Keeping up with the Joneses: the NSA's bulk telephony metadata program and its relationship with the Katz privacy doctrine in the 21st century.

• Author: Liston, Audrey
• Position: National Security Agency

1. THE SILENT TAP HEARD 'ROUND THE WORLD

   In June of 2013, Edward Snowden stirred a lively national and global debate when The Washington Post and the British newspaper The Guardian published stories that the National Security Administration (NSA) engaged in the bulk collection and analysis of phone-record metadata of United States citizens as part of its foreign intelligence and counter-terrorism program. (1) The news articles disclosed that the Foreign Intelligence Surveillance Court (FISC) had issued an order compelling Verizon Business Network Services to produce for the NSA, on an ongoing daily basis, all call detail records, or telephony metadata, created by Verizon for communications (1) between the United States and abroad; or (2) wholly within the United States, including local telephone calls. (2) The order showed that, under the Obama administration, the communication records of millions of U.S. citizens were, and still are, being collected indiscriminately and in bulk--regardless of whether citizens are suspected of any wrongdoing. (3)

   The Government confirmed the authenticity of the FISC order. (4) Moreover, the Government acknowledged the existence of a program under which the FBI obtains orders from the FISC directing certain telecommunications service providers to produce for the NSA, on a daily basis, electronic copies of call detail records. (5) Media reports soon began to reveal other Government surveillance programs. One such program involves the Government's collection of Internet data pursuant to a program called "PRISM." (6)

   Since the story broke, two courts have ruled on the issue. The first case was Klayman v. Obama. (7) The second was American Civil Liberties Union v. Clapper. (8) The courts reached different conclusions. The court in Klayman held that the NSA's metadata collection program was unconstitutional. (9) The court in Clapper held that the program was lawful. (10)

   The issue thus arises: Do citizens have a reason to be upset by the NSA's bulk collection of phone-record metadata? Is it the "new norm" to expect our telecommunications service providers to "team up" with our Government for an intelligence-gathering operation? To answer this, we need to look at the ever-changing definition of what "reasonable" is.

2. THE BREECH BIRTH OF PRIVACY

   The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (11) The Amendment was ratified in 1791 and was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colomes. It was intended to protect "the sanctity of a man's home and the privacies of life" from searches under indiscriminate, general authority. (13) The Fourth Amendment lists specific guarantees: persons, houses, papers, and effects. While this may seem clear-cut, jurisprudence surrounding the Fourth Amendment has been anything but straightforward. From Terry v. Ohio onward, the ultimate touchstone of the Fourth Amendment has been reasonableness. (14)

   The Fourth Amendment has two clauses, the Warrant Clause and the Reasonableness Clause. However, there is tension between the two clauses. There are three principle views interpreting the relationship, or lack thereof, between these two clauses. Subscribers to the first of these views interpret the Warrant Clause as pertaining only to general warrants, not "usual" criminal warrants. (15) Thus, neither clause absolutely requires a warrant to conduct a search or seizure. (16) Under the second view, the Warrant Clause is seen as a stand-alone clause, apart from the Reasonableness Clause. (17) The difference between the first view and the second view is that, under the latter view, the warrant is seen as inapplicable to criminal proceedings. Those interpreting the Fourth Amendment under the third view believe that the Warrant Clause does not apply in some way, in one form or another, to the Reasonableness Clause. (18)

   The third view of the two clauses is the current, prevailing view to the so-called conjunctive theory. The conjunctive theory defines the procedural attributes of reasonable searches and seizures under the Fourth Amendment. (19) Such procedural attributes include that a search or seizure is procedurally reasonable if it is authorized by a valid and properly executed warrant. (20) However, this view recognizes that many searches and seizures are justified by a combination of probable cause and an exception to the warrant requirement. (21) Most of these exceptions rest upon some kind of exigency. (22) Thus, the "warrant preference model" is preferred but not absolutely necessary. (23) Therefore, the conjunctive theory is seen as interpreting the Reasonableness Clause through the Warrant Clause.

