NSA Data Farming Unconstitutional?

I teach constitutional criminal procedure at a law school. So, when a ruling comes down from a federal court that concerns the Fourth Amendment, I am interested. Recently, a federal district court judge in the federal D.C. circuit ruled that the collection of cell phone records from the cell companies was a violation of the Fourth Amendment. As much as I like to see limits placed on government when they intrude into our lives, I have to say this judge is wrong. I will tell you why, but first I gotta talk a little about the Fourth Amendment.





The Fourth says that a person shall be secure in their persons, houses, papers and affects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause particularly describing the places to be searched and the things to be seized. The Fourth Amendment prohibits Unreasonablesearches. So for the Fourth Amendment to bar the seizure of something by the government, there first has to be a "search" and that search must be "unreasonable" Fair enough.





A bunch of years ago, the U.S. Supreme Court ruled in Katz v. U.S. that the Fourth Amendment "protects people, not places" . Justice Stewart made a profound statement in this landmark case when he said "What a person knowingly exposes to the public even in their home or office, is not subject to the Fourth Amendment. What a person asserts as private, even in a public place may be protected by the Fourth" This is not a new concept for the court, but the first time the court has stated this in clear language. So, keep this in mind as we move along.




Now if we believe the NSA, they claim they are not listening to the content of phone calls, only seizing the raw data showing the phone numbers of the phones used, the length of the call, and the location of the two phones. If this is true, they are collecting the data for storage since the cell phone companies destroy this data about every 30 days or so, so, they say, if they don't store this raw data, then it will be lost forever. Now, they also say that if they develop probable cause to believe a crime is afoot (using the language of Terry v Ohio), they can apply for a search warrant, and if the court finds just cause, the court can issue a search warrant to look deeper into the specific data related to their probable cause finding. No P.C., no content searches.

Even before Katz, the U.S. Supreme Court ruled that law enforcement must have a search warrant to listen to private phone conversations, but also ruled that "Pen Register" type data did not require a search warrant to collect. You see, the court reasoned, it is not an unreasonable search to look at, as Katz said, those things that are knowingly exposed to the public. When you picked up your old land line phone, dial a number to another land line phone, that data is recorded at the old land line phone company. That is called pen register data. Cops have for decades been able to get from your good 'ole phone company the time, date, number dialed and length of your calls without a search warrant. This data was deemed to be knowingly exposed to the public.

Move ahead to now and apply that ruling and logic to the cell phone age. The data mining or collection of this type of information by the NSA is actually no different than what was collected in the '40's and 50's by ma Bell and turned over to the cops, constitutionally, without a search warrant. It was not deemed a search by Fourth Amendment standards. SO, if we can believe the NSA that they are simply storing this massive level of data until some day if and when they have probable cause to get the FISA court to issue a search warrant for the content of the calls, there is no Fourth Amendment implication.

Now, you may not like the Katz case ruling from 1976 or the pen register case from even longer ago, they are the law of the land and have been upheld countless times since they were decided. The recent case will undoubtedly go to the Federal District Court of Appeals for the D.C. Circuit. With the new stacked court in D.C., they might just sustain the trial courts ruling. But, I predict that if this happens, the U.S. Supreme Court will reverse this decision. I think the Supreme's would like to sustain the decision here since they appear to becoming increasingly concerned about government intrusion into individual liberties, but unless they overturn 60 years of precedent, they have to overturn this decision.

