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.
