Secrecy News

The Clapper “Lie,” and the Senate Intelligence Committee

Director of National Intelligence James R. Clapper has been widely criticized for making a false statement at a March 2013 hearing of the Senate Intelligence Committee.  What has gone unremarked, however, is the fact that the Committee permitted that statement to stand uncorrected.

Sen. Ron Wyden asked DNI James Clapper at a March 12, 2013 hearing “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

DNI Clapper replied “No, sir.” He added “Not wittingly. There are cases where they could, inadvertently perhaps, collect — but not wittingly.”

Based on this exchange, and in light of the revelations to the contrary made by Edward Snowden, some have concluded that DNI Clapper “lied to Congress,” as the New York Times editorial board put it last week. Some go further to suggest that the DNI should be prosecuted and imprisoned, as Sen. Rand Paul did yesterday.

It is of course wrong for officials to make false statements, as DNI Clapper did when he denied that NSA collects “any type of data at all” on ordinary Americans. But did the DNI actually “lie to Congress”?

In ordinary usage, lying usually connotes an intent to deceive.  In this case, DNI Clapper could not have intended to deceive the Senate Intelligence Committee because the true answer to Senator Wyden’s question was already known to Senator Wyden and to all the other members of the Committee (as noted the other day by ODNI General Counsel Robert S. Litt). Committee members could not have been misled by the DNI’s response, and it makes no sense to say that he intended to mislead them.

What remains true is that others — especially attentive members of the public — were deceived by the DNI’s statement.  If DNI Clapper “lied,” it was to them, not to the Senate Intelligence Committee, that he did so. But the Committee permitted that deception to occur, and to persist, and so it must take its share of responsibility for that.  Yet unlike the DNI (who apologized, several months after the fact, saying he misunderstood the question), the Committee has not acknowledged any failure on its part.

When Senator Wyden posed his question in open session, he was evidently attempting to corner the DNI and to compel him to involuntarily reveal classified information about the NSA bulk collection program. At the time, it seemed to be a clever rhetorical maneuver. Even if the DNI refused to respond or requested to answer the question in closed session, that would have indicated that something pertinent was being concealed.

However, by answering falsely, the DNI turned the tables on Senator Wyden and the Senate Intelligence Committee.  Whether by design or not (almost certainly not), the DNI’s response challenged the Committee to make its own choice either to disclose classified information about the NSA program — in order to rebut and correct the DNI’s answer — or else to acquiesce in the dissemination of false information to the public.

(There was another conceivable option. Without revealing specific classified information, the Committee could have issued a statement that the record of the March 12 hearing included certain erroneous and misleading statements, and that it should not be relied upon.)

As it turned out, the Senate Intelligence Committee made exactly the same choice that DNI Clapper is accused of making. The Committee evidently decided that national security classification trumped any obligation it had to produce an honest and accurate public record. As a result, the Committee itself became complicit in an act of public deception.

This is deeply unfortunate. It means that unclassified Committee statements and publications cannot be granted an unqualified presumption of accuracy or good faith. With the Clapper gambit, the Senate Intelligence Committee moved beyond the familiar practice of secrecy and into the propagation of false and misleading information.

13 thoughts on “The Clapper “Lie,” and the Senate Intelligence Committee

  1. I have no issue with the proposition that the Senate Committee on Intelligence should correct its record. But the argument that DNI James Clapper did not lie proceeds from an incorrect supposition that the common and ordinary meaning of “lie” governs. In this circumstance, the more demanding criminal prohibition against “perjury” is the applicable law. 18 U.S.C. § 1621 provides in relevant part:


    “(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true …

    “is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both.”

    Intent to deceive is not an element of perjury, nor is the tribunal’s knowledge that the statement is false. All that is required of the witness is knowledge that the statement is false and material.

    ODNI General Counsel Robert S. Litt undoubtedly knows this. The question is, whether the rest of us should be misled by a lawyer who ignores the applicable law?

  2. Desperate spin from increasingly desperate people. One wonders how they will react if it’s not just perjury, but the more serious charge of criminal conspiracy to violate 18 U.S.C. § 921 et seq that an NSA director or his deputies face.

