1st Instead of 4th Amendment Challenge to NSA Data Collection

An email from the Electronic Frontier Foundation (EFF) received yesterday, 7/16/13, supports my analysis of Constitutional challenges to the collection of metadata from companies such as Verizon.

In an earlier post, I responded to a friend’s Facebook post which argued: “The 4th and 5th Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance.”  On Facebook and on this blog at “Wrong, Mr. Snowden, Just Wrong,” I explained that International Law simply does not criminalize espionage or military surveillance by nation states. Here, again, on Crossroads at “Fourth Amendment does not (yet) apply to NSA’s telephone call database (metadata)” we discussed the Fourth Amendment.   On Facebook, I stated that I couldn’t see a due process or other 5th Amendment violation, adding:

But, the very limited success that has been made in challenging orders for production of 3rd party records has been accomplished with FIRST Amendment arguments — that such surveillance chills speech or association.

Sure enough, yesterday the EFF wrote:

EFF just filed First Unitarian Church v. NSA, a new lawsuit opposing the illegal mass surveillance programs of the National Security Agency (NSA). We’re representing a broad group of American organizations—political associations, churches, and groups of ordinary folks—to draw much needed attention to the First Amendment violations caused by the unprecedented collection and searching of telephone records. (emphasis added)

No doubt, this is for the same reasons that privacy advocates labeled Section 215 of the USA PATRIOT Act the “Library Provision” when it never used the word “library” and had no special application to libraries.  But, the intersection of First Amendment jurisprudence with privavcy concerns made the strongest legal case.  In my classes, I would ask students to prioritize various types of records by how violated they would feel if the government obtained them.  Library records were never the top of the list.  But, calling Section 215 the “Medical Records Provision” would have implicated only the Fourth Amendment (a loser argument) and not the First.  Moreover, the First Amendment presents a rare exception to the rule that you can not invoke someone else’s Constitutional rights on their behalf.  Only you can have a case or controversy in federal courts about a violation of your Fourth Amendment rights.  Yahoo or Microsoft or whomever can not sue on your behalf over a Fourth Amendment violation.  But, a third party like Yahoo or Microsoft under some circumstances can invoke your First Amendment rights.

I think that the EFF lawyers are correct: their best chance of winning through litigation is the First Amendment.

My own view, just a personal one, is that it makes far better sense to have Congress add additional privacy protections by statute, rather than trying to reinterpret the Constitution.  That is exactly what the Electronic Communications Privacy Act and the Pen Register Act and arguably FISA itself do. The EFF and ACLU and others are trying to win in the Courts what they couldn’t win in the legislature.  But, maybe, now times have changed, and Congress might enact increased protections above subpoenas in criminal investigations and Section 1861 orders (what Section 215 amended) in foreign intelligence investigations.  Here is a simple example: All Circuits that reached the issue and the Supreme Court consistently held that the Government does not need any showing of anything to open mail at the border.  But, decades ago, Congress passed a statute that requires reasonable articulable suspicion to open first class mail as a border inspection.  To me, that was smart, rather than trying to create some Fourth Amendment exception to the border exception through litigation.  Obviously, Congress can pass privacy protections above what the Constitution requires, at least until you bump against plenary executive powers like military signals intelligence for the commander in chief during time of war.

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Authors

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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