The judge next purported to distinguish Smith as merely deciding that the installation of a pen register did not constitute a “search” under the Fourth Amendment. (A pen register is a device attached to a phone line that records numbers dialed, numbers dialing in, and the duration of calls.) This hair-splitting gets him nowhere: what made the installation not a search was the fact that there was no trespass on the target’s property and no expectation of privacy in metadata. Exactly the situation obtains in the NSA case.

Finally, unable to pound the law, Judge Leon pounded the table. He posed a rhetorical question that surely wowed them at the New York Times but won’t sway a conscientious appellate court:

When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.

Actually, the answer, unfortunately for Judge Leon, is when the Supreme Court says so. And if you think I’m wrong about that, imagine what our friends at the Times would say if a district judge instead asked:

When do present-day circumstances – the evolution of medicine’s life-preserving technology, our knowledge of fetal development and fetal pain, and the increasingly obvious humanity of the unborn child from the earliest stages – become so thoroughly unlike those considered by the Supreme Court forty years ago that a precedent like Roe simply does not apply?

Somehow, I suspect the judge posing that question would not be a candidate for this month’s Law Journal centerfold.

Conclusion

The viability of the NSA’s metadata program hinges on questions of policy, not law. Does it materially improve our security from terrorist attacks? Even if it does, should a government that notoriously abuses its powers be trusted with this one – are there in place enough effective safeguards, independent of the executive branch, that we should tolerate the immense potential for abuse?

I happen to believe the answer to both questions is yes, but that is beside the point. The Obama administration has failed to give compelling, affirmative answers to these questions. Without effective presidential leadership that inspires public confidence and assuages public fears of governmental abuse, the program is likely to be neutered. If that happens, it will be tragic – we will be much more vulnerable to attack and we will have achieved very little in the way of real privacy protection. But at least it will be our choice – Congress and the president legitimately changing the law to reflect public sentiment.

That is the responsible, accountable way to change the law. Asking the courts to do our heavy lifting for us by rewriting the Constitution is not.