Hit & Run

What Is It About the Fourth Amendment's "Individualized Suspicion" That the NSA, Obama, and Congress Just Don't Get?


Credit: Andresr: Dreamstime

As all the world now knows, Verizon (and undoubtedly other telephone companies) has been handing over the calling data of millions of its subscribers to the U.S. National Security Agency pursuant to a sweeping court order from the supersecret Foreign Intelligence Surveillance Court. 

I am no constitutional scholar, but I had some vague notion the Fourth Amendment forbids dragnet searches by government officials. The just-the-facts-ma'am jurisprudence website, the Legal Information Institute run by Cornell University seems to agree:

Law enforcement may only conduct a search if individualized suspicion (emphasis added) motivates the search. The Fourth Amendment prohibits generalized searches (emphasis added), unless extraordinary circumstances place the general public in danger.

Maybe it's just me, but I think it's pretty hard to get more generalized than snooping every telephone call that citizens make. And considering that your chances of dying in a terrorist attack is somewhere around 1 in 20 million, it's ridiculous to argue that such a massive spying operation is justified by some kind of extraordinary circumstances that are placing the general public in danger.

In February, the U.S. Supreme Court ruled that the American Civil Liberties Union and others could not challenge NSA eavesdropping because they couldn't show that they had actually been targeted by the agency. With respect to the limits on government intrusion that the Fourth Amendment affords American citizens, Cornell's Legal Information Institute further notes:

To sue regarding an alleged Fourth Amendment violation, the plaintiff must have standing. Standing with respect to Fourth Amendment violations requires that the plaintiff have had a legitimate expectation of privacy at the searched location. A legitimate expectation of privacy must meet both the subjective and objective tests of reasonableness. The subjective test requires that the plaintiff actually and genuinely expected privacy, and the objective test requires that given the circumstances, a reasonable person in the same or a similar situation would have expected privacy as well.

Given what we now know about the breadth of the NSA spying, I think that the ACLU will have little problem in showing that they do now have standing to challenge this immense violation of our constitutional rights to privacy. I am not a Verizon subscriber, but if it turns out that AT&T also handed over phone records to federal spooks, I would be happy to serve as a respondent in an upcoming lawsuit. Just saying.

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  1. Count me in, as a Sprint subscriber.

  2. The subjective test requires that the plaintiff actually and genuinely expected privacy...

    If I was the government I would be arguing that, after what we've been caught doing, who now genuinely expects they have any privacy from us?

    1. I believe all they have to do is argue that since you know another party has this info (i.e., your phone company), you've already waived any expectation of privacy.

      1. That's not correct. I not only expect the phone company to keep my information private, they're bound to do so by law and likely their own published policies. The exceptions are usually for, among other things, valid warrants.

        1. However, precedent says otherwise, because you have shared that information with a third party, that third party can share said information 'freely'.

          Your only redress would be suit for breech of contract - until there was a protection thrown in to close that loophole.

          1. If I intend to share information with one party and that party only, it's not a "public" sharing. If I send an e-mail to one person and that person keeps it private, the government can't go grab it without a warrant, claiming that it's public.

            Whether I have a cause of action against the person or entity that shares my private information is another matter, but my expectation is clearly that the information will be kept confidential, except in certain situations.

            On top of that, there are legal requirements on telecommunications providers, I believe, that require them to protect consumer privacy.

            1. Exactly PL
              saying that you shared something with someone over the phone or the internet now makes it public then by extension all my snail mail is now shared with the public and even my conversation with my wife in bed can now be considered public because I shared it with someone. By my reading the Constitution protects my private snail mails and conversations with anyone so by further extension that privacy is expected to be with my phone, email or tweets or anything.

              1. There are special cases. For instance, communicating privileged information to third parties can waive the privilege.

      2. you've already waived any expectation of privacy.

        Maybe true; however, for a supposedly "free" country, we should be able to expect Dear Ruler to not actively datamine our lives every second of every day.

    2. , after what we've been caught doing, who now genuinely expects they have any privacy from us?

      At this point, what difference does it make?