    When…not IF…someone at NSA gets caught trying to link credit and debit card purchases of guns and ammo to individuals and addresses to create an illegal nationwide gun registry what the spin will be. Probably that it was a ‘rogue op’ even if all evidence points to this or even prior administrations going back to Clinton ordering it, or even if GCHQ/CSE were complicit in storing the data overseas in an effort to conceal it from Congress and the American people.

    All it would take is for one Senator, say a certain ambitious tea party Senator from a gun loving state like Texas, to ask, “Gen. Clapper or Alexander (or their successor), what does the NSA do with the data it ‘incidentally’ collects on Americans lawful firearms purchases in the course of collecting credit and debit card purchase metadata?” and the whole sweater starts to unravel. The next NSA director can hem, haw, or just shut his mouth and request that he only discuss that in closed, classified session. Either way he reveals something, and in my opinion it’s time the American people had answers on whether NSA is in fact storing their lawful firearms purchase and background check data or if the NSA truly is a purely foreign intelligence/counterterrorism agency rather than a budding Stasi.

  3. Besides the guns issue (the most likely IMO to lead to state legislators calling for individual NSA employees to be arrested by their respective state’s troopers if the feds wont’ prosecute or try to protect the NSA gun logging criminals) there’s the issue of Sen. Bernie. You don’t think he, just like Wyden, would ask a question he didn’t already know the answer to regarding whether the NSA uses ‘relax, it’s just metadata not linked to any names’ to ID members of Congress ‘special phones’, the ones they use to call hookers and oxycontin dealers?

    Or are we sheeple presumed to be so stupid as to believe the NSA when they say they can’t match the (202) and (703) numbers of a few hundred to a few thousand people in greater D.C. that the White House might have the most to gain from blackmailing? And that a foreign intelligence service would have the most to gain by blackmailing should they compromise an IT systems administrator like Snowden? You don’t get to call Snowden a traitor and then pretend that all is well and fixed now, the NSA is back in the business of compartmentalizing and encrypting everything to bar unauthorized access. We don’t believe you.

    Either Snowden is a traitor and he exposed how laughable the NSA’s internal security is, or he’s a patriot if one who got in over his head but who did the NSA favor in the long term that it’s pathetic internal controls were burned by him rather than an actual ChiCom/Russian spy. Take your pick. But don’t try to have it six ways from Sunday. Especially since the NSA has the ability to retroactively see every single person Snowden may’ve called unless he used burner phones (and even those could be linked by location of last use to areas Snowden was in)…and the NSA’s shills STILL have to resort to guesses and innuendo that ‘proves’ he was recruited prior to fleeing. Just like the GCHQ STILL has to claim David Miranda was a mule for encrypted classified documents without presenting a single one in court or filing a single charge against Miranda. All a GCHQ chap has to do is go on the tellie and say with GCHQ’s pet MPs that it’s true, and that’s enough.

    Again, #TeamNSA is pathetic and has totally lost control of the Narrative. They can’t even keep the liberal Establishment New York Times on the reservation, though the Washington Langley Post is still loyal to its true masters.

    Oh, and for John R. Schindler and the other #TeamNSA hacks reading this, Texas DPS can find the addresses of any NSA San Antonio employee involved in an illegal gun registry and arrest them within a few hours. There are probably more than a few individuals inside the state governments who despise the NSA and would welcome the chance to march inside its San Antonio facilities or take down an NSA perp at the Lackland base gate or at their homes. Ditto for the Utah State Police, and the Guard units that share a military reservation with NSA Bluffdale. Still think a corrupt Holder Justice Department can protect a corrupted intelligence community or rogue plants inside of it from justice?

  4. One need not defend the Intelligence Committee to note that Litt’s lawyerly evasion, i.e., that each member of the committee was already aware of “the program”, does not prove that the whole committee knew the answer to Wyden’s more specific question about that program in advance (whatever that program might have been). It is nonetheless problematic to claim that the Committee’s prior knowledge may convert what would be a lie into merely a knowingly false statement. Sounds pretty scholastic to me, given what is supposed to be the function of public Congressional hearings. It suggests that they are just playacting. Maybe so.

