NSA surveillance and interference with citizens' property rights.

• Author: Woodburn, Nichole
• Position: National Security Agency

INTRODUCTION

In the dissenting opinion of Olmstead v. United States, Justice Brandeis discussed the far-reaching consequences of the government's warrantless wiretapping. (1) That opinion, written nearly a century ago, can today be described as prophetic, as the government has indeed utilized advances in technology to increase the scope of its invasions into citizens' domains. (2) As the Snowden leaks revealed in 2013, the day has come to pass where the government may, without a warrant, collect the digital communications of its citizens, thereby interfering with citizens' property rights.

On June 6, 2013, the first leaks from Edward Snowden were published, revealing a governmental program designed to surveil domestic communications without warrants, referred to as the "Section 215 telephony metadata program." (3) Prior to the advent of this news, the American citizenry was aware only of the government's warrantless collection of communication of those with suspected ties to Al Qaeda. (4) Public reaction to the news of the warrantless surveillance was both powerful and negative. (5) Seven months after the initial Snowden leaks, sixty-three percent of Americans stated that they were dissatisfied with the government's surveillance of U.S. citizens. (6) The National Security Administration (NSA) surveillance programs were listed among the top ten concerns of Americans at the beginning of 2014. (7) It is the opinion of this paper that the strong reaction Americans felt was related to a perceived invasion of their right to exclude embedded in their property interest in their digital communications.

In a time when nearly all communication has become digital and the internet has become a necessary means of navigating modern life, the ease of access to these communications has increased. Over that same timespan, the concept of property has also undergone changes, making it more difficult to identify what is "property" with all the rights that title entails. (8) Additionally, the Fourth Amendment has changed shape in response to advents of technology. (9) Where the Fourth Amendment protects "persons, houses, papers, and effects," the modern analogy could be emails or text messages. (10)

It is now important to distinguish between the different NSA programs and identify which specific NS A program this paper seeks to analyze. This paper seeks to analyze whether citizens have a property interest in the telephony metadata which were turned over to the government without notification to communicants or the public at large and were not the subject of individualized warrants. Section 215 of the Patriot Act initiated this program. Many communications entities obtained Foreign Intelligence Surveillance Act (FISA) warrants. However, the first company and the only warrant the public has access to is the Verizon Wireless order imposing a duty upon Verizon to turn over all metadata details, including the length of a call; the number from which the call was made; the phone number called; and, most controversially, the routing information, which can "sometimes (although not always) convey information about a caller's general location." (11)

The telephony metadata program is unique not only in its difference from the information collected but also in the procedure by which it is obtained. There are other controversial NSA programs also deserving of an analysis; however, the biggest difference between the telephony metadata program and any others (at least of those we know of) is the telephony metadata program involved a dragnet of information based upon single orders, the merits of which will be discussed below. Other programs, such as the controversial program PRISM, authorize the collection of the contents of the call; the telephony metadata program does not. (12) This paper focuses solely on the telephony metadata program because it is this program that is most attenuated from the warrant ordering the collection of the things sought. Because property interference by the government is judged via the Fourth Amendment, this paper will first analyze whether there remains a property interest underlying the Fourth Amendment.

It is the opinion of this paper that the metadata the government has collected, surveilled, and intruded into without a warrant is the property of the citizens from whom it was collected. This paper seeks to prove citizens' property interests in such communications through an investigation into the property interest protected by the Fourth Amendment and an examination of the government's treatment of analogous non-digital communications, which are considered the property of those intended by the communicants. This paper will then analyze whether the government has violated its citizens' private property rights by collecting citizens' digital communications. Finally, this paper will discuss the injunction preventing the continuation of the program and the current condition of the telephony metadata program.

PART I.

Property Rights and the Fourth Amendment

Most would regard this issue solely as a potential Fourth Amendment violation rather than a violation of citizens' property interests. However, the two classifications are related. The Fourth Amendment is a codification of property law as against the government. (13) Since the Bill of Rights was passed, the Fourth Amendment has sought to protect the private property of American citizens from the government. (14)

SECTION A.

Historical Link between Property Rights and the Fourth Amendment

The authors of the Bill of Rights did not invent the Fourth Amendment. Rather, it was adopted from its English counterpart. (15) The English case Entick v. Carrington discusses citizens' property interests against the government's search and seizure abilities:

[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. The [government] have no right to avail themselves of the usage of these warrants since the Revolution ... we can safely say there is no law in this country to justify the [government] in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have. (16) The Fourth Amendment was written with this same sentiment. This case demonstrates that the government's search and seizure abilities are meant to protect property rights. Specifically, the search and seizure abilities express the government's respect for the property owner's right of exclusion.

The United States Supreme Court later cited to Entick in Boyd v. United States. (17) There, the Court referred to Lord Camden's decision in Entick as a "great judgment" and one "of the landmarks of English liberty." (18) The Court went on to describe how Entick influenced our Constitution:

As every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it as the true and ultimate expression of constitutional law, it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures. (19) The Court described the Entick decision as "the very essence of constitutional liberty and security," demonstrating the Court's intention to understand the Fourth Amendment as protecting the private property of American citizens." (20)

SECTION B.

Dual-Theories for Fourth Amendment Analyses

Today there exists both a privacy-based analysis and a "property-based" analysis. Because it is the argument of this paper that both analyses protect citizens' property interests, the "property-based" analysis will be hereafter referred to as a "trespass-based" analysis.

SECTION C.

Trespass-Based Theory

As stated above, Boyd utilized the Entick reasoning to support property rights in its Fourth Amendment analysis. (21) However, because of the manner in which Boyd supported the defendant's property rights, Boyd only protected certain items of private property from government search or seizure. (22) The case involved a statute requiring the compulsory production of private papers. (23) Boyd found this type of statute to be violative of both the Fifth and Fourth Amendments. (24) Boyd expressed a hierarchy of private property and indicated which tangible items were to be protected, and which were subject to searches. (25) This case is perceived as a very strong protection of property rights. (26) Boyd paved the way for the trespass-based theory in Olmstead, which differed from the Boyd specified-item analysis and created the trespass-based analysis.

Olmstead analyzed a potential Fourth Amendment violation by determining whether the government had physically trespassed upon the defendant's Fourth Amendment-protected-areas to decide whether there had been a constitutional violation. Olmstead argued that because "[t]he insertions were made without trespass upon the property of the defendants," there was no "search" for the purposes of the Fourth Amendment. (27) This case was later interpreted to be protecting the places which could not be searched. (28) The Court opted for a literal interpretation of the Fourth Amendment, and protected four specific areas: houses, persons, papers, and effects, utilizing the exact language of the Fourth Amendment. (29) This became known as the trespass-based theory of Fourth Amendment analysis.

Olmstead further limited Fourth Amendment violations to the collection of only tangible things. (30) The case dealt with wiretapping. (31) The Court found that there was no Fourth Amendment violation both because the wiretapping had taken place outside the defendant's home and because...