Why the NSA's Snooping Supposedly Complies With the Fourth Amendment



Yesterday's revelations about mass NSA snooping were quickly followed by assurances from administration officials and members of Congress that it was all perfectly legal. How can that be true?

The NSA's collection of telephone records from Verizon was based on Section 215 of the PATRIOT Act, which authorizes the director of the FBI or his designee to apply for a secret court order requiring production of "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities." To obtain the order, the government need only "specify" that the records are part of such an investigation and that it is not targeting a U.S. citizen or legal resident "solely upon the basis of activities protected by the first amendment." Those requirements are considerably less demanding than the "probable cause" that the Fourth Amendment specifies as the standard for search warrants, and the resulting court orders can be much broader—in this case, seeking information on all phone calls, domestic and international, handled by Verizon (and it seems safe to assume that other carriers have received similar orders). But doesn't that sort of dragnet violate the constitutional rights of Verizon's customers? Not according to the Supreme Court, which has repeatedly said people have no Fourth Amendment rights in connection with records held by third parties, on the theory that they have voluntarily divulged that information and therefore no longer have a reasonable expectation that it will remain private. The level of protection accorded such records is therefore determined by statute.

Even at a time when people's records typically were kept on paper in filing cabinets, that doctrine did not make much sense. The Fourth Amendment, after all, protects people's "papers" as well as their "persons," "houses," and "effects," from "unreasonable searches and seizures." Why should that protection hinge on the location of those papers? The fact that you have disclosed information to a particular person or business for a particular purpose does not necessarily mean you have no legitimate interest in shielding it from government snooping. Nowadays people's "papers," including a great deal of sensitive information, are commonly kept on remote servers, which has created an anomalous situation in which the government needs a warrant to listen to a phone call or open a letter but arguably can read email at will (unless it happens to be stored on your own computer). Proposed amendments to the Electronic Communications Privacy Act would clarify that a warrant is always required to look at people's email, but the privacy of this ubiquitous method of communication will still hinge on legislation passed by Congress instead of the Fourth Amendment.

The same appears to be true of the data collected by the NSA as part of its PRISM program, which reportedly involves direct access to the servers of Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple. The Washington Post reports that the NSA is "extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets." The administration's defense of this program rests mainly on the claim that it targets foreigners, with collection of Americans' personal information merely "incidental." Director of National Intelligence James Clapper assures us that PRISM "cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States." I don't know about you, but I do not feel reassured upon hearing that Americans' privacy is compromised only by accident. In any case, whatever privacy protection Americans enjoy with respect to most of this online material, because it consists of information held by third parties, would be based on statute. And what Congress gives, Congress can take away.

At least one member of the Supreme Court finds this situation alarming. Concurring in U.S. v. Jones, the 2012 case in which the Court said tracking a suspect's car by attaching a GPS device to it amounts to a "search" under the Fourth Amendment, Justice Sonia Sotomayor urged her colleagues to rethink the third-party doctrine:

It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the "tradeoff " of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable," and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

If the controversy over NSA surveillance leads Congress to increase statutory protections for electronic privacy, that would be good. If it leads the Court to a new understanding of the the Fourth Amendment's relevance in this area, that would be better.

Addendum: The Electronic Privacy Information Center cites three reasons for concluding that the Verizon order, given the enormous breadth of the information it required, was not in fact authorized by statute. First, the order was supposed to be based on "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation," something the government could not have done with respect to millions of Verizon customers. Second, the government is not supposed to conduct an investigation "solely upon the basis of activities protected by the First Amendment." Yet for the vast majority of people whose information was collected, the only basis was the fact that they made phone calls, an activity protected by the First Amendment. Third, investigations must comply with "guidelines approved by the Attorney General under Executive Order 12333," which instruct investigators to "use the least intrusive collection techniques feasible within the United States or directed at U.S. persons abroad."

NEXT: Rep. Thomas Massie on Govt Surveillance, IRS Scandal, and D.C.'s Diet of Turd Sandwiches

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  1. This is the same goddamned “reasoning” that the Supremes used in upholding student drug testing. The idea, believe it or not is that it was OK to test student athletes, since they had a diminished expectation of privacy due to the fact that they showered together!

    Don’t these fucking jurists have to at some point take a case in simple logic? It would seem that this question answers itself.

    1. course in simple logic.

      1. Understanding and caring are two different things.

        1. They don’t even seem to understand.

      2. The dirty secret of jurisprudence is a few judges argue backwards from their desired conclusion.

        1. Only a few?

  2. Not according to the Supreme Court, which has repeatedly said people have no Fourth Amendment rights in connection with records held by third parties, on the theory that they have voluntarily divulged that information and therefore no longer have a reasonable expectation that it will remain private.

    I can’t wait to see somebody apply this theory to some attorney’s work-product in the course of an investigation.

    You divulged the information to your lawyer, therefore you have no reasonable expectation that it will remain private.

    1. Attorney-client privilege is a much stouter barrier than the Fourth Amendment. For now.

    2. Oh, this will come back to bite them at some time.

  3. The Founders listed the things we were to be “secure” in. That’s pretty explicit, and nowhere did they include telephone conversations or electronic mail. It’s obvious since they enumerated specific items that the rest would be excluded from protection.

    1. So if someone wrote on wood instead of paper they could just seize that on the grounds that it’s not “paper?”

      1. Hmm, paper is made of wood. Could be a gray area. How about if your private correspondence is engraved on silver serving trays?

        1. They made a list! They should have added “and the rest” at the end of the list if they didn’t want things enumerated. Did the Founders learn nothing from the theme to Gilligan’s Island?

  4. Just because something might be constitutional, that doesn’t mean it’s a good idea.

    Ultimately, it may not matter, since these warrants are secret and effectively beyond challenge. Assuming the warrants actually exist, of course. It’s not like there’s anyone who can or will verify that.

    1. YES!

      I don’t care if this fucking shit is technically Constitutional or not.

      I DON’T WANT.

      I particularly don’t want these assholes spending $billions of borrowed/printed money to spy on me.

  5. The 4th Amendment doesn’t say that you have a right to have your papers be private.

    It says the government can’t have them.

    Therefore, even if I have no expectation that the papers will remain private, I think I still have an expectation that the papers will remain unavailable to the police.

    1. This type of reasoning should have been central to the original debate over records held by third parties.

    2. even if I have no expectation that the papers will remain private, I think I still have an expectation that the papers will remain unavailable to the police.

      This is something truly incomprehensible to most statists, and even more so to progressive types who mistrust private companies to begin with. Of all the entities in the world, the government is among the last I would want to know anything about me. For most people, it’s the one they’re most comfortable with. Scary.

    3. Exactly. Even though I voluntarily allow a bank to hold most of my money, I still expect it to be secure.

  6. Why? Because FYTW!

  7. When privacy rights become a matter of “statute” they’re effectively non-existent.

    It’s mind-boggling that the state interprets a lack of expectation to privacy with regards to emails as a license to make the NSA a permanent BCC recipient on just about every electronic exchange between private parties. How serious do you suppose a jury would take a lone hacker’s argument that hacking someone’s email account was perfectly legal given that the victim had no reasonable expectation to privacy in the first place? (This is assuming of course that said hacker doesn’t have a badge to lap or boots to lick.)

    And at the same time, the state is burning Bradley Manning for a witch for the supposed crime of aiding and abetting terrorists by disclosing classified documents to the public at large (because al Qaeda count as part of the public, get it?).

    Iceland keeps looking better.

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