   The case that kicked-off Fourth Amendment jurisprudence was Boyd v. United States. (24) That case dealt with the issue of whether the government can compel the production of an accused's private papers to use as evidence against him. (25) The Supreme Court held that such compulsion was violative of the Fourth Amendment. (26) The Court reasoned that the government has no interest in a citizen's personal papers, so allowing such evidence would, in effect, compel the accused to become a witness against himself. (27)

   Originally, the Fourth Amendment's emphasis rested on places (i.e., property). (28) This emphasis was first announced in Olmstead v. United States. (29) Unbeknownst to the defendants, officers used a wiretap to intercept telephone calls between the defendants and their co-conspirators. (30) Taps were placed along the ordinary telephone lines from the residences of the defendants and from the chief office. (31) The crucial fact of Olmstead was that the wiretaps were placed without trespassing upon any of the defendants' properties. (32) For the chief office, the wiretaps were placed in the basement of the building. (33) For the house lines, the wiretaps were placed in the neighboring streets. (34) The Supreme Court held that the Fourth Amendment was not violated because the wiretaps were "non-trespassory." (35) In so holding, the Court announced that the Constitution protects only "things." (36) Since the officers tapped the lines without interfering with the defendants' "things," there was no constitutional violation. (37)

   Taking a more ethereal approach, Justice Brandeis dissent ed, stressing the right of individuals to be left alone. (38) Contrasting the tap of a phone line with tampering with an individual's mail, Justice Brandeis stated that the "evil incident to invasion of privacy" of the telephone is far greater than that involved in the latter. (39) He reasoned that the privacy of the individuals at both ends of the line is invaded whenever a telephone line is tapped. (40) Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. (41) Brandeis concluded by emphasizing that the Framers of the Fourth Amendment conferred, as against the government, the right to be left alone--the most comprehensive of rights and the right most valued by civilized man. (42) "To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever means employed, must be deemed a violation of the Fourth Amendment." (43)

   The Court increasingly began to recognize privacy rights as in Warden, Md. Penitentiary v. Hayden. (44) In that case, police searched the defendant's home and seized items of the defendant's clothing found in the washing machine as evidence that he committed the crime charged. (45) That evidence was later admitted and used as the basis for his conviction. (46) The Court held that the Fourth Amendment was not violated. (47) The Court stated that it had increasingly discarded the functional and procedural barriers of the Fourth Amendment's protections that rested on property concepts. It reasoned that officers could reasonably believe that the clothing found would aid in the identification of the culprit. (49) Therefore, the search was reasonable. (50)

   The watershed case for Fourth Amendment "reasonableness" was Katz v. United States in which police officers attached an electronic listening device to the outside of a telephone booth where the defendant was engaged in a number of telephone conversations. (51) The police failed to obtain a warrant for the wiretap. (52) The Court held that there was a Fourth Amendment violation under a new doctrine. (53) Originally, the test for a Fourth Amendment search was whether there had been a physical intrusion--a trespass--into a constitutionally protected area, like a house or a person's belongings. (54) The Court announced that a physical intrusion was not the only way that a Fourth Amendment search could occur. (55) The new inquiry looked at whether the defendant had a reasonable expectation of privacy. (56) The Court based its new inquiry on the advent of modern technology that allows the government to electronically intercept conversations without physical intrusion into an enclosure. (57)

   In Katz, the Court found that the defendant did have a reasonable expectation of privacy.' Although the telephone booth was made of glass so that the defendant's actions were knowingly exposed to the public, the defendant was trying to protect his conversations from the public. (59) He sought to protect his conversations by shutting the door to the telephone booth. (60) Thus, one who enters a telephone booth is entitled to assume that his conversation is not being intercepted. (61) After Katz, the Fourth Amendment now protects individuals from intrusion into the areas of their lives which they...