and warrantlessly collect all the phone records of nearly all people, including those between lawyers and those seeking their help, cannot be allowed to continue.

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