Snowden, *by law*, needed to do what he did.

[JDPriestly]

36. Different facts. Could distinguish the current NSA practice and result in a very different ruling.

The prior case, Smith v. Maryland concerned a legitimate business search related to the investigation of, I believe, theft of some kind. The person whose records were obtained was reasonably suspected of committing a crime. The investigators might have been able to argue that there was probably cause to obtain the records in any event.

The court ruled in part:



Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud, and preventing violations of law." United States v. New York Tel. Co., 434 U.S., at 174 -175.

http://en.wikipedia.org/wiki/Smith_v._Maryland

Here, the NSA is grabbing, saving for potential review, sometimes reviewing, analyzing and also perhaps saving long-term data from people who are not in the least suspected of any wrongdoing, not in any way linked to a criminal investigation. The excuse for collecting the metadata is that it might help catch terrorists. Fact is that it never has helped catch a terrorist.

Obviously, the NSA is ignoring any duty to establish the slightest suspicion, much less a reasonable suspicion and by no means anything approaching probable cause (the language of the Fourth Amendment) before acquiring this megamountain of personal megadata.

What can be done with the metadata in this day of very fast computers with complex programs for analyzing data makes the collection of metadata a very serious matter. Were I arguing the case, I would question whether this phrase applies to the NSA's collection of metadata: "Given a pen register's limited capabilities." A pen register in the hands of the NSA with its huge computer capacity has almost unlimited capabilities to pry into the lives of innocent people. And inevitably, if it isn't already, it will be used to do so.

The collection of metadata threatens to destroy the fabric of the Bill of Rights. Call the ACLU, a gun store, a doctor, transmit health or psychiatric records, talk to your lawyer, communicate via electronic media with anyone, and the NSA and the FBI have your information. Never mind that you are not a criminal, just someone wishing to run for office or, worse yet, someone serving in office including the Supreme Court or Congress, the NSA and maybe the FBI know what you do in your "free" time. They know what church or synagogue or mosque you attend. They know what experts you call. They know whether you call an abortion clinic, a library, a sex shop. They know whether you watch porn or gamble online. They know it all. And anyone in the corporations or NSA or the executive branch can leak information on you, information that may be misinterpreted or falsified or may be misleading (a guest using your phone?) and twisted to harm you, your reputation and your family.

The program is grotesque, out of bounds, way too comprehensive and very dangerous.

The NSA metadata collection would have outraged the Founding Fathers, especially James Madison.

The Third and Fourth Amendments are in the Constitution in part because the British government forced colonial Americans to house British soldiers in their homes against the will of the American colonists. The NSA metadata collection is quite similar to the kinds of intrusions into the privacy of the colonists that the American Revolution was, in part, fought over.