The latest blockbuster Edward Snowden leak, that the NSA tracks 5 billion cell phone records a day, comes with a rebuttal from an “intelligence lawyer”: that the searches don’t fall under the Fourth Amendment umbrella. This is yet another claim of the Obama administration’s authority that doesn’t pass muster.
The comment from the anonymous source, “speaking with his agency’s permission,” is buried on the second page of the Washington Post‘s extensive report, discovered and highlighted by Wired’s David Kravets. Asked about the potential for illegality in this activity, the lawyer argued that the data “are not covered by the Fourth Amendment.” Another Post article notes that an intelligence lawyer told the authors of the Snowden report that “obviously there is no expectation of Fourth Amendment protections in communications metadata.”
The Fourth Amendment protects Americans from the government’s use of unreasonable search and seizures.
In the case at hand, the government–according to the Snowden files–“inadvertently” collects data from cell phones that gives away their location. It does this routinely so that each particular cell phone develops patterns and relationships with the world around it. In other words, the NSA can know, through your cell phone, where you are and who you are with at all times.
However, the goal is not overtly to keep track of where every person on earth is at all times, hence the “incidentally.” The goal is to follow potential threats or intelligence sources who may be in the vicinity of innocent bystanders whose cell phone signals beam up to the NSA anyway.
The Fourth Amendment has caused much controversy since the dawning of the internet and the advent of technology that makes unreasonable searches or seizures possible without any physical contact. For many years, courts considered an unreasonable search or seizure to require an entry or touching of property. As Kravets details, the physical aspect has become the edge of that Fourth Amendment umbrella in recent court cases, and the matter is, at best, unresolved.
For example, placing a GPS tracker on a car falls under the Fourth Amendment, because an agent of the government has to touch the car to put the tracker on it. Kravets also notes a case, Smith v. Maryland, favorable to the government in which the courts allowed authorities to compel a phone company to release records that led to the arrest of a purse snatcher. Phone records, of course, are significantly less physical than a GPS device, but there is an abyss of legal thought separating what scholars would consider permissible between the two scenarios.
Then there’s United States v. Jones, in which a majority of Supreme Court justices signed on to distinguish location tracking from the scenario in Smith v. Maryland, questioning the potential of a violation of an expectation of privacy that is clearly embedded in the amendment. That expectation of privacy is key in other cases involving technology used to penetrate personal spaces to detect crime. In the famous Kyllo case, for example, the Court decided that law enforcement requires warrants when using heat technology to discover areas where suspects may be growing marijuana.
That the use of a heat sensor is enough to trigger the Fourth Amendment makes the interception of satellite signals seem just as invasive, if not more so, given that the heat makeshift marijuana greenhouses emit carry significantly less personal information than the metadata cell phones emit.
This is not the first national security issue in which the Obama White House has argued its constitutional authority on shaky ground. Last February, NBC published a white paper detailing the Obama administration’s legal arguments supporting drone strikes on United States citizens without due process. The argument hinged on the definition of an “imminent threat,” arguing that the unique danger posed by al-Qaeda members freely allowed to travel in the United States by virtue of their citizenship outweighs their due process rights.