The Supreme Court has ruled consistently that the government must obtain a search warrant in order to intercept any nonpublic communication. The Constitution requires probable cause as a precondition for a judge to issue a search warrant for any purpose, and the warrant must "particularly (describe) the place to be searched, and the persons or things to be seized." Probable cause is evidence about a person or place sufficient to permit a judge to conclude that evidence of a crime will probably be found. Yet both the Patriot Act and the USA Freedom Act disregard the "probable cause" standard and substitute instead a "government need" standard.
This is no standard at all, argues Andrew Napolitano, as the NSA has claimed under the Patriot Act that it needs all telephone calls, all emails, and all text messages of all people in America. Today it may legally obtain them by making the same claim under the USA Freedom Act. When politicians tell you that the NSA needs a court order in order to listen to your phone calls or read your emails, they are talking about a court order that is based on government need—not a constitutional court order, which can only be based on probable cause. This, writes Napolitano, is an insidious and unconstitutional bait and switch.