Why NSA’s Bulk Data Seizures Are
Illegal and Unconstitutional
Randy E. Barnett* & Jim Harper**
The National Security Agency’s (“NSA”) data collection program, designed and built to collect information about every American’s telephone calls, stands on weak statutory footing and raises grave concerns under the Fourth and Fifth Amendments. If Congress does not revisit these programs, the courts should invalidate them.
I. The NSA Data Collection Program is Inconsistent with the Plain Meaning of the Statute and Congressional Intent Passing It
Section 215 of the USA-PATRIOT Act1 allows Foreign Intelligence and Surveillance Act judges (“FISA”) to issue orders requiring the production of tangible things upon satisfactory application by the FBI. The statutory language2 requires an investigation in existence at the time such a judge issues a Section 215 order. Because the NSA’s Section 215 orders do not pertain to an existing investigation, they are not authorized by the statute.
Section (b) of 50 U.S.C. § 1861 specifies that an application for a Section 215 order must include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation . . . .”3 In two ways, this language requires an investigation to pre-exist any such application.
First, the required statement of facts must show that the things sought “are relevant”4 to an investigation. It thus requires a showing at the time of application that the things sought are relevant to an investigation. This standard presumes and requires the existence of an investigation in progress at the time of application.
Second, the statement of facts required by 50 U.S.C. § 1861(b)(2)(A) must show that the application is relevant to an “authorized” investigation. It is impossible to determine that an investigation is or will be “authorized” if the investigation has not come into existence. Therefore, a FISA judge cannot properly conclude that a future investigation, including investigations arising from analyzing the seized data, met the standards of the statute.
Because the NSA’s Section 215 orders do not pertain to existing authorized investigations, they violate the plain language of the statute. In passing Section 215, Congress did not intend to create authority for collection of information beyond that which is relevant to an existing investigation. Report language accompanying a precursor of Section 215, clarifies Congress’s purposes:
The Administration had sought administrative subpoena authority without having to go to court. Instead, section 156 amends title 50 U.S.C. § 1861 by providing for an application to the FISA court for an order directing the production of tangible items such as books, records, papers, documents and other items upon certification to the court that the records sought are relevant to an ongoing foreign intelligence investigation.5
By its choice of language, Congress did not intend to allow applications with merely potential relevance to foreign intelligence generally. Instead it intended to restrict them to existing, discrete, “ongoing” investigations, not applications for general surveillance.
II. The NSA’s Section 215 Bulk Data Collection Orders are Unconstitutional
A. Blanket Data Seizures Are Modern Day General Warrants
The Fourth Amendment has two parts: First, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”6 And second, “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”7 The Fourth Amendment was adopted to prevent general or nonspecific warrants.
The Fourth Amendment requires the things to be searched or seized under a warrant to be described “particularly.”8 But the order issued to Verizon under the NSA data collection program requires the company to produce “on an ongoing daily basis … all call detail records.”9 Because they are not “particular,” such orders are the modern incarnation of the “general warrants” issued by the Crown to authorize searches of American colonists. As with general warrants, blanket seizure programs subject the private papers of innocent people to the risk of searches and exposure, without their knowledge and with no realistic prospect of a remedy.
The Founders thought that the seizure of “papers” for later perusal or “searching” was an abuse distinct from, but equivalent to, the use of general search warrants, which is why “papers” was included in the Fourth Amendment in addition to “effects” or personal property.10
[A]t the heart of Whig opposition to seizing papers was the belief that any search of papers, even for a specific criminal item, was a general search. It followed that any warrant to sift through documents is a general warrant, even if it is specific to the location of the trove and the item to be seized.11
Allowing blanket seizures of privately-held data would constitute an unprecedented legal and constitutional sea change that should be undertaken, if at all, only after robust public debate and a constitutional amendment that is itself worded specifically enough to govern the executive branch in the future. It is not a policy that should emerge from an advisory panel of judges to which the People are not privy.
B. Property and Contract Define When a Seizure Requires a Warrant
For good reason, the Fourth Amendment uses a possessive pronoun—“their”—to describe the “persons, houses, papers, and effects” it protects.12 People’s ownership of themselves and their things is an essential counterweight to state power. The Fourth Amendment has long and appropriately been administered with reference to property. Two terms ago, in United States v. Jones,13 the Supreme Court held that the “reasonable expectation of privacy” formulation from Katz v. United States14 does not supplant, but adds protection beyond the protection of one’s property from unreasonable searches and seizures. “[T]he Katz reasonable-expectation-of-privacy test,” wrote Justice Scalia, “has been added to, not substituted for, the common-law trespassory test.”15
While Katz has become the lodestar in current Fourth Amendment jurisprudence, the “reasonable expectations” language that now dominates the academic literature and case law actually appears, not in the majority opinion of the Court, but in a solo-concurrence by Justice Harlan. Harlan’s formulation has proven to be a weak rule for deciding cases. As Justice Alito observed in Jones, the “Katz expectation-of-privacy test . . . involves a degree of circularity, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks.”16 In addition, “the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations.”17
The “reasonable expectation of privacy” test reverses the inquiry required by the Fourth Amendment. Justice Stewart’s majority opinion in Katz properly rested on the physical protection that the defendant had given to his oral communications. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”18 What Katz
sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.19
Rather than airy and untethered speculations about “reasonable expectations,” the courts should return to the traditional—and more readily administrable—property and contract rights focus of Fourth Amendment protection reflected in the majority opinion in Katz. Courts should examine how parallels to the walls of the home and the phone booth in Katz conceal digital information are employed by the people to preserve their privacy.