    The more important point, however, is that, even if one accepts Litt’s account of what was on Clapper’s mind when he answered Wyden’s question (that Clapper was thinking about the content of Americans’ communications), there is still every reason to believe that Clapper lied through his teeth, as Glenn Greenwald and the New York Times, among other news outlets, have shown ad infinitum (“collect it all”).

    The point about the Committee in this context is well taken, but it is overly technical. There is no real parity in deception here, especially after everything we’ve learned from Edward Snowden, who by the way should be given amnesty.

  5. The issue, to speak to the other commenters, is that Clapper didn’t “lie”. If he had simply said, “No, sir,” in response to the question, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” that would be easy to cast as a lie.

    But then Sen. Wyden, as a briefed member of the Senate Intelligence Committee, already knew the answer to that question, didn’t he? What’s shameful here isn’t Clapper’s response, it is a United States Senator trying to get the DNI to reveal properly-classified information about which the Intelligence Committees of both houses of Congress had been briefed every 60-90 days for literally years, and which was factually supported by explicit legislation (not just Section 215 of the PATRIOT Act, either, by the way) and by case law, up to and including a ruling by the Supreme Court itself. The fact that phone call metadata, as a “business record” provided to a third party, has no expectation of privacy and is not covered by the Fourth Amendment, has no gray area: it is the law of the land.

    This doesn’t mean the nature of communications hasn’t changed dramatically over the last three decades (the way our adversaries has changed dramatically over the last three decades, too); but that is irrelevant to the fact that it was explicitly legal according to existing case law and legislation — and not just post-9/11. I’m not saying it’s not *controversial*, but most of the controversy stems from a complete misunderstanding of NSA’s mission, purpose, and entire reason for being. If someone thinks NSA is “monitoring American’s phone calls (including the content!) illegally”, then is it really a surprise they’d be against it? Except that’s not what NSA is doing, at all.

    What NSA is doing is collecting the “haystack”, so to speak, and Americans are *not the target*! Furthermore, the layers of protections to even query the data are extensive: while the bulk collection happens under a blanket order — which is 100% in line with applicable case law and legislation, such as ECPA which tempered the SCOTUS ruling in Smith by saying “no person shall place a pen register without a court order” (which is exactly what the FISC order is), individual queries must serve a reasonable, articulable foreign intelligence need that must be individually demonstrated to FISC.

    Some people might say the data is there and “could be abused”, even if it isn’t now. Great — any government capability “could be abused”…shall we strip them all? Or only the ones we personally disagree with, without any regard for the way our system of government works, both from a fundamental perspective, and more particularly from a perspective of foreign intelligence collection? In a free society based on the rule of law, it cannot be the capability, but the LAW, that is paramount.

    So back to Clapper: when he said, “No, sir. Not wittingly,” that was not a lie. Because with this program, Americans are not the target…again, it’s the haystack that the “needles” are within, and without the whole haystack in the context of the purpose of this type of collection, you don’t have access to all of the needles. Some might say the same argument can be made about all communications content. No, it can’t, because the LAW says that to collect the communications content of a US Person anywhere on the globe requires an individualized warrant. That’s why we don’t do it. Not because it’s “too hard” or “would take up too much storage”. We don’t do it because the LAW says we don’t.

    But what of metadata collection? The highest court in the land said that metadata, as a “business record”, is fair game, and not covered by the Fourth Amendment. Should that change, given the nature of modern digital communications, and the government’s ability to exploit such data with technology? Perhaps. But Snowden’s leaks — to say nothing of the vast amounts of leaks that had nothing to do with Americans but everything to do with exclusively foreign cyber and SIGINT activities — are not the way to initiate this debate. Period.

    Clapper didn’t lie, and this is not some kind of a situation where “if Snowden should be prosecuted, so should Clapper.” What Snowden and Clapper did are not even in the same universe. Clappers only options were to: 1. reveal properly-classified information about a factually and explicitly legal program in open hearing, 2. tell Sen. Wyden that he could only provide that answer in a classified session (which would set the conspiracy theorists’ and government-is-out-to-get-me types’ heads spinning), or 3. exactly what he did: say, “No, sir. Not wittingly,” which is, as he said, the most truthful, or least untruthful, answer that could possibly be given.