  3. If the 2A gives the government the right to bear arms with the word "militia," then wouldn't it stand to reason that the 4A grants the government a right to privacy?

    1. "The government" being "us", of course.

    2. That's my favorite. I love how anti-gun crowd uses one definition of militia when the authors used another.

      1. The anti-constitution crowd does that with a lot of words.

  4. The standing requirement is bullshit. That way they can pretend there are laws against this, and that those laws are somehow enforecable. The reality is that the courts won't take your case unless you can prove you've been personally wronged, and the executive branch won't tell you whether you've been wronged because that's classified.

    1. T: That's why leaks are good.

    2. It's appalling how often the courts find some way to avoid ruling that the government has done something wrong. I'm not sure government actions that impinge on civil liberties should even require standing, as the issue is as political as it is judiciable.

      1. On a facial challenge that a law is unconstitutional, you do have standing as a citizen even if not hit.

        With regards to actions rather than laws... not so much.

        1. In theory, yes, but there are cases that wiggle out of that.

          In any case, if the government does something unconstitutional, that should be judiciable. Period. Or we're even more screwed than we are.

  5. How many times has the FISC rejected a government request?

    1. I bet you can get the answer on the first guess.

      1. I know it was zero for many years, but I have a vague recollection that there might have been one no. But I'm not at all sure about that.

        1. ..... that there might have been one....

          The exception that proves the rule.

        2. I googled 'FISA court rejections'.

          Interesting Star Chamber fact:

          "since opening for business in 1979 it has granted more than 32,000 secret search warrants and rejected only 11. Two of those rejections were only partial, and of the nine full rejections the Court later granted modified requests in three of them, leaving only six complete rejections over 32 years.

          1. To be fair, that's six times as many as I thought. The process is 600% better!

            1. "The process is 600% better!"

              You owe me a new monitor. And keyboard.

              1. Here's a trivia question: How many were denied during the Bush administration and how many under Obama?

        3. They accidentally tried to pick on a government employee.

  6. "What Is It About the Fourth Amendment's "Individualized Suspicion" That the NSA, Obama, and Congress Just Don't Get?"

    Please show evidence that they dont get it. I believe if you look at Obama's speeches given prior to his winning the election in 2009 it is clear that he understands it very well.

    I vaguely remember reading a quote from Huey Newton where he admitted that his reason for studying law was to become a better criminal.

    Three words: Constitutional Law Professor.

    1. Yeah, but that "extraordinary circumstances" and "public danger" exception is wide enough to drive a wire-tapping truck through. War on Terra! We're all in danger! Let's spy on everyone! Politicians and bureaucrats won't abuse their power, they're just defending us!

  7. What Is It About the Fourth Amendment's "Individualized Suspicion" That the NSA, Obama, and Congress Just Don't Get?

    Uh, obviously the core concept, Llana. /archer


    1. No, no! That is when we have to waterboard the phone carrier!

  9. It's been interesting to watch the strange bedfellow phenomenon surface as far-left Obama drones and neocons get together to defend this ridiculous violation of American citizens fourth amendment rights.

    The WSJ had an editorial this morning that was just terrible in defense of the program entitled "Thank You for Data-Mining" wherein they argue "The NSA's 'metadata' surveillance is legal and necessary."

    Part of their argument comes down to this -
    "The critics nonetheless say the NSA program is a violation of privacy, or illegal, or unconstitutional, or all of the above. But nobody's civil liberties are violated by tech companies or banks that constantly run the same kinds of data analysis."

    Unbelievably, the WSJ wants to say that a voluntary transaction between by bank and me, one in which the bank is required to obtain my authorization in order to "data mine" my information, is the same as the government collecting phone records.

    The defense of this whole operation is simply disgusting and offensive, and I hope this bring more people in to the libertarian tent.

    1. "The NSA's 'metadata' surveillance is legal and necessary."

      Those that would trade a little freedom for a little security would deserve neither and lose both. -Ben Franklin

      We're proving such a prophecy to be true.

      1. I think it was more of an observation than a prophecy.

        1. It certainly is yet another reminder of how prescient the founding fathers were. The main principle that runs throughout the Constitution is the reality that no single individual or group of individuals should be allowed access to power that would most surely corrupt absolutely.

