Yesterday’s post looked at the Foreign Intelligence Surveillance Court’s (“FISC” or “FISA Court”) recent approval of the National Security Agency (NSA) phone metadata collection program through the lens of the USA PATRIOT Act. But the Court also spends a great deal of time on the applicability (or, as the Court determines, the inapplicability) of the Fourth Amendment.
As discussed in Judge Eagan’s opinion, the FISA Court determined that the production of call detail records such as those requested by the FBI does not constitute a “search” under Smith v. Maryland (442 U.S. 735 (1979)), rendering the Fourth Amendment inapplicable to this case.
This holding, the Court stated, is consistent with the more recent Supreme Court opinion United States v. Jones (132 S. Ct. 945 (2012)). This is because the FBI request before the Court did not implicate pervasive monitoring of a person’s location, like that seen in Jones. Rather, it concerned the “acquisition of non-content metadata other than location information” like that seen in Smith.
Based on this reasoning, the Court concluded the opinion by stating:
The Supreme Court may some day revisit the third-party disclosure principle in the context of twenty-first century communications technology, but that day has not arrived. Accordingly, Smith remains controlling with respect to the acquisition by the government from service providers of non-content telephony metadata such as the information to be produced in this matter.
In case you missed it yesterday, here are the links to, (1) the October 11 FISC opinion, and (2) Judge Eagan’s primary order and amended memorandum opinion.
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