Legal Features
A Historic Analysis of the Fourth Amendment’s Reasonable Expectations of Privacy Standards as It Relates to the NSA’s Surveillance Activities
In June 2013, the Guardian newspaper, utilizing documents disclosed by Edward Snowden, a former employee of a National Security Agency (NSA) contractor, reported that the FBI had obtained a ninety-day order from the Foreign Intelligence Surveillance Court (FISC) requiring Verizon Business to provide the NSA daily so-called telephone metadata on all their customers’ communications, although none were suspected of a connection with international terrorism or other wrongdoing. Later public revelations established that the order had been renewed thirty-six times since May 2006, and that companion FISC orders had been directed to all major telecommunications companies. This unprecedented intrusion into the activities that citizens heretofore considered private and personal is effected without any suspicion and without any limitation to information related to some known threat from a foreign actor considered dangerous to the United States.
While the FISC has uniformly upheld the constitutionality of the dragnet telephony metadata and search program of the NSA in non-adversary proceedings, Article III courts are divided at present. The United States Supreme Court has recently declared that the Fourth Amendment should be interpreted today to secure the same level of privacy protection as was reasonably expected of citizens when the Amendment was ratified in 1792. In making that assessment, law enforcement resources, investigative priorities, and technological and jurisdictional limitations on the government are all pertinent. As elaborated in the analysis linked below, the historical interpretation of the Fourth Amendment’s privacy guarantees suggests that the NSA’s bulk collection of telephone metadata violates the Constitution.
