Constitution Day 2013

The NSA’s Unconstitutional Spying Program

On June 5, 2013, we learned that, since 2006, the Foreign Intelligence Surveillance Court had continually compelled the ongoing disclosure of information pertaining to telephone calls traversing the United States to the National Security Agency. The program was justified under section 215 of the Foreign Intelligence Surveillance Act, as amended by the USA PATRIOT Act. Upon discovery of the mass surveillance program, the Electronic Privacy Information Center filed a Petition for a Writ of Mandamus with the Supreme Court. EPIC’s Petition argued that the program was unlawful under the statutory language that requires that information be “relevant to an authorized investigation.” However, for other reasons the program is also unconstitutional under the Fourth Amendment and should be discontinued immediately.

The NSA’s section 215 surveillance program was aimed at the collection of metadata, or non-content call information. In relation to phone records, metadata may include information about who you are communicating with (by phone or text), at what time, how long a call lasts, and the location of both parties.

The Fourth Amendment guarantees that the government will not intrude on a person without rationale. Recognizing that some human activity is, by its nature, open to the public, the Supreme Court held in the Katz v. United States that Fourth Amendment protections only applied where a person had a “reasonable expectation of privacy.”

On a small scale, the warrantless collection of metadata has been allowed under a Fourth Amendment legal principle known as the “third party doctrine.” The third party doctrine, in very simple terms, stands for the proposition that a person has no reasonable expectation of privacy in information that is knowingly revealed to a third party. This applies, for example, when you place a phone call: the phone number is essentially treated as a routing number given to a telecommunications carrier, such as AT&T or Verizon, to allow it to connect you to the party at the other end. This is exactly what happened in a case from 1979, Smith v. Maryland, where the Supreme Court upheld the warrantless collection of metadata on a single telephone line for a discrete period of time.

The rationale that, at least to the Court, buttressed the third party doctrine in Smith v. Maryland, does not support the same finding in the case of the NSA’s section 215 surveillance program. Massive amounts of data gathered, over time, has proven to reveal intimate details about a person’s life that could not previously have been ascertained. Some experts have speculated that the metadata gathered under the NSA’s section 215 surveillance program is actually more sensitive than the content of the telephone calls themselves. In recent cases, like US v. Jones (2012) and Jardines v. US (2013), Supreme Court justices like Justice Sotomayor and Justice Kagan have questioned the continued application of the third party doctrine and expressed a willingness to overrule the third party doctrine in light of today’s technology that allows for persistent, dragnet surveillance.

Since the third party doctrine cannot rescue the NSA’s section 215 surveillance program from the realm of unconstitutionality, the program can no longer continue. Any legal document that would justify the collection of phone records on all individuals within the United States would undoubtedly fall into the category of an unlawful general warrant and would be, prima facie, unreasonable. The Foreign Intelligence Surveillance Court has held previously that NSA-led surveillance programs were inconsistent with the Fourth Amendment, and the section 215 program should end up in the same surveillance graveyard.

By walking back the NSA’s section 215 surveillance program, we can restore a modicum of privacy protection to the communications of all individuals. Notably, the policy can be discarded without seriously impacting legitimate law enforcement or terrorism investigations. The government has never demonstrated why they must collect all of the metadata for phone calls across the Country in order to investigate terrorist activities. In fact, the justifications the government has invoked stand for the opposite conclusion – that a targeted surveillance program, such as what is anticipated under the language of section 215, would allow the NSA to investigate terror threats. What abandoning the policy would impact is the surveillance of millions of innocent individuals who are having their everyday communications unknowingly, unlawfully, and unconstitutionally sucked up into a vacuum of government databases.

Amie Stepanovich is the Director of the Electronic Privacy Information Center’s Domestic Surveillance Project.