A Slight Political Comment

OK, first, this blog is to discuss legal issues and I have been lazy and not posted as much as I should. I have tried to stay away from political issues, mostly. That said, I could not resist posting the following comment written by California attorney Kurt Schlicter. If you are left of center politically, you may not like the following. I urge you to read it a time or two. It may provide you some thought for you and your kids future, or their lack of one. Or, of course, simply don't read it..... You Millenials voted for Obama by a margin of 28 percent, which will make it a lot easier for me to accept the benefits you will be paying for. We warned you that liberalism was a scam designed to take the fruits of your labor and transfer it to us, the older, established generation. Oh, and also to the couch-dwelling, Democrat-voting losers who live off of food stamps and order junk from QVC with their Obamaphones. You didn’t listen to us. Maybe you’ll listen to pain. I have been told that being hard on you Millennials will turn you against conservatism, that I should offer you a positive, hopeful message that avoids the touchy problem of your manifest stupidity. No. There’s no sugar-coating it – your votes for Democrats have ensured that you are the first generation in American history that will fail to exceed what their parents attained. Embracing liberalism was a stupid thing to do, done for the stupidest of reasons, and I will now let you subsidize my affluent lifestyle without a shred of guilt. I’m a 48 year old trial lawyer living on the coast in California – I should have “Hope and Change” tattooed on my glutes. I’d have an excuse to be lib-curious, but you Millennials? Why do you support an ideology that pillages you to pay-off Democrat constituencies? Your time in the indoctrination factories of academia trained you in a form of “critical thinking” that is neither. Somehow, you came to embrace the bizarre notion that conservatives are psychotic Jesus freaks who want to Footloosisze America into a land of mandatory Sunday school and no dancing. But liberals, in contrast, are nice. Obama is cool. You chose petty fascism with a smile. Not a lot of thought went into it. Facts, evidence – these were mere distractions from the feelings-based validation that came from rejecting us wicked conservatives. What did you get? The chance to be forced to buy health insurance you don’t want at inflated rates so my rates can be lower. You get to pay more out of your monthly barista take – liberalism ensured that the tanked job market foreclosed a real career – so that I get to pay less out of my lawyer checks. Thanks, suckers. You fume that conservatives want to spy on you in your bedrooms. Leaving aside the fact that that your tacky boudoir fumblings are the last thing conservatives care about, have you noticed how your precious Big Brother spies on your doings everywhere else? But who cares about that – Mumford & Sons totally digs Obama! Don’t even get me started on your crappy music. Enjoy your student loans, Millennials! We tried to tell you that it was a Democrat scam designed to subsidize liberal academia by allowing you to go into decades of crushing debt to pay for a bachelors in Ancient Guatemalan Gender Identity Issues. Good plan. Now fetch my latte – I’m in a hurry to get to my corner office. And I’ll leave you a tip – next time you decide to vote for a liberal, first be born in 1964. Don’t think that I’m happy about this. I came to Los Angeles after the Gulf War. I had a car and a few bucks I had saved in the desert which went right into paying for Loyola Law School. I had no contacts and no money, but I knew I had endless opportunity. I worked hard. I could start a business. I could get credit. I could – and did – build my own future. But can you? Liberalism, with its impoverishing redistribution, crippling regulations and the debt it suckered you into undertaking, has ensured that most of you can’t. You live with your parents, and Obamacare encourages sponging until you are 26 years old. At 26, I was leading Americans in a war, not begging mommy to pay my bills. The liberals want you to be eternal man-children, wearing cargo shorts and passively pumping money into their socialized medicine nightmare in return for “Brosurance” you don’t want or need. It breaks my heart to see the young lawyers I hire hobbled by six figures of debt. But hey, your desperation works fine for us established folks. I got 297 applications for a junior associate position. Let me say that again – 297. Most of them weren’t even practicing law – they were brewing coffee, not writing briefs. Now, I understand that most of you learned nothing but liberal clichés in college, but take a guess: As an employer, are the salaries I pay generally more or less when I have 297 people competing for each job? So feel free to keep voting for the liberals who keep you in chains. I’ll take my cheaper insurance, my future Social Security checks, and the other benefits that come from being established without guilt. The guys who you squander your votes upon certainly won’t change that equation. You’ll tread water in life, but hey, at least those conservatives won’t be in charge! Thanks again, suckers. Now get off my lawn.