In short, the physical and legal barriers people place around their information define both their actual and “reasonable” expectations of privacy and should provide the doctrinal touchstone of the search warrant requirement. When one has arranged one’s affairs using physics and the law of property and contract to conceal information from preying eyes, government agents may not use surreptitious means and outré technologies like thermal imaging20 to defeat those arrangements without obtaining a warrant that conforms to the requirement of the Fourth Amendment. In Jones, the Court took an important step in this direction. It should now recognize the privacy of informational data that has in fact, in the words of the Fourth Amendment, been “secure[d]” by sufficient physical and legal protections.
With this in mind, the Court should either adapt the third-party doctrine to modern circumstances or reject it altogether. Smith v. Maryland,21 which upheld the use of pen registers without a warrant, was a classic “reasonable expectation of privacy” case, and a paragon of its maladministration. Common experience shows that phone companies keep phone data private from everyone but the customer and a small circle of service providers that are bound to the phone companies’ privacy rules. The public “reasonably expects” these records are kept from government agencies absent a warrant and consents to disclose this information to phone companies on that condition.
Some members of the Supreme Court have already recognized Smith’s poor reasoning and its irreconcilability with the Information Age. As Justice Sotomayor noted in Jones, the third-party doctrine “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”22
With the NSA’s program of “pen registers for everyone,” yesterday’s tomorrow has already arrived. Smith v. Maryland and a third-party doctrine permitting blanket seizures of data that has been disclosed to a third party under contractual and regulatory restrictions is patently inapt for the age of mass storage of data accessed in secret by super computers.
III. The FISA Court is Inconsistent with the Due Process of Law
The procedures established by the Foreign Intelligence Surveillance Act do not provide communications companies and their customers the “due process of law” required by the Fifth Amendment. In contrast to the typical adjudication of a search warrant’s validity, the constitutionality of a massive program of data seizure is being adjudicated in secret. No targeted customer has the right to intervene and contest the case, nor even to read the decision purporting to uphold the constitutionality of the seizure of its data.
In the seminal case on the role of federal courts, the Supreme Court ruled: “A case or controversy, in order that the judicial power of the United States may be exercised thereon, implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.”23 The absence of a genuine “case or controvery” means that the FISA Court is not a genuine Article III court, but is instead simply a part of the executive branch. The deprivation of property by such a court in secret proceedings justified by secret orders and constitutional rulings is the antithesis of the Due Process of Law guaranteed by the Fifth Amendment.
In a republican form of government based on popular sovereignty, the people are the principals or masters and those in government are their agents or servants. For the people to control their servants, they must know what their servants are doing. The secrecy of these programs, and the proceedings by which their constitutionality is assessed, make it impossible to hold elected officials and appointed bureaucrats accountable. Internal governmental checks, and even secret congressional oversight, are no substitute for the sovereign people being the ultimate judge of their servants’ conduct in office.
Such judgment and control is impossible without the information that secret programs conceal. Without the recent leaks, the American public would have no idea of the existence of these programs, and it still cannot be certain of their scope. What we do know reveals that these programs are contrary to statute, and unconstitutional under any theory. The American people need relief from this unprecedented surveillance of them by their servants.
1 Pub. L. No. 107-56, 115 Stat. 272.
2 50 U.S.C. § 1861.
3 50 U.S.C. § 1861(b)(2)(A).
5 H.R. Rep. No. 107-236, pt. 1, at 61 (2001) (emphasis in original).
6 U.S. Const. amend. IV.
7 Id. (emphasis added).
9 In re: Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from (FISC) (Docket No. BR 13-80) (April 25, 2013), at 3.
10 See generally Donald A. Dripps, Dearest Property: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure, 103 J. Crim. L. & Criminology 49 (2013) (explaining how the seizure of papers to be later searched for evidence of criminality was considered to be a distinct but equally disturbing abuse than that of general warrants to search houses).
11 Id. at 104.
12 U.S. Const. amend. IV.
13 132 S. Ct. 945 (2012).
14 Katz v. United States, 389 U.S. 347 (1967).
15 Jones, 132 S. Ct. at 952. See also id. at 954-55, (Sotomayor, J. concurring) (“Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. Rather, even in the absence of a trespass, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” (quotations and citations omitted)).
16 Id. at 962 (Alito, J. concurring) (citations omitted).
18 Katz, 389 U.S. at 351 (emphasis added).
19 Id. at 352 (emphasis added).
20 See Kyllo v. United States, 533 U.S. 27 (2001).
21 Smith v. Maryland, 442 U.S. 735 (1979).
22 Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (citation omitted).
23 Muskrat v. United States, 219 U.S. 346 (1911) (citing Chisholm v. Georgia, 2 U.S. (2 Dall.) 431 (1793)).
*Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director, Georgetown Center for the Constitution. This essay was adapted from the Brief for Cato Institute as Amcius Curiae Supporting Petitioner, In re: Electronic Privacy Information Center, No. 13-58 (U.S. Aug. 12, 2013). We thank Jason Kestecher and Elizabeth Gusfa for their research assis-tance.
**Director of Information Policy Studies, Cato Institute.