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