Fourth Amendment does not (yet) apply to NSA’s telephone call database (metadata)

We may wish to make surveilance like revealed by the Verizon court order (leaked by Mr. Snowden) for call meta data illegal. But, it is not now. It is specifically authorized by a statute and it was ordered by judges appointed pursuant to Article III of the Constitution. More over the Supreme Court has repeatedly and consistently held that production of records about you in the hands of 3rd parties does not implicate your Constitutional rights. You have no 4th Amendment protections regarding those records, [unless you meet the Katz test.] Smith & Miller (Supreme Court cases) said that phone company records and bank records do not meet that test from Katz. [i.e., you do not have a reasonable expectation of privacy.] The ACLU keeps saying that “Section 215 of the Patriot Act is unconstitutional.” What they are really saying is that they believe that a correct interpretation of the Constitution would be to overrule well-settled Supreme Court precedent and find that people do have a reasonable expectation of privacy (both subjectively and one that society finds to be reasonable, Katz) in 3rd party records about them. The gist of the argument is that the amount of data shared today is so different quantitatively that there is also a qualitative difference. Everything about you is shared with a 3rd party now by the average person. But, make no mistake, any applicability of the Fourth Amendment to third party records would be an extreme break with settled precedent.

The Supreme Court wrote in Smith:

In Miller, for example, the Court held that a bank depositor has no “legitimate ‘expectation of privacy’ ” in financial information “voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business.” 425 U.S., at 442, 96 S.Ct., at 1624. The Court explained:

“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id., at 443, 96 S.Ct., at 1624.”

Because the depositor “assumed the risk” of disclosure, the Court held that it would be unreasonable for him to expect his financial records to remain private.

This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

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 ACLU is trying to win in the Courts what it 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 in foreign intelligence investigations. Here is a simple example: All Circuit Courts of Appeal which reached it 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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One Response to “Fourth Amendment does not (yet) apply to NSA’s telephone call database (metadata)”

  1. […] As contributors to this blog and cyber scholars across the nation have argued, “the Supreme Court has repeatedly and consistently held that production of records about you in the hands of third parties[,]” such as metadata housed by your phone company, “does not implicate your constitutional rights.  You have no 4th Amendment protections regarding those records, [unless you meet the Katz test.]”  This argument finds additional support in Supreme Court cases such as Smith v. Maryland (44 U.S. 735 (1979)) and United States v. Miller (425 U.S. 435 (1976)), where the Court held that no reasonable expectation of privacy exists over phone company or bank records.  In other words, searches of such records do not meet the Katz test for implicating the Constitution at all. […]

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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

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Christopher w. FolkChristopher W. Folk

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Jennifer A. CamilloJennifer A. Camillo

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