    Americans are not the target of this or any other NSA collection program, period, unless they are supported by an individual court order for a specific and clear foreign intelligence need, which represents fewer than 60 people that count as US Persons — not even all of them American citizens — in the world. Aside from the metadata collection, I am baffled at the surprise expressed at the other programs that have been leaked, which reveal a foreign intelligence agency doing the EXACT JOB it is charged with.

    1. I can’t square what has come out in the Guardian and the New York Times, e.g. NYT 08/09/13, with your representation of what the National Security Agency has been doing.

      Your claim that NSA haystack-style collection of private data was properly classified is controversial at best, ludicrous at worst, but in any event is characteristic of the general acceptance of the classification system as a whole, which is the real problem. That system has zero credibility.

      On the law, you have completely ignored Judge Leon’s decision that the program is almost Orwellian and very likely unconstitutional. Does that decision matter? I suppose you would argue that it is contrary to law, period, and that Judge Pauley got it right. If so, I question your understanding of, or commitment to, rudimentary American values that the Fourth Amendment was supposed to protect but now seem the product of a bygone era.

      As Chris Hedges has just written, “Any state that has the capacity to monitor all its citizenry, any state that has the ability to snuff out factual public debate through control of information, any state that has the tools to instantly shut down all dissent is totalitarian.” The abuse under such a system that could happen is not a forecast, it has already happened, e.g.

      1. Ellen,

        Whether something is constitutional is a value and legal judgment to be made by the courts. Until Judge Leon’s ruling — which is out of step with the current law, Smith v Maryland, and three and a half decades of case law — there was no question whatsoever that metadata collection was not only explicitly lawful, but also constitutional. And even Judge Leon’s ruling says it is “likely” or “probably” unconstitutional, and only then because the nature of communications, and the government’s ability to exploit such collection via automated means, has changed dramatically since Smith. This is true. And again, Snowden’s leaks are NOT the way to have this debate, even if you believe that if not for Snowden this issue would not yet have been raised to the courts. There was no illegal behavior, no unconstitutional behavior. So you have a single judge whose ruling is out of step with all other law and case law, including a SCOTUS ruling, and you think that is gospel, but reject Judge Pauley’s ruling? Absurd. This sums up why the metadata program came into being:

        “We’re pretty aggressive within the law. As a professional, I’m troubled if I’m not using the full authority allowed by law.” – General Michael Hayden

      2. Also, the DEA example you bring up is NOT abuse. It is not illegal, nor does it represent abuse of any form. The exception in the SIGINT minimization procedures for things like discovery of international narcotics trafficking has existed for decades — long before 9/11, before the internet, before the rise of digital communications. These instances — which are vanishingly rare — mean that, yes, such information can be passed to another agency to be handled. Before you ask, “What’s to stop NSA from ‘accidentally’ discovering evidence of a crime and doing this for anything,” he exceptions are very specific — things like international terrorism and international narcotics trafficking — and don’t apply to just anything. The law is on the side of NSA in this example as well.

        Now for *actual* abuse? Yes, it happens, always has, and always will — in any organization, no matter what controls are in place. If perfection is the only standard that would be acceptable, we’ll never reach it. The egregious abuse that happened here is Snowden’s ignorant belief that he knows better, and that US intelligence capabilities should be laid bare for the world to see, while states like China and Russia and other adversaries operate with complete impunity and out of any public view or scrutiny.

    2. “…a United States Senator trying to get the DNI to reveal properly-classified information…”

      This suggests that some bureaucrat gets to decide what Congress may discuss. This is why congressional immunity exists, which was and still is an option for Senator Wyden.

  6. I agree w/ Merrill above, the Intel cmte should correct the record. And, seems to me federal public servants concealing these programs from the public violates their oath to defend the Constitution.

    Also agree w/ Merrill that Clapper’s knowledge, later admitted, that his answer was knowingly not true means he committed perjury under the law. And, as we the people are equal under the law according to our constitution, Clapper should suffer the consequences. Especially considering the signicance of his position and the programs.

