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The Synergy of Privacy and Speech THE SYNERGY OF PRIVACY AND SPEECH Nicole B. Cásarez* TABLE OF CONTENTS INTRODUCTION ............................................................................. 814 I. UNDERSTANDING THE USA FREEDOM ACT AND EXECUTIVE ORDER 12333 ......................................................................... 822 A. The USA Freedom Act ..................................................... 823 B. Executive Order 12333 ................................................... 827 II. COMMUNICATIONS METADATA AND THE FOURTH AMENDMENT .......................................................................... 836 A. Mail Privacy and the Fourth Amendment Path ................... 836 B. Electronic Eavesdropping and False Friends ........................ 838 C. Communications Metadata and the Third Party Doctrine ..... 840 D. The Future of the Third Party Doctrine .............................. 844 III. COMMUNICATIONS PRIVACY AND THE FIRST AMENDMENT .... 847 A. The Content/Metadata Distinction and the First Amendment ................................................................. 850 B. Is the Chilling Effect Real? ............................................... 853 C. If a Chilling Effect Exists, Is It Legally Cognizable under the First Amendment? ......................................................... 859 D. The Problem of Standing ................................................. 865 IV. AT THE CONVERGENCE OF PRIVACY AND SPEECH ................... 870 A. “Scrupulous Exactitude” ................................................. 872 B. The Keith Case ............................................................. 875 C. Applying Keith to Bulk Collection of Domestic Communications Metadata ............................................ 880 D. A Way Forward ............................................................. 888 * Visiting Professor of Law, University of Houston Law Center; Professor, Communication, University of St. Thomas, Houston, Texas. University of Texas, B.J., 1976, J.D. 1979; Uni- versity of Houston, M.A. 1991. I would like to thank Peter Linzer and Emily Berman, both of the University of Houston Law Center, for their encouragement and their help- ful comments on earlier drafts. Any errors that remain are mine alone. 813 814 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3 CONCLUSION ................................................................................. 893 INTRODUCTION However history ultimately judges Edward Snowden, his 2013 rev- elations regarding secret bulk collection of domestic phone records by the National Security Agency (“NSA”) eroded many Americans’ trust in their government, as well as their confidence in the privacy of their electronic conversations.1 Americans were shocked and an- gered to learn that their government had been collecting all kinds of information about their communications, without serious judicial su- pervision and when most or all of the data was domestic. Fears that America had turned into a surveillance state fueled sales of encryp- tion technology2 and were reflected in both the media and popular culture.3 1 See, e.g., Pew Research Center, Public Perceptions of Privacy and Security in the Post-Snowden Era, 23–25 (Nov. 12, 2014), http://www.pewinternet.org/ files/2014/11/PI_Public PerceptionsofPrivacy_111214.pdf [hereinafter Pew 2014 Study] (finding that, with respect to landline phones, cell phones, text messaging, instant messaging, email, and social me- dia messaging, “there is not one mode through which a majority of the American public feels ‘very secure’ sharing private information with another trusted person or organiza- tion”). 2 See e.g., Bill Flook, There’s No Business Like Snowden Business, WASH. BUS. J. (July 25, 2014), http://www.bizjournals.com/washington/print-edition/2014/07/25/ theres-no-business- like-snowden-business.html?page=all (describing how consumer interest in encryption technology increased following the Snowden disclosures). 