Surveillance reform without the Fourth Amendment

|The Volokh Conspiracy |

Don't overlook one key feature of surveillance reform and the passage of the USA Freedom Act: It came from legislation, not the Fourth Amendment. A court had wrongly allowed the bulk surveillance program that Congress had not actually authorized. When the public became aware of the program, Congress restricted the program by passing a new law.

Note what wasn't a significant influence on the reform: the Fourth Amendment. All but one of the judges who ruled on the issue concluded that the Fourth Amendment wasn't implicated by the bulk telephony metadata law. In the one case where a judge ruled that the prior program violated the Fourth Amendment, that court stayed the ruling on appeal and the court of appeals on review seemed pretty skeptical about the ruling at oral argument. Another appellate argument echoed that skepticism. And yet Congress acted anyway to curtail the program. Congress didn't need the Fourth Amendment to do that. Instead, Congress just acted out of a sense that the public interest favored restricting the program.

Some will point to the Second Circuit's decision as influencing Congress, and they will argue that the courts nonetheless played a role in reform. But note two things. First, the Second Circuit's decision limited its ruling to statutory law and declined to say how the Fourth Amendment applied. Second, the role of the courts cut both ways. The bulk telephony metadata program existed in the first place because a court had wrongly authorized it.

Some will also point to rhetoric among some legislators who invoked the Fourth Amendment in their speeches about surveillance reform. That's true. But I think it's very much a minority of politicians who are voting on surveillance laws based on their independent assessments of Fourth Amendment limits. That's an honorable thing when it happens. But the Fourth Amendment is more often invoked in legislative debates as a rhetorical device. In that context, it's still ultimately an assessment of sound policy that is running the show.

The leading role of Congress in surveillance reform is a good thing, I think. Congress is better equipped to engage in surveillance reforms than are the courts. But here I'm making a smaller and even obvious point. The USA Freedom Act is a legislative reform. Given how surveillance debates so often focus on the role of the Fourth Amendment and the courts, it's worth flagging that the reforms here came from Congress.

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