Evan Katz

*This post is a modified version of my POLS 1105H research paper, The Constitutionality of NSA Metadata Collection.

In 2013, Edward Snowden, a former National Security Agency (NSA) contractor, leaked classified information about the NSA bulk telephony metadata collection program to The Guardian newspaper. In the leak, Snowden revealed to reporter Glenn Greenwald that the NSA had been collecting metadata on the telephone calls of the American people for the previous seven years. Snowden’s actions sparked national debate over the constitutionality of, and justifications for, government surveillance programs in the United States. While the Foreign Intelligence and Surveillance Court (FISC) has justified the constitutionality of the NSA bulk telephony metadata collection program through the “third party doctrine” established in Smith v. Maryland in 1979, the mass collection of metadata violates the inherent assumptions of the Fourth Amendment to the United States Constitution. The third party doctrine fails to properly apply to the digital age, and mass collections constitute a “search” under United States v. Jones, therefore failing the particularity bright-line test outlined by the amendment.

The Fourth Amendment to the United States Constitution was ratified as part of the Bill of Rights in 1791. The amendment protects American citizens and their “houses, papers, and effects” from “unreasonable searches and seizures” and requires the issuance of a warrant “particularly describing the place to be searched, and the persons or things to be seized” in order to search and seize individuals and/or their property. The impetus for this amendment developed from colonial backlash against the British practice of inspecting colonists under a writ of assistance, without any probable cause, for anything that might be considered unlawful by the Crown, a power outlined in the Excise Act of 1754. The Fourth Amendment clearly establishes a particularity bright-line for the types of searches permitted under the Constitution; all searches and seizures are deemed unconstitutional unless a judge issues a warrant authorizing a search for a particular item at a particular location. Requiring a warrant for particular searches or seizures eliminated the intrusive nature of the broad, untargeted searches carried out by the British during the Colonial Era. As an additional protection, the exclusionary rule prohibits using anything incriminating obtained outside the jurisdiction of a warrant as evidence against an individual in an attempt to convict them of a crime.

Though the Fourth Amendment explicitly protects individuals from unreasonable searches and seizures, it notably fails to enumerate a right to privacy. A number of Supreme Court cases have attempted to remedy the amendment’s lack of clarity on this issue, specifically with regards to telephone conversations. In 1928, the Supreme Court ruled in Olmstead v. United States that the use of wiretapped phone conversations as evidence in a court trial does not violate the Fourth or Fifth Amendments, essentially casting them outside the umbrella of constitutional protection. The majority opinion asserted that protections afforded by both aforementioned amendments only apply to physical searches and seizures, neither of which was carried out on Olmstead. This decision was later overruled in 1967 as part of Katz v. United States, in which an individual, Charles Katz, had been convicted of using a public telephone booth to relay illegal bets to other cities around the country. The FBI, without Katz’s knowledge, recorded his conversations by bugging the telephone booth he used and later submitted the recordings as evidence in his trial to convict him. The Supreme Court ruled that this evidence had been obtained illegally, as it interpreted the Fourth Amendment in such a manner that did not limit protections solely to physical searches; it also extended protections to communications between people because conversations have a “reasonable expectation of privacy” and therefore cannot be searched (i.e. wiretapped) without a warrant. This reasonable expectation test has since served as the basis for determining whether a warrant is required to carry out a search.

The Supreme Court returned to the Katz case in 1979 when adjudicating Smith v. Maryland. This particular case arose from the use of a “pen register” device on a telephone to record information about calls, including numbers dialed and the duration of the call. Smith argued that the manner in which the data about his calls was collected violated his constitutional protection from unreasonable searches and seizures, as the pen register device was installed on his telephone without his knowledge or a warrant. The majority opinion applied the reasonable expectation test in its decision, and ultimately argued that, because data about telephone conversations, including the participants in a call and the duration of that call, is collected and recorded by a telephone company, as part of the service provided, there is no reasonable expectation of privacy protecting that data because individuals consuming that service voluntarily disclose information to a third party. Therefore, a pen register device installed on a telephone to monitor who an individual calls and for how long that individual is on the phone would not constitute a breach of privacy or an unreasonable search or seizure. The third party doctrine established in the Smith case played a key role in the internal FISC decision declaring the NSA bulk metadata collection program constitutional, as telecommunications companies represent a third party that collects telephony metadata, essentially exempting the federal government of the warrant requirement to collect this data.

However, another Supreme Court case introduces an alternative understanding of the Fourth Amendment that challenges the FISC justification for the NSA program. In 2012, the Supreme Court ruled in United States v. Jones that using global positioning system software to track an individual’s vehicle and its movements or whereabouts constitutes a search under the Fourth Amendment. Surprisingly, despite the fact that GPS tracking information gets transmitted to numerous other applications through which the government could theoretically acquire that information, the Supreme Court did not invoke the third party doctrine in its decision. The majority opinion, authored by Justice Scalia, argued that GPS tracking on a vehicle would be considered a “physical intrusion on an ‘effect’ for the purpose of obtaining information [which] constitutes a ‘search.’” In her concurring opinion, Justice Sotomayor took the majority opinion a step further and cited the nature of the digital age as a reason to reconsider the third party doctrine altogether, as individuals more often than not unintentionally reveal sensitive information to third parties; citizens should not reasonably expect every online activity to be disclosed to the government.