    Steven, you said “Whether by design or not (almost certainly not).” What evidence or reason is there to believe Clapper wasn’t throwing the responsibility to correct the record onto the Intel committee? He had the questions days beforehand, and he certainly knew he could count on the leaders to defend secrecy.

    Clapper and all other US govt officials responsible for these unconsitutional domestic surveillance programs should be prosecuted for treason and other crimes. This would be enough to impeach Obama, but Congress is controlled by Establishment hacks.

    1. Steven Allgood,

      Do not censor my comment, like you did last time, please! It was in December 2013. I expressed my appreciation of the CIA spokesman’s pithy response to some rude inquiry or other, to go search on Google. The CIA is underappreciated, and I say that with all my heart. You always allow Ellen to comment, but you don’t treat me with equal respect. It is not fair.

      Next, Erik Larson said,

      “I agree w/ Merrill above…. Clapper and all other US govt officials responsible for these unconsitutional domestic surveillance programs should be prosecuted for treason and other crimes. This would be enough to impeach Obama, but Congress is controlled by Establishment hacks.”

      That should be “unconstitutional” and “Merrell”. More relevant, Steven, is that these heedless calls for mass prosecution of the director of national intelligence and large numbers of legislators, even cabinet members, for treason (and other crimes, as though treason isn’t the be all and end all, generally punishable in a most permanent way!) needs to stop, especially here. Those are the words of ignorance and anarchy, the bad traditional anarchy, not the nouveau anarcho-capitalist variety.

      I hold you to a higher standard, Steven Allgood, as well as George Mason University with whom you now seem to have allied yourself. Desperate times call for desperate measures, so if George Mason is supportive of you, who am I to criticize (I’m sorry for doing that in the past), but we are sliding down into dangerous territory with partisan screed lobbed in every public venue. The media is terrified e.g. the New York Times, who was censured for a lightly humorous political cartoon in their magazine, about Mrs. Clinton, last week. Yet there is verbiage slung everywhere that good Lyndon B. Johnson was a racist and should’ve been “prosecuted for war crimes”, along with Winston Churchill and Harry Truman. Words have power, and this is wrong to allege so carelessly. So-called progressive liberals are terrifyingly accusatory now. I can say this with impunity, as I am a Jewish woman, graduated with a degree in mathematics from Swarthmore College. I was not so fortunate as to have a Hillel during my time, only a Newman Center.

      Instead of screed, please encourage rational discourse such as that of Paul E. Merrell, J.D.? His language is clear, cogent and persuasive. PBCLiberal and Dave Schroeder are good too.

      Yours truly,

      Mrs. Lisa E. Wells nee Kesselman

      * That is my full name, in the interest of transparency. Yes, I am an impoverished widow, childless in the hinterlands. In the interest of good faith, don’t censor my comment, okay? I promise to behave myself more decorously in the future. Please don’t IP ban me from commenting.

  7. Re: Erik Larson’s comment that Clapper “had the questions days beforehand, and he certainly knew he could count on the leaders to defend secrecy,” Robert Litt’s letter to the Times after the Snowden op-ed:

    To the Editor:

    “Edward Snowden, Whistle-Blower” (editorial, Jan. 2) repeats the allegation that James R. Clapper Jr., the director of national intelligence, “lied” to Congress about the collection of bulk telephony metadata. As a witness to the relevant events and a participant in them, I know that allegation is not true.

    Senator Ron Wyden asked about collection of information on Americans during a lengthy and wide-ranging hearing on an entirely different subject. While his staff provided the question the day before, Mr. Clapper had not seen it. As a result, as Mr. Clapper has explained, he was surprised by the question and focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate.

    When we pointed out Mr. Clapper’s mistake to him, he was surprised and distressed. I spoke with a staffer for Senator Wyden several days later and told him that although Mr. Clapper recognized that his testimony was inaccurate, it could not be corrected publicly because the program involved was classified.