          They have been proven accurate repeatedly throughout the brief history of our nation.

    2. check out National Review for the defensive posts:

      This "spying" business is exactly what many conservatives defended under the Bush administration. Are they now going to turn civil libertarian when a Democrat engages the same powers? At least Obama has gone to the FISA court, as the law requires, which Bush claimed the right to ignore.

      The mass collection of computer data, without more information, does not violate my privacy ? I am just zeros and ones to a computer, if it had any awareness in the first place.


      1. and

        As we've seen time and again, the threat ? indeed, the reality ? of government abuse of power is something we need to be very concerned about. But righteous anger over the Obama administration's malfeasance does not alter the facts that terrorists are trying to commit mass-murder attacks against Americans and that the government's access to the kind of information we are discussing has helped prevent a reprise of 9/11.


        1. Even the Volokh conspiracy got in on it too.


          Fortunately the comments are refreshing.

    1. Creep engages in criminal activity.
      Shoots a young woman through the neck to keep from getting 'ripped off' for a measly 150 bucks.
      Creep is acquitted.

      Excuse me while I go vomit.

      *Never mind the issue as to whether or not prostitution should not be illegal.

      *Never mind that 'young woman' was 23 and in my eyes still a child in many respects.

      1. Yeah it's a shitty situation for sure. Still, letter of the law and all that.

        1. Texas is weird on deadly force in defense of property, especially when that defense is at night. As IIRC, T put it here, 'if you like to fuck with someone else's property at night, Texas is the wrong state in which to do it.'

          On a purely monetary basis, even if it's legal for him to shoot the woman, the court costs, lawyer fees, bail, cost to replace the weapon: all are going to drastically outnumber the 150 he was out. I'm not sure if her heirs are barred from filing a wrongful death suit or not, so if they aren't, add those costs to the ledger too.

          I'm not even sure that her conduct was sufficiently offensive to be covered by the statute. I guess it's 'theft during the nighttime?' Clearly the judge and jury thought it was covered.

  10. valid warrants.

    "Of course it's valid. It's a warrant, isn't it?"

  11. I am starting to wonder if this has anything to do with that great bugaboo of the modern age, "profiling."

    Let's say that you are the NSA and want to use data mining and traffic analysis to look for terrorists, ignoring the "individualized suspicion" issue. You'd probably want to start with looking at the phone records of all calls to and from the Middle East, and all calls between people with Muslim-sounding names. Ah, but that would be "profiling," which we all know is a horrible, racist, legally-suspect thing that never does any good whatsoever. Besides, you might miss something. So, better to get all records, and just ignore calls between Jane Smith in Iowa and Sally Smith in South Dakota.

    1. I mentioned this yesterday: The FTC has been loudly moaning about businesses compiling consumer information from a variety of sources to engage in "behavioral targeting." This is bad because businesses might sell you stuff you want, while creeping you out a little.

      The government is likely engaging in the same thing. Compiling data on people who are suspected of no crime or vaguely fall into a suspect group (e.g., Muslim), running predictive algorithms to determine whether you should be investigated, etc. Totally benign, because the government won't sell you stuff you want.

  12. U.S. Constitution? tl/dr

    /government officals

  13. My real question is whether we should expect Obama to resign over all the bullshit he's been doing. For the "most transparent administration in history," he's really pulling a lot of bullshit behind the scenes.

    1. The administration doesn't need a Special Prosecutor. It needs a Special Anal Probe. I think enough has been uncovered that we need to go whole hog rooting out the corruption and abuse of power.

      1. Call Roto Rooter when its a pain, and watch your troubles go down the drain!

    2. My real question is whether we should expect Obama to resign over all the bullshit he's been doing.

      Please, you really expect this guy to go down for the honor of the office? He's been shittier than Nixon so far; why not keep with the trend? No, he's going to have to be dragged out of the White House kicking and screaming. If that happens, I will be happily munching popcorn and watching CSPAN's live video of it. Hell, you could make it pay-per-view, and pay off a good chunk of our debt.

