NSA and the Fourth Amendment

by Paul Siciliano


This week's uproar over the NSAs activities with respect to collecting phone records (or, more accurately, maybe, creating an archive of such records to which to search when a warrant is granted) and the PRISM program causes many people to throw out claims of Fourth Amendment violations.  It amuses me because people only seem to care about the Fourth Amendment when it affects them.  When a Fourth Amendment violation is the reason a conviction is overturned, people bitch because a criminal went free on a "technicality".  I have always believed that the Constitution is not a "technicality".  Much of the frustration stems that the only way Fourth Amendment violations can be challenged is through criminal proceedings.  (There is always voluntary government action.) 

If you take the Administration and the NSA at face-value and that they are honestly describing what is occurring, there isn't a Fourth Amendment violation as our current jurisprudence stands.  One of the major differences between Obama and Bush when it comes to such issues, is that Obama prefers to cloak himself in the dress of legality, while Bush had no real qualms about violating the Constitution for national security.   

First, with the phone records.  If all that telephone companies are required to do is to deposit their business records and then the NSA can search specific records after getting a warrant - there really isn't a Fourth Amendment violation.  If no such repository was required, the NSA can still get a warrant for the records and get them directly from the company.  The fear, and somewhat justifiably so, is that the federal government is going through these records without a warrant - why else have a repository?  And, why else keep it a secret?   My guess is the repository is to prevent someone from the phone companies from knowing which numbers are being searched (so as not to tip off a customer).  As for keeping the program secret - that, as I noted before, is probably because of this culture of secrecy where everything needs to be classified.  That is a much larger issue that needs to be addressed. 

Second, with PRISM.  There is no Fourth Amendment protection for activities that occur exclusively outside the United States (our Supreme Court is pretty firm on that).  What about communications that occur between a point in the United States and one outside?  That is dicier.  There is a Fourth Amendment exception with respect to border crossing.  Obviously, the United States has a right to know what is coming inside its borders and can search such entry without a warrant or even probable cause (most Fourth Amendment exceptions involve the warrant requirement, border crossing involves that and the probable cause requirement).  Does that apply to communications, especially in the electronic age?

The Supreme Court has not tackled that issue yet, but some of the Circuits have and have found that electronic documents stored on a computer can be seized and searched without probable cause.  Of course, the case involved child pornography so judges are loathe to say that the government can't conduct such a search.  Ultimately, this issues needs to be addressed by the Supreme Court, but the only way that will happen, is if some evidence is used in a trial that came through such means - and that is not likely to happen.  And, if there was poison fruit from such a search, the criminal defendant is likely not to know because it will be kept secret for national security purposes.  Quite a quandary.   

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The only way, at this time, to solve this issue, is through the political process.  There is no reason why the broad parameters of these two programs need to be classified.  Interestingly, when I was in college back in the 1990s, I had a professor tell us that all communications are pretty much intercepted by the NSA already.  The best way to stop the public "hysteria" is to be more open - an openness we have a right to in a democracy.   

The American people do not need to know specific targets or even great details of investigative techniques, but we do have the right to know generally what is being done, and whether we approve of such techniques.  Since we cannot turn to the Courts, secrecy is pretty much closing off any avenue we have to discuss such important matters. 

A little side note - I totally find the Fourth Amendment and its jurisprudence fascinating and recommend all Americans to read up on it.  It is a complete mess that somehow works for the most part - and a lot of this mess occurred because of our stupid and ill-conceived "War on Drugs".  That is another reason to hate this costly and fruitless social policy.