It's possible to distinguish Smith as inapposite without throwing away stare decisis. The term of surveillance (forever), the breadth of surveillance (almost ev

It's possible to distinguish Smith as inapposite without throwing away stare decisis. The term of surveillance (forever), the breadth of surveillance (almost every American), and the greater privacy intrusion (because of cell phones' ubiquity and because we use them more frequently) all make NSA surveillance very different from Smith. And as far as the length of surveillance goes, Kerr's pointed out that 5 justices in Jones (the 2012 GPS case) signed onto the idea that long-term GPS monitoring of a car counts as a search even if short-term monitoring does not.