Is Mass Collection of Cellphone Tracking Data by the NSA Constitutional?

In ruling yesterday that cellphone location data are not covered by the Fourth Amendment, the U.S. Court of Appeals for the 5th Circuit said its decision was limited to "historical cell site information for specified cell phones at the points at which the user places and terminates a call." The court explicitly did not address "orders requesting data from all phones that use a tower during a particular interval" or "orders requesting cell site information for the recipient of a call from the cell phone specified in the order." But given the court's conclusion that "cell site data are business records and should be analyzed under that line of Supreme Court precedent," meaning they receive only as much protection as legislatures decide to give them, it is hard to see why orders broader than the ones at issue in this case would implicate the Fourth Amendment. Suppose the National Security Agency (NSA), which has admitted that it maintains a comprehensive database with information about who is calling whom, when, and for how long, had a similar database containing the historical whereabouts of everyone with a cellphone. According to the 5th Circuit's logic, such a database would not raise any Fourth Amendment issues, because the information in it was voluntarily disclosed.

It is looking increasingly likely that the NSA does indeed have such a database or something like it. Back in May 2011, Reason Contributing Editor Julian Sanchez, a privacy specialist at the Cato Institute, speculated that the secret interpretation of the PATRIOT Act to which Sen. Ron Wyden (D-Ore.) kept referring had to do with "location tracking." Sanchez suggested that the Obama administration could be reading Section 215 of the PATRIOT Act (known as the "business records" provision) to allow mass collection of cellphone location data. After former NSA contractor Edward Snowden revealed the agency's dragnet of telephone metadata, Sanchez says, "I concluded I had probably guessed wrong," since NSA officials insisted that program did not include location information. But after reading Wyden's recent speech about the surveillance state, Sanchez cites several clues suggesting he was right after all.

As I noted last week, Wyden, a member of the Senate Intelligence Committee who is constrained by secrecy rules from explicitly discussing classified surveillance programs, implied that the full contours of the NSA's domestic snooping have not been revealed yet. As a result of Snowden's leaks, he said, "Several provisions of secret law were no longer secret, and the American people were finally able to see some of the things I've been raising the alarm about for years." Several and some, but not all. Sanchez points out that Wyden also said the secret Foreign Intelligence Surveillance Court (FISC) decision allowing mass collection of telephone records under Section 215 was "as broad as any I have ever seen," implying that the court has issued at least one other ruling that was equally broad. What did that decision deal with? Sanchez notes that "Wyden explicitly mentioned location tracking no fewer than five separate times—discussing it far more frequently than [the] program we actually know about, involving bulk collection of call records." Sanchez argues that "his focus on location tracking…would be an inexplicable obsession if he knew that no such program existed."

If Sanchez is right, that means the FISC not only has agreed that Section 215 authorizes the indiscriminate collection of location data but that such a program passes muster under the Fourth Amendment, presumably based on the same sort of analysis the 5th Circuit used in yesterday's decision. As Wyden noted in his speech, this astonishingly broad reading of Section 215's requirement that the information sought by the government be "relevant" to a terrorism investigation makes all manner of records held by third parties vulnerable to mass collection:

The government can use the PATRIOT Act's business records authority to collect, collate and retain all sorts of sensitive information, including medical records, financial records, or credit card purchases.They could use this authority to develop a database of gun owners or readers of books and magazines deemed subversive. This means that the government's authority to collect information on law-abiding American citizens is essentially limitless. If it is a record held by a business, membership organization, doctor, or school, or any other third party, it could be subject to bulk collection under the PATRIOT Act. Authorities this broad give the national security bureaucracy the power to scrutinize the personal lives of every law-abiding American.

According to the "third party doctrine" that the 5th Circuit applied to cellphone location data, none of this surveillance implicates the Fourth Amendment. While we might like this information to remain private, the doctrine says, we cannot reasonably expect it will once we have voluntarily divulged it to a third party. As I mention in today's column, this notion that sharing information with others nullifies the Fourth Amendment met with spirited objections during the congressional debate over the Amash Amendment, which was aimed at stopping the NSA's mass collection of phone records. Rep. Ted Poe (R-Texas), for example, took it for granted that the government should need a warrant to compel production of telephone records:

Warrants need to be particular and specific about the place to be searched and the items to be seized. No judge would ever sign a general search warrant like the British did, allowing the police to search every house on the block, much less seize everybody's phone records. But this is what has happened under Section [215]. The government's gone too far in the name of security. The Fourth Amendment has been bruised. Rein in government invasion. No more dragnet operations. Get a specific warrant based on probable cause, or stay out of our lives!

If the Amash Amendment had passed, however, the government still would not need a warrant based on probable cause to obtain telephone metadata, or any other kind of "business record," unless Congress passed a law requiring one. Even legislators outraged by the NSA's invasions of our privacy do not seem to realize how vulnerable we are to government snooping as a result of the misbegotten and increasingly alarming third party doctrine.

Here is video of the Amash Amendment debate. Poe's comments begin at the 17:05 mark.