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Is the NSA's Bulk Telephony Metadata Program Constitutional?

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In my last three posts, I described the NSA's bulk telephony meta-data program, examined its pros and cons, and explained the recommendations of the President's Review Group.

In this post, I consider the constitutionality of the bulk telephony meta-data program, as it currently exists. This issue has garnered considerable attention in recent weeks, as two federal judges have reached diametrically opposed conclusions on the question. It turns out to be tricky. Get ready for a quick trip through the intricacies of the Fourth Amendment.

The Fourth Amendment provides: "The right of the people to be secure in their papers, houses, persons, and effects, against unreasonable searches and seizures, shall not be violated." The Supreme Court has held that, except in unusual circumstances, a search of a person's home, office, car, briefcase, pocket, mail, suitcase, etc. is presumptively "unreasonable" and therefore unconstitutional unless the government first obtains a warrant from a judge based on a finding that the government has probable cause to believe that a crime has been committed and that the search will discover evidence relating to that crime.

The central question posed by the bulk telephony meta-data program is this: Is the government's collection of an individual's telephone call records from the individual's telephone service provider a "search" of that individual within the meaning of the Fourth Amendment? If not, then the Fourth Amendment is irrelevant. That is, the government has many ways of learning information about an individual; only those ways of learning information that constitute a "search" are governed by the Fourth Amendment. What, then, is a "search"?

In 1928, in Olmstead v. United States, the Supreme Court considered whether wiretapping constitutes a "search" within the meaning of the Fourth Amendment. Over the strong dissents of Justices Louis Brandeis and Oliver Wendell Holmes, the Court said "no."

A "search," the Court held, at least in the understanding of those who wrote the Fourth Amendment, is a physical intrusion into a physical space owned or controlled by the person searched. That, they ruled, is what the Fourth Amendment means by a "search." Because wiretapping is undertaken by tapping into a telephone company's phone line outside the targeted individual's home, it does not invade any physical space owned or controlled by the individual, and is there not a "search" of that individual within the meaning of the the Fourth Amendment.

If that is the definition of a "search," then it is easy to see why the bulk telephony meta-data program is not a "search." This is so because the government obtains this information, not by entering into any physical space owned or controlled by the individual, but by obtaining the calling data from the individual's telephone company. In so doing, it does not invade any physical space that is owned or controlled by the individual.

But it gets more complicated...

In 1967, the Supreme Court overruled Olmstead. In Katz v. United States, the Court declared that the Fourth Amendment "protects people, not places." It therefore held that, even without a physical intrusion into an individual's physical space, the government can engage in a "search" if its actions violate society's "reasonable expectations of privacy." This was a bold expansion of the potential reach of the Fourth Amendment.

Applying this new understanding of the meaning of a "search," the Court held that wiretapping is, indeed, a "search" within the meaning of the Fourth Amendment. This is so, the Court explained, because individuals have a reasonable expectation that the government will not invade their privacy by intercepting their phone calls. The Court therefore ruled that the government cannot constitutionally wiretap a telephone call without first obtaining a warrant based on a judicial finding of probable cause.

In effect, the Court in Katz adapted the meaning of the word "search" to take into account the impact of new forms of technology through which the government could invade individual privacy in ways that were undreamed of when the Fourth Amendment was adopted.

But Katz created a problem: How do we know what expectations of privacy are "reasonable"? Suppose, for example, a police officer follows a "suspicious" individual who is walking down the street. Is that a "search" within the meaning of the Fourth Amendment? Does the individual has a reasonable expectation of privacy that he won't be followed by a police officer when he walks in a public place?

In a series of decisions in the 1970s, the Supreme Court held that an individual has no "reasonable expectation of privacy" in information that he knowingly and voluntarily discloses to others. Thus, there is no "search" when the police officer observes the individual in public.

Applying that principle, the Court held in United States v. Miller (1976) that an individual has no reasonable expectation of privacy in his bank records, because he knowingly and voluntarily discloses his financial transactions to his bank, and in Smith v. Maryland (1979), the Court held that an individual has no reasonable expectation of privacy in his telephone company's records of his phone calls, because he knowingly and voluntarily discloses his calling data to his phone company.

Thus, when the government compels a telephone company to turn over an individual's calling records, this does not constitute a "search" of the individual, because the individual has no "reasonable expectation of privacy" in those records. It was the decisions in Miller and Smith that made possible the NSA's bulk telephony meta-data program. Get it?

The central disagreement between the two federal judges who just ruled on the constitutionality of the meta-data program turned in large part on the continuing validity and proper application of Miller and Smith. The question, in short, is whether the doctrine recognized in those decisions still makes sense in light of the vast changes in technology over the past 35 years?

One judge reasoned that the doctrine recognized by the Supreme Court in Miller and Smith remains the controlling law today, and that as a mere lower court judge he has no authority to disregard those precedents. He reasoned that if an individual had no reasonable expectation of privacy in his phone records in the 1970s, then he has no reasonable expectation of privacy in his phone records today. Period. End of case. If the Supreme Court wants to change the law, that's none of his business.

The other judge argued that the doctrine recognized by the Supreme Court in Miller and Smith must be reexamined in light of the dramatic changes in modern technology. The ability of the government to sweep up millions of phone records every day, this judge reasoned, poses a much greater threat to individual privacy than anything that was possible in the 1970s.

Although conceding that a lower court judge has no authority to overrule or disregard Supreme Court precedents, this judge concluded that the Supreme Court had never considered the precise question posed by the NSA's bulk telephony meta-data program, and that he therefore had to address that question as a matter of first principles -- while giving appropriate respect, of course, to the doctrine enunciated in Miller and Smith.

It is that issue -- how should a lower court judge apply a Supreme Court precedent in the face of changed circumstances? -- that was at the core of the disagreement between the two judges. This is always a vexing question. There is no simple "right" or "wrong" answer. On this issue, both judges had reasonable explanations for their competing conclusions on the question of precedent.

But that still leaves us with the more fundamental question: What should the Fourth Amendment mean in this context? In my next post, I will offer some thoughts on that question.