    3. Or, he really has no interest in anything other than his legacy and popularity rating and enjoying the good life on the tax-payer's dime, and what we're seeing is the result of letting the civil service run amok. Yes, perhaps Obama has enough time to hatch and juggle plots within the ATF, FBI, NSA, CIA, IRS, State Department, FEC, and so on, and somehow draw in poor innocent multi-administration careerists like Lois Lerner or the guys running the ATF branch in Phoenix.

      Or, maybe the executive branch of the government is basically run by the senior careerists in the executive branch of the government, and Congress and the President are essentially told what do while being given only enough information to give them the mistaken impression they are in charge or at least capable of influence or oversight. But since any scandal is easily turned into a partisan war, there is no real threat from that angle.

      1. That's my take too. I don't think Obama was/is in cahoots with all the alphabet agencies, so much as the career bureaucrats running those agencies felt emboldened to do stupid things to fuck with their political opponents based on rhetoric from the Obama administration. I think they came to believe it was their JOB to thwart tea party groups, run guns to Mexico, investigate Fox reporters...


    There. Now Malia's Buttplug and Tony (or T o n y) can go find some other bright, shiny object with which to distract themselves for the remainder of the day.

  15. It's really quite simple. The government views each and every American as potential terrorists. Why else does the TSA feel up grannies and kids? Obviously they are afraid that we are all scheming to bring the terror and at this point they may have a point.

    1. If they keep pushing it they fucking sure will have a point.

      1. You're obviously one of those crazy rednecks who actually believe the 2A was in part meant to allow citizens the ability to shoot back at tyrants...

        That puts you on the same list that I'm already on... Auntie Janet is keeping her list and checking it twice, gonna find out who's a tea bagging redneck and who's been a good little socialist...

  16. Just out of curiousity, what is the purpose of a warrant? Does it have anything to do with the judicial branch keeping a check on the power of the executive? Does it have anything to do with making a transparent record of such that the public can examine?

    I ask this silly question because to me 'secret search warrant' is an oxymoron.

    1. Why does the FISC always say yes? What does that say about the process?

      I think this idea that invoking national security trumps constitutional limits is nuts. Most classified stuff--and I'm talking 99% of it--can't be anything really critical, like troop movements or the identity of secret agents. I know some things could be used to put two and two together, but I also know that things get classified to protect the government, not the country.

  17. They keep telling us they are only collecting the phone numbers and time of conversations. Something they weren't supposed to do in the first place, so how long until we find out that they also kept the conversations.

    1. I've said already that I think they've been trying to keep the content of calls for awhile now. They may not have looked at the content, other than when performing a specific search on a narrowly-focused set of calls or when looking for a particular voiceprint, but they damned well have the capability to store the calls. And e-mails. And cheezeburger videos etc...

      The NSA's budget and reach are vast. They're building a multi-billion dollar data center in Utah, and that's just what we know about. God only knows what crap they have in the basements of Meade, Huachuca, and anywhere else not publicly known.

  18. You think you've private lives
    Think nothing of the kind.
    There is no true escape
    I'm watching all the time.
    I'm made of metal
    My circuits gleam.
    I am perpetual
    I keep the country clean.
    I'm elected electric spy
    I'm protected electric eye.
    Always in focus
    You can't feel my stare.
    I zoom into you
    You don't know I'm there.
    I take a pride in probing all your secret moves
    My tearless retina takes pictures that can prove.

    For a song that is damn near 30 years old pretty damn prophetic...

  19. It's really going to get fun now. Anonymous is now in on it, releasing NSA documents.

    1. You know things are going downhill for the Pres when he losesMichael Moore

    2. Let's see Feinstein's phone records. She has nothing to hide, right?

  20. Law enforcement may only conduct a search if individualized suspicion (emphasis added) motivates the search. The Fourth Amendment prohibits generalized searches (emphasis added), unless extraordinary circumstances place the general public in danger.

    Can someone explain DUI checkpoints to me, then?

    I know, FYTW.

    1. I think DUI checkpoints are less based on FYTW and more based on Helen Lovejoy Syndrome ("Won't somebody please think of the children?")

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