12/04/2013 04:59 pm ET Updated Feb 03, 2014

NSA Cellphone Tracking: What About the Fourth Amendment?

Barton Gellman just cracked open a story that's been on the horizon since the NSA leaks began: the agency is tracking the location of hundreds of millions of cellphones, including many owned by Americans.

The location tracking is supposed to be targeted at foreigners, but in practice the agency is unwilling or unable not to pick up many American's data as well:

The number of Americans whose locations are tracked as part of the NSA's collection of data overseas is impossible to determine from the Snowden documents alone, and senior intelligence officials declined to offer an estimate.

"It's awkward for us to try to provide any specific numbers," one intelligence official said in a telephone interview. An NSA spokeswoman who took part in the call cut in to say the agency has no way to calculate such a figure.

An intelligence lawyer, speaking with his agency's permission, said location data are obtained by methods "tuned to be looking outside the United States," a formulation he repeated three times. When U.S. cellphone data are collected, he said, the data are not covered by the Fourth Amendment, which protects Americans against unreasonable searches and seizures.

An intel lawyer (probably NSA, CIA or ODNI) claims tracking U.S. cellphone locations doesn't violate the Fourth Amendment. Weren't the Founding Fathers paranoiac revolutionaries who would have been scared out of their buckskin breeches by a government tracking our every move? Not according to the government, which maintains that cell site locations are just metadata, electronic flotsam not protected by a warrant requirement. In a domestic law enforcement setting, the courts have split as to whether that argument holds water.

The NSA's surveillance, however, was likely never approved by a court at all. The NSA likely believes it has sidestepped the Foreign Intelligence Surveillance Court's jurisdiction because it only "incidentally" collects an untold number of Americans' locations while targeting foreigners. And with no surveillance court oversight, as flawed as it might be, there is no check on the agency's reading of the Fourth Amendment.