In line with Sotomayor’s critique of the third party doctrine, two major problems arise with the doctrine as it applies to the NSA bulk telephony metadata collection program. First, the scope of the NSA program greatly overshadows that of Smith, rendering the two situations entirely distinct. Whereas Smith dealt with tracking down a single burglary suspect using metadata from a pen register device installed on the suspected burglar’s telephone, the NSA program collects metadata from cell phones and other electronic devices, including computers and tablets, en masse from the American public without a particular individual, group, subject, or type of data in mind so that it may be readily available when needed at a later date for, say, conducting a manhunt for a domestic terror suspect. To apply Smith to the entire population of the United States is both irresponsible and an infringement on personal liberties, as it assumes that every citizen is likely to be suspected of a crime and must be under constant government surveillance.

Second, different types of third parties exist, especially in the digital age. Huge distinctions differentiate “natural third persons,” with which two parties voluntarily share information, from “electronic intermediaries” that facilitate interactions between two parties. Interactions involving a third party of the former type would not have a reasonable expectation of privacy, and constitutional protections would no longer apply. The latter type of third party, however, only exists to more easily facilitate interactions between two parties. As technology has advanced, the use of electronic intermediaries in certain interactions that previously would have been afforded a reasonable expectation of privacy has become more commonplace as a means of increasing convenience. The third party doctrine in its current form would hold that these interactions now no longer have a reasonable expectation of privacy because of the presence of an intermediary. In a world of increasing technological advancement, this becomes problematic, as nearly every interaction will eventually require an electronic intermediary, permitting the government to legally search practically anything it wants without a warrant.

Applying the logic used in Jones, bulk metadata collection should be considered an intrusion on an “effect” (i.e. a cell phone) because the metadata is used to track individuals and their calling patterns in a similar manner to which Jones’ vehicle was tracked using GPS, which ultimately constitutes a search under the Fourth Amendment. Since the NSA program functions as a general warrant similar to those used by the British to search colonists, this interpretation would render the NSA program unconstitutional, as it would violate the particularity bright-line test put forth by the Fourth Amendment. To carry out this “search,” the NSA would have to acquire a warrant to collect a particular type of metadata from a specific individual or group.

The battle over the NSA’s metadata program is very much ongoing and has occupied center stage in recent months. In August of 2015, a U.S. appeals court overturned a lower court’s ruling that the program was unconstitutional. However, in November, the NSA’s authority to collect metadata in bulk granted under Section 215 of the USA Freedom Act expired. Though collection of metadata en masse from the public is still technically constitutional, the NSA no longer has the authority to do so; instead, it must go through telecommunications companies to access metadata for specific cases unless Congress decides to grant it authority once again. The expiration represents a measured victory for the implied right to privacy in the penumbra of the Constitution, but it does not close the door on government surveillance entirely, or metadata collection programs in the future.

Ultimately, as Justice Brandeis forewarned in his dissenting opinion in Olmstead v. United States, scientific advances afford the government with new means of infringing on the privacy of its citizens. Absent proper protections, eventually these advances will create a scenario where an omniscient government can “explor[e] unexpressed beliefs, thoughts and emotions” and use them against its own people, placing “the liberty of every man in the hands of every petty officer.” While the bulk collection of metadata is a far cry from reading the minds of potential criminals, it represents a form of mass domestic surveillance that should be curtailed to protect the privacy of the American people. The third party doctrine set forth by Smith clearly fails when applied to the digital age, as evidenced by the opinions delivered in Jones; challenging the third party doctrine by distinguishing between natural third persons and electronic intermediaries reintroduces a reasonable expectation of privacy to areas that previously were afforded protection under the Fourth Amendment and establishes a check that prevents the endless expansion of government surveillance.

References

Barnett, R. (2014). Why the NSA Data Seizures Are Unconstitutional. Harvard Journal of Law & Public Policy, 38(1), 3-20.

Collins, J.P. (2012). The Third Party Doctrine in the Digital Age. Justice Action Center Student Capstone Journal, 1-27.

Galicki, A. (2015). THE END OF SMITH V. MARYLAND?: THE NSA’S BULK TELEPHONY METADATA PROGRAM AND THE FOURTH AMENDMENT IN THE CYBER AGE. American Criminal Law Review, 52(375), 375-414.

Lamparello, A. & McLean, C. (2014). Riley v. California: The New Katz or Chimel?. Richmond Journal of Law and Technology, 21(1), 1-19.

U.S. Const. amend. IV.