Why the NSA data seizures are unconstitutional.

• Author: Barnett, Randy
• Position: National Security Agency

Due to the unauthorized leaks of classified information, we have come to learn that the National Security Agency (NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am not going to get into the details of these programs. Instead, I will limit my focus to what I consider to be the serious constitutional problem with any such program, regardless of the details: the fact that the NSA is demanding that private companies, with which virtually all Americans contract to provide their voice communications, turn over the records of every phone call that is made on their systems. (1) This metadata is then stored on NSA super computers for later analysis. (2)

In this article, I am not going to address the legality of this program under existing statutes. Jim Harper of the Cato Institute and I have argued in an amicus brief that the NSA data collection program is illegal because it is not authorized by Section 215 of the Foreign Intelligence and Surveillance Act as it was modified by the USA PATRIOT Act. (3)

Section 215 of the PATRIOT Act allows the Foreign Intelligence Surveillance Court (FISC) to issue orders requiring the production of tangible things upon satisfactory application by the FBI. The statutory language specifies that an application for a Section 215 order must include "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation...." (4) Because we maintain that Section 215 orders must be "relevant" to an already existing investigation, in our brief we contended that orders for the seizure of bulk metadata on every American for future analysis to uncover evidence of wrong doing are not authorized by the statute and are therefore illegal. (5)

So far, however, the two federal district court judges who have considered challenges to the program in the Southern District of New York and in the District of Columbia have both held that, because Congress has not waived its sovereign immunity to allow the legality of Section 215 orders to be challenged in federal court, federal courts lack jurisdiction to hear a statutory challenge. (6) For this reason, this matter may need to be addressed by Congress. But these same two judges also held that citizens have standing to bring constitutional challenges to the collection of the telephone companies' records of their phone calls. (7) So my focus here will be limited to the constitutional issue raised by these blanket seizures of the private data on all Americans.

Although the only surveillance program that has been challenged thus far concerns phone records, (8) the principle offered to support this data seizure applies as well to all other business records of our dealings, including our credit card transactions. Indeed, in upholding the constitutionality of the program, Judge William Pauley of the Southern District of New York cited cases that held that "an individual has no constitutionally protected expectation of privacy" in bank records, records given to an accountant, subscriber information provided to an internet service provider, and information from a home computer that is transmitted over the Internet or by email. (9) Imagine the chilling effect on liberty if everyone knew that the government is in possession of all this data about their private transactions on its super computers. The relationship between the citizens of the United States and their supposed agents or servants in government would be fundamentally reversed, turning We the People into mere subjects of our rulers.

So there is a lot more at stake here than just this particular bulk data seizure program. With the challenge to the Affordable Care Act, we not only wanted to stop Obamacare from being implemented--which sadly we failed to do--we also wanted to defeat the limitless constitutional arguments that were being offered in its defense. In this effort, I am pleased to say we succeeded. (10) Now, we need to think very hard about whether these blanket data seizure programs comport with the Fourth Amendment before, not after, the government decides it needs to seize data about every facet of our personal lives.

1. BLANKET DATA SEIZURES ARE MODERN DAY GENERAL WARRANTS

   The Fourth Amendment has two parts. First, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (11) And second, "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." (12)

   We know that the Fourth Amendment was adopted to prevent, among other things, what were called "general" or nonspecific warrants, which were blanket authorizations for British authorities to search for contraband wherever they might choose. In response to this abuse, the Fourth Amendment requires the things to be searched or seized under a warrant to be described "particularly." (13)

   With this in mind, the problem with the data collection orders issued to Verizon and other telecommunications companies becomes obvious. These orders require the company to produce "on an ongoing daily basis ... all call detail records." (14) Because they are not "particular," such orders are the modern incarnation of the general warrants issued by the Crown. As with general warrants, blanket seizure programs subject the private information of innocent people to the risk of searches and exposure, without their knowledge and with no realistic prospect of a remedy.

   It is also worth remembering that both the English Whigs and the American Founding generation thought that the seizure of papers for later search was an abuse distinct from, but equivalent to, the use of general search warrants--which is why "papers" was included in the Fourth Amendment in addition to "effects" or personal property. (15) As University of San Diego School of Law Professor Donald Dripps has shown in a recent article, "at the heart of Whig opposition to seizing papers was the belief that any search of papers, even for a specific criminal item, was a general search. It followed that any warrant to sift through documents is a general warrant, even if it is specific to the location of the trove and the item to be seized." (16) The seizure of one's papers for later perusal was thought to be closely akin to searching through a person's mind to assess his thoughts. Seize first, then search for evidence of criminality, was considered to be the epitome of an abuse of power. (17) Putting such information permanently in the hands of government for future use is an invitation to restrict the liberties of the people whenever such restrictions become politically popular.

   For example, gun rights advocates have long opposed firearms registration because the brute fact that the government does not know where the guns are makes it much more difficult to confiscate them in the future. (18) Not only does this illustrate the practical danger to constitutional liberties posed by the government simply possessing vast information about our activities and associations for later search. The trove of phone and email metadata to which the NSA now has access would make gun registration unnecessary as the government would already possess enough information to identify most gun owners. (19)

   1. Problems with the Constitutional Justifications of These Programs

      So how have these programs been justified as constitutional? The answer lies in two key Supreme Court cases. The first is the 1967 case of Katz v. United States, (20) which concerned the power of law enforcement to wiretap a public phone booth. (21) Katz is taken to stand for the proposition that the Fourth Amendment protects only communications about which people have a "reasonable expectation[] of privacy." (22) Because people reasonably expect their conversations in a phone booth to be private, their conversations cannot be wire-tapped by law enforcement without first obtaining a search warrant. (23) Keep that phrase "reasonable expectation of privacy" in mind, because it does a lot of work in modern constitutional doctrine.

      The second key case is Smith v. Maryland, (24) decided in 1979. Smith applied what is called the "third-party doctrine" to phone call information in the possession of phone companies. (25) In Smith, the Court reasoned that individual phone users have no reasonable expectation of privacy in the records of their phone calls--the numbers called and the duration of the calls--since phone users must know that a third party, the phone company itself, has access to this information. The Court therefore held that law enforcement...