    This incident shows the difficulty of discussing classified information in an unclassified setting and the danger of inferring a person’s state of mind from extemporaneous answers given under pressure. Indeed, it would have been irrational for Mr. Clapper to lie at this hearing, since every member of the committee was already aware of the program.

    Robert S. Litt

    General Counsel

    Office of the Director of National Intelligence

    Washington, Jan. 3, 2014

  8. @ Dave Schroeder: “The fact that phone call metadata, as a “business record” provided to a third party, has no expectation of privacy and is not covered by the Fourth Amendment, has no gray area: it is the law of the land.”

    This point in the law is very gray indeed. You have missed that what constitutes a search or seizure under the Supreme Court’s jurisprudence is context-sensitive. Roaden v. Kentucky, 413 U. S. 496, 501 (1973) (“[a] seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material”); reaffirmed, Zurcher v. Stanford Daily, 436 US 547, 565 (1978).

    Smith v. Maryland, 442 US 735 (1979), was a case involving a pen register device being used to monitor the times of outgoing telephone calls from a particular single telephone and the numbers called. The Court held that because the telephone subscriber voluntarily made that information available to the telephone company, the subscriber had no reasonable expectation of privacy in the information intercepted by the pen register.

    However, only four years later, the Court specifically reserved for later decision whether Smith’s constitutional principles would apply to “dragnet” long-term law enforcement surveillance. United States v. Knotts, 460 US 276, 284-285 (1983) (“if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable”).

    And in 2012, the Court repeated its reservation U.S. v. Jones, 565 US ___, ___ n. 6, 132 S.Ct. 945 (2012) (“‘Knotts … reserved the question whether ‘different constitutional principles may be applicable’ to ‘dragnet-type law enforcement practices’ of the type that GPS tracking made possible here”). In that case, the Court unanimously found that an unlawful search had occurred when police attached a GPS tracker to a vehicle and tracked the vehicle’s location for four weeks. A portion of Justice Sotomayer’s concurrence deserves particular attention

    “In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441-442, 909 N. E. 2d 1195, 1199 (2009) (‘Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on’). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C. J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’ Illinois v. Lidster, 540 U. S. 419, 426 (2004).

    “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’ United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring).

    “I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. See Kyllo, 533 U. S., at 35, n. 2; ante, at 11 (leaving open the possibility that duplicating traditional surveillance ‘through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy’). …

    “More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (‘Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes’); see also Katz, 389 U. S., at 351-352 (‘[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected’).

    “Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion.”

    And in a separate opinion by Justice Alito, joined by justices Breyer, Ginsberg, and Kagan, also concurring in the result, he explained why he would have decided an unlawful search had occurred on grounds other than the trespass grounds relied upon by the 5-4 majority, saying first that “[i]in the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks— would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. …

    “To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.

    “Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281-282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. …”

    Together in the two concurrences, we have five justices (a majority) expressing deep concerns about the constitutionality of surreptitious long-term citizen metadata collection and mining. All five expressed concerns that advances in technology had obsoleted the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Four of those justices said that the line was clearly passed by four weeks of metadata collection.

    Judge Richard Leon took note of those concurrences in his searching opinion finding that the NSA call metadata program almost certainly violated the Fourth Amendment. Judge William Paulley did not. Judge Paulley played back the government’s version of the facts and its legal arguments relying on Smith v. Maryland and booted the case upstairs for the court of appeals or Supreme Court to decide.

    So I will respectfully disagree with your position that the law is settled in this area. It most assuredly is not. If the NSA call metadata program reaches the Supreme Court (it is more likely to be ended by Congress, in my estimation), the question before the Court will be whether the Fourth Amendment prohibits a government agency from gathering all call metadata on virtually all U.S. residents, retain that data for five years, and mine that data for intelligence and law enforcement purposes.

    Given that majorities in Knott and in Jones have expressly reserved judgment on the applicability of the Smith v. Maryland principles in a “dragnet” situation, I doubt that a 34-year-old opinion involving a pen register being placed on a single phone line for a short period will be given much weight in deciding whether the U.S.A. steps into an Orwellian future. After all, the nine justices have learned in the last year that their call metadata is being collected and searched too.

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