3 Journalists covering the Snowden revelations inevitably invoked George Orwell. See PEN Surveillance Mapping Metaphor Project, PEN American Ctr., http://www. pen.org/ infographic/pen-surveillance-metaphor-mapping-project (illustrating that Orwell’s novel 1984 was the only literary work referred to in the PEN America survey). Government surveillance also inspired art exhibits, songs, and even a popular Holly- wood children’s movie. See, e.g., Peter Maass, Art in a Time of Surveillance, First Look, THE INTERCEPT, Nov. 13, 2014, https://firstlook.org/theintercept/2014/11/13/art- surveillance-explored-artists; John Hanlon, Why The LEGO Movie is the new Nineteen Eighty-Four, THE WEEK, Feb. 7, 2014, http://theweek.com/article/index/256154/why- the-lego-movie-is-the-new-nineteen-eighty-four (comparing the influence of government surveillance in Orwell’s 1984 and The LEGO Movie); Rock, Paper, Cynic, Hello NSA (A Love Song of Mass Surveillance), YOUTUBE (Feb. 11, 2014), https://www.youtube.com/ watch?v=Eiu-7Ij6CWI. Feb. 2016] SYNERGY OF PRIVACY AND SPEECH 815 After two years of public debate and political grandstanding, Con- gress finally enacted the USA FREEDOM Act,4 and news reports trumpeted the end of government bulk collection of American tele- phone records.5 No longer could the government use Section 215 of the USA PATRIOT Act6 to force telecommunications providers to de- liver to the NSA, on a daily basis, the “metadata”—transmittal infor- mation including the numbers dialed, time, date, and duration7— associated with most Americans’ phone calls.8 Both President Barack Obama and Edward Snowden applauded the passage of the new law,9 the latter calling it “a historic victory for the rights of every citizen.”10 4 Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268, codified at 50 U.S.C. § 1861 (2015) [hereinafter Freedom Act]. 5 See, e.g., David Cole, Reining in the NSA, N.Y. TIMES REV. OF BOOKS (June 2, 2015), http://www.nybooks.com/blogs/nyrblog/2015/jun/02/nsa-surveillance-congress-sunset; Sabrina Siddiqui, Congress Passes NSA Surveillance Reform in Vindication for Snowden, THE GUARDIAN (June 3, 2015), http://www.theguardian.com/us-news/2015/ jun/02/ congress-surveillance-reform-edward-snowden. 6 Uniting and Strengthening America by Providing Appropriate Tools Required to Inter- cept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, 115 Stat. 272 (codified in scat- tered titles of the U.S.C.) [hereinafter Patriot Act]. Section 215 of the Patriot Act amended the “business records” provision of the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended in scattered sections of 8, 18 and 50 U.S.C.) [hereinafter FISA]. The business records provision authorizes the FBI Di- rector or a designee to seek: an order requiring the production of any tangible things (including books, rec- ords, papers, documents, and other items) for an investigation to obtain intelli- gence information not concerning a United States person or to protect against in- ternational terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. Patriot Act, codified as amended at 50 U.S.C. § 1861(a). The application for such author- ity need only “specify that the records concerned are sought for an authorized investiga- tion . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Id., codified as amended at 50 U.S.C. § 1861(b)(2). 7 See David Medine et al., Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court, Pri- vacy & Civil Liberties Oversight Bd. 8 (2014), https://www.pclob. gov/library/215- Report_on_the_Telephone_Records_Program.pdf [hereinafter PCLOB Section 215 Re- port] (defining “metadata” for phone calls and emails). 8 To be more precise, the Freedom Act authorized the government to restart the former Section 215 program and operate it for six months while the NSA and the telecommuni- cations providers transition to the new, Freedom Act system. Freedom Act, supra note 4, at § 109(a). 9 See Jennifer Steinhauer & Jonathan Weisman, U.S. Surveillance in Place Since 9/11 is Sharply Limited, N.Y. TIMES, June 3, 2015, at A1 (noting that “Mr. Obama was quick to praise pas- sage of the legislation and to scold those who opposed it”). 10 Edward J. Snowden, Edward Snowden: The World Says No to Surveillance, N.Y. TIMES, June 5, 2015, at A27. 816 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3 Politicians and professors labeled the Freedom Act the most signifi- cant surveillance reform in decades, describing it as a reflection of the popular belief that the government has no business spying on Americans’ calls.11 Some went so far as to give credit to Snowden for launching a debate that led to legislative reform, resulting in a para- digmatic example of the democratic process at work.12 In fact, however, these laudatory remarks overstate what the Free- dom Act actually accomplished. While the new law imposes some limits on the government’s ability to gather Americans’ domestic communications records under the Patriot Act, the Freedom Act leaves untouched the government’s power to collect most (if not all) of these same records under other legal authorities.
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