Spying on Americans: at What Point Does the Nsa's Collection and Searching of Metadata Violate the Fourth Amendment?

• Jurisdiction: United States,Federal
• Publication year: 2014
• Citation: Vol. 10 No. 1

Washington Journal of Law, Technology and Arts Volume 10, Issue 1 Summer 2014

Spying On Americans: At What Point Does The NSA's Collection and Searching of Metadata Violate The Fourth Amendment?

Elizabeth Atkins(fn* )© Elizabeth Atkins

ABSTRACT

Edward Snowden became a household name on June 5, 2013, when he leaked highly classified documents revealing that the American Government was spying on its citizens. The information exposed that the National Security Agency (NSA) collected millions of American's metadata through forced cooperation with telephone-service providers. Metadata contains sensitive and private information about a person's life. When collected and searched, metadata can reveal a portrait of a person's intimate activities amounting to a violation of one's reasonable expectation of privacy.

This Article suggests changing the current standard allowing the NSA to collect and search metadata under Section 215 of the USA PATRIOT Act. The threshold needed to obtain and search a person's metadata should be raised from the current standard of reasonable and articulable suspicion to a higher burden of probable cause. Since Mr. Snowden's unauthorized disclosure, there has been public outcry regarding metadata collection. In response, President Obama issued a Public Policy Directive limiting the scope of metadata that the NSA can collect. Additionally, Congress has proposed legislation changing how the NSA collects, stores, and searches metadata. The bills, however, keep intact the minimum reasonable and articulable standard necessary to search metadata.

The breadth of information that can be gleaned from metadata makes it intrusive and subjects it to the Fourth Amendment. Yet gathering and searching metadata can be a valuable tool in the fight against terrorism and protecting American citizens from future attacks. Requiring the threshold to be raised to a probable cause determination adequately balances privacy interests against national security interests.

TABLE OF CONTENTS

Introduction .................................................................................... 53

I. The History of Modern Surveillance Developed under the Fourth Amendment ................................................................. 57

A. The Court's Development of a Right to Privacy in Emerging Technology ..................................................... 58

1. Olmstead v. United States: Establishing Privacy as a Trespassory Doctrine ................................................ 59

2. Katz v. United States: Overruling Olmstead and Paving the Way toward Non-Trespassory Privacy Rights ....................................................................... 60

3. United States v. Jones: Foreshadowing Modern Non-Trespassory Privacy Concerns ................................. 61

B. Smith v. Maryland: Developing the Third-Party Doctrine ........................................................................... 62

II. Enactment of the USA PATRIOT Act ................................... 65

A. The Foreign Intelligence Surveillance Act of 1978: Wiretapping and Foreign Intelligence Surveillance ........ 65

B. September 11, 2001, and the USA PATRIOT Act ............ 66

C. The Metadata Collection Program is Created under Section 215 in Two FISC Orders ................................................. 67

1. The Primary Order to Collect Metadata ................... 68

2. The Secondary Order Directing Verizon to Submit Metadata ................................................................... 69

III. Current Challenges to the Metadata Collection Program Authorized by Section 215 of the USA PATRIOT Act ......... 70

A. Klayman v. Obama: Section 215 is Likely to be Unconstitutional .............................................................. 70

B. ACLU v. Clapper: Section 215 is Constitutional under the Third-Party Doctrine ....................................................... 71

C. The President's Review Group Report Recommends Terminating Metadata Collection due to Privacy Concerns .......................................................................... 72

D. President Obama's Proposed Changes and Pending Congressional Legislation ............................................... 73

IV. The Standard to Search Metadata should be Raised to a Probable Cause Standard because of Vast Privacy Concerns ................................................................................. 74

A. The Reasonable Articulable Suspicion Standard should be Updated because It Fails to Take Into Account the Reasonable Expectation of Privacy that should be Associated with Metadata ................................................ 76

1. Metadata Reveals Highly Personal and Sensitive Information Subject to Fourth Amendment Protection ................................................................. 77

2. The Third-Party Doctrine should be Updated in Light of Modern Technology ............................................. 81

B. The Actions Proposed by the Government are Ineffective because They Maintain the Lower "Reasonable and Articulable Suspicion" Standard ..................................... 84

Conclusion ..................................................................................... 87

INTRODUCTION

"Metadata is what allows an actual enumerated understanding, a precise record of all the private activities in all of our lives. It shows our associations, our political affiliations and our actual activities."(fn1)

On June 5, 2013, Edward Snowden shocked the world when he revealed highly classified National Security Agency (NSA) documents to The Guardian, a British daily newspaper.(fn2) These documents exposed the Foreign Intelligence Surveillance Court's (FISC) secret order instructing Verizon to collect metadata from all telephone calls within the United States and abroad.(fn3) Snowden disclosed that the NSA was spying on American citizens through the mass collection of "telephony metadata," with Congressional and Presidential authorization.(fn4) Immediately thereafter, President Obama and Senator Diane Feinstein began downplaying the Orwellian nature of the program, notably justifying it by stating: "it's just metadata."(fn5)

However, the mass collection of metadata was troubling to many Americans because the NSA was not only spying on those believed to be associated with Al-Qaida but also on messages between Americans without ties to suspected terrorism.(fn6) Even more disturbing was the massive amount of sensitive and personal information that could be gathered from metadata in and of itself.(fn7) As metadata became defined in the public sphere, it became clear to Americans and human rights organizations alike that it's not just metadata.

The NSA's sweeping surveillance was legalized when Congress passed the USA PATRIOT Act, arguably the most expansive piece of legislation in America's history.(fn8) Post-9/11, the USA PATRIOT Act allowed the government to use surveillance and technology more aggressively than ever before in an attempt to prevent future attacks.(fn9)

Congress originally authorized metadata collection under Section 215 of the Act.(fn10) Section 215 was amended in the USA PATRIOT Improvement and Reauthorization Act of 2005, which required the government to provide "a statement of facts showing that there are reasonable grounds to believe that the tangible objects sought are relevant . . . against international terrorism . . . ."(fn11) Section 215 expanded the government's ability to compel the production of "any tangible things including books, records, papers, documents, and other items."(fn12)

Under this expanded program, the government began collecting United States citizens' call records without warrants. This program is unprecedented because it targeted not only phone calls made to suspects living outside of the country but call records between American citizens themselves. The government systematically collected and searched sensitive information on its own citizens without meeting the constitutional constraints of the Fourth Amendment. In most cases, the Fourth Amendment imposes a warrant requirement to perform a search.(fn13) Prior to performing a search on a constitutionally protected area, a person must first have probable cause and then obtain a warrant from a judge.(fn14) The government's failure to obtain a warrant before searching a person's metadata records violates that person's reasonable expectation of privacy.(fn15) Even though government officials, including President Obama, have reassured American citizens that they are not listening to the content of their calls, the metadata of these calls can still reveal an illuminating look at the callers' private lives.

For example, consider Person X, an American citizen born in the United States. Person X is a college-educated, 26-year-old program developer who just began law school. He has no association to terrorist activity. Yet every day the NSA collects his phone records and stores all of his metadata in a database waiting to be queried.

Imagine one day the NSA suspects that Person X is associated with a terrorist organization. Every phone number he has contacted within the past five years is collected. The information the government could collect about...