The Power of Un-Precedent

National-Security-AgencyOn Monday, Judge Richard Leon of the D.C. District Court issued the first public ruling by a judge considering the National Security Agency’s activities since Edward Snowden revealed the NSA’s surveillance activities last summer.  Judge Leon held that individual plaintiffs had standing to challenge the constitutionality of the NSA’s bulk collection and querying of phone record metadata, they demonstrated a substantial likelihood of success on their merits of their Fourth Amendment claim, and that they will suffer irreparable harm without injunctive relief.  The court granted certain of the motions for preliminary injunction and, in view of the significant national security interests at stake and the novelty of the constitutional issues, took the extraordinary step of staying the order pending appeal.

The 68 page opinion explains both the applicable law and the mechanics of the NSA’s data collection and query system in a very engaging and readable fashion.  One of the many things that struck me about the opinion was what it portends about the value of judicial precedent in our world of fast-paced technological changes.

Of the several constitutional challenges raised, the judge focused on the claims that the NSA’s Bulk Telephony Metadata Program involved unreasonable searches under the Fourth Amendment to the Constitution by both the collection and the analysis of that data.  In arguing the NSA data collection program was constitutional, the government relied on the Supreme Court opinion Smith v. Maryland, 442 U.S. 735 (1979) as controlling authority that no one has a reasonable expectation of privacy in the telephony metadata that telecom companies hold as business records.

In Smith, police were investigating a robbery victim’s reports that she had received threatening phone calls from someone claiming to be the robber.  Without obtaining a warrant or court order, police installed a pen register (a device or process which records or decodes dialing, routing, or signaling information) at the telephone company that showed a telephone in Smith’s home had been used to call the victim.  The Supreme Court held that Smith had no reasonable expectation of privacy in the numbers dialed from his phone because he voluntarily transmitted them to his phone company, and because it is generally known that phone companies keep such information in their business records.

Judge Leon disagreed with the Government that the analysis in Smith controlled whether a search occurred in this situation.  He held that evolutions in the Government’s surveillance capabilities, citizens’ phone habits and the relationship between the NSA and telecom companies were completely different than the facts considered by the Court 34 years ago in Smith and the bulk collection of data and analysis “almost certainly does violate a subjective expectation of privacy that society recognizes as reasonable” and, therefore, constitutes an unreasonable search in violation of the Fourth Amendment.  Four determinative factors were cited by the judge:

  1. The creation and maintenance of a historical database containing five years of data is of significantly more volume, and is neither transient nor merely forward-looking, as was the information gathering in Smith;
  2. The service providers’ daily production of information to the NSA since May 2006 shows a close relationship, effectively a joint intelligence-gathering operation with the government, whereas the telephone company in Smith merely installed a device at its central offices to record numbers dialed from a single phone;
  3. The “almost-Orwellian technology” that enables the Government to store and analyze the phone metadata of every telephone user in the United States for years into the future was inconceivable in 1979, when Smith considered whether local police could collect one person’s phone records for calls made after the device was installed and for the limited purpose of investigating harassing phone calls; and
  4. The nature and quantity of the information contained in peoples’ telephony metadata is hugely different today than it was 30 some years ago.  The number of mobile subscribers far exceeds the number of land line telephones in use in 1979, and phones have morphed into multi-purpose devices such as maps, music players and cameras, causing Judge Leon to state, “the ubiquity of phones has dramatically altered the quantity of information available and, more importantly, what that information can tell the government about peoples’ lives.”

Judge Leon concluded not that these cultural changes in technology mean people are reconciled to less privacy in their lives, but, rather, that it is “more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable.”

In finding the plaintiffs had an expectation of privacy and that, therefore, a search occurred, Judge Leon said that the Smith case was so significantly different due to technological advances since it was decided, it is not useful as precedent.  “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

Did Judge Leon violate the principle of stare decisis—a legal principle by which judges are obliged to respect the precedent established by prior decisions?  No.  The notion of precedent being binding or persuasive on a lower court or later judge in the same court only applies if the subsequent case has similar facts.  Analyzing the facts and drawing either similarities or differences between their case and prior cases is what the parties to a lawsuit do—and what judges do in making their determinations.

But it is remarkable in the area of constitutional law, where it is not uncommon to see cases relied on as precedent dating back a century or more, to have a case a mere 30 years old be discarded as irrelevant.

Does this mean legal precedent will hold less sway in our rapidly changing culture?  What about the availability of guidance from past decisions or predictability about the legality of future actions?  If new technology is so different from prior case circumstances, will we find more and more cases of first impression, putting more power into the hands of lower court judges?

A related factor to note about legal precedence and stare decisis is reflected in the fact that Judge Leon’s opinion has 71 footnotes, a significant minority including internet links.

As we have written before, the propensity to cite hyperlinks in case law is growing and may be creating a challenge to stare decisis because of the phenomenon known as link rot (hyperlinks to webpages that have become unavailable) or reference rot (the link exists but the information referenced no longer is present).  A recently published study of United States Supreme Court cases by Raizel Leibler and June Liebert of the John Marshall Law School in Chicago found that nearly one-third of the websites cited in written opinions were non-functioning, and the rate of disappearance was not affected by the type of document (e.g. government or non-government).   Similarly, a study by Harvard law professor Jonathan Zittrain found that the percentage of non-working Supreme Court links was 50 percent and as to links in the Harvard Law Review measured from 1999 to 2012, a whopping 70 percent were defunct.

According to the Chesapeake Digital Preservation Group, a collaborative archiving program for legal materials posted to the Web, the average life span of a webpage is between 44 and 75 days.  It began collecting and analyzing URL data for on-line materials in 2007 and noted in its 2013 report that after 5 years, 38 percent of the links no longer worked.

What will be the change wrought by the trend to cite sources that only exist online and are not contained in the dusty books that have been the mainstay of our system of legal knowledge and the backbone of our Rule of Law?  What does unprecedented change mean for a profession steeped in the value of adhering to precedent?

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