- Q: So, what's the constitutional basis for NSA surveillance?
- A: The government has maintained that the metadata program is both legal and constitutional. After all, a court – the Foreign Intelligence Surveillance Court, which meets in secret -- issued the order that compels Verizon to produce phone call records.
Director of National Intelligence James Clapper last week released a statement defending the metadata program:
“There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties,” Clapper wrote. “The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court. By statute, the Court is empowered to determine the legality of the program.”
But the constitutionality of the program has been challenged. The ACLU said in a lawsuit this week that the program violates the First and Fourth Amendments.
As the Associated Press noted in a piece exploring the legal issues, though, there is a 1979 Supreme Court ruling that obtaining certain phone data from a telecom does not qualify as a search under the Fourth Amendment. That doesn’t mean the government can get any information whenever it wants; it just means the government doesn’t need to show probable cause. A more recent concurrence written by Justice Sonia Sotomayor suggested that the court’s previous rulings on privacy issues should be reconsidered for the digital age.
We asked University of Idaho law professor Richard Seamon for his take on the issue explain further, and here’s what he had to say:
“There is debate about when the government’s gathering of personal information even qualifies as a ‘search or seizure’ covered by the Fourth Amendment. For example, the Fourth Amendment probably does not apply at all when the government simply collects information that’s already been made public, on places like Facebook. Still, hard questions can arise about when information has been made public. For example, when you dial a phone number, you disclose to the phone company: your own phone number, the phone number you are calling, the duration of the call, and the time of day. The government argues that because you have disclosed information to a third party, you have made it public, and so the Fourth Amendment does not even apply when the government asks the phone company for that information. In effect, by telling anyone anything, you ‘assume the risk’ it may fall into the hands of the government. As Orwellian as that seems, the U.S. Supreme Court has upheld this ‘assumption of risk’ theory.”
College of William and Mary associate professor of law Jeffrey Bellin agreed there is a clear precedent for government collection of metadata — and added that the Fourth Amendment might not protect content shared online either. His explanation:
“In 1979, the Supreme Court ruled that the government can collect non-content information like the numbers dialed from a phone, without a warrant or probable cause. The government will argue this ruling (on steroids) supports its collection of Verizon (and others’) records of the identities of the parties to a call, call duration, etc. If the government is also accessing content information (such as the substance of emails, as opposed to merely the address fields, time and date, etc.) without a warrant supported by probable cause, the constitutional waters get murky. Still the government can rely on the Supreme Court’s ‘third-party’ doctrine. Third-party doctrine says there is no Fourth Amendment protection (and no requirement of a warrant or probable cause) if you share your secrets with someone else, such as an informant, and that person conveys your information to the government. Just think (creatively) of Facebook, Google et al. as the informants in this scenario, and keep that notion in mind the next time you post a status update.”
- Q: When did this all begin?
- Q: How long does the NSA store personal data?
- Q: Is data constantly analyzed?
Correction 6/13: We had previously said the government's position on surveillance is that once you disclose your data to a third party, it becomes public. In fact, the government does face restrictions and court oversight on getting data; they just don’t need to show probable cause.