But, as the Court acknowledges, there is an obvious distinction between Smith and the Bush/Obama mass surveillance program. In Smith, the government was obtaining a few dialed telephone numbers of one person suspected of a crime. Here, the government obtained millions of telephone numbers of millions of people suspected of no crime. The court then dismisses this seemingly powerful distinction by citing one of its own secret opinions, whose name is redacted. “When one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”

And that’s it. That’s the bulk of the analysis distinguishing a limited search conducted with individualized suspicion to an unlimited hoovering of every telephone number, foreign and domestic, in and out of the United States. Even on its face, the distinction appears unpersuasive, since mass searches conducted without any suspicion seem to be textbook examples of the “general warrants” that the Framers of the Fourth Amendment meant to prohibit. But in addition to failing to engage this objection, Judge Eagan also fails to cite cases decided since 1979—including, most significantly, the Jones case involving Global Positioning System Surveillance, in which five justices suggested that ubiquitous, long-term surveillance does require a warrant when the aggregation of massive amounts of information can be used to reconstruct an individual’s private activity.(By contrast, Justice Scalia, who has been a strong defender of the Fourth Amendment, said that he considers the Court’s test for evaluating non-property based invasions of privacy to be “a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage.”)