When Greenwalds Attack! 10 Examples From His Past

[Galraedia]

37. The NSA programs and the Fourth Amendment

To the best understanding that we can reliably gather, the two NSA programs gather only metadata—they are not akin to wiretaps but pen registers. The programs are predicated on the creation and retention of metadata by telephone and internet service providers such as Verizon and Google in the ordinary course of their business activities. The government then subpoenas the metadata and stores it; the conditions under which the government later accesses that data are disputed, but that dispute need not detain us, for the Fourth Amendment regulates how government may obtain data, not what it can do with data once it has been obtained.

The programs therefore do not involve the government obtaining “your data,but rather business records—data about you—that is created and retained by third parties from whom you buy services. This distinction is critical because, by breaking the Fourth Amendment chain between the person whose activities are described in the metadata and the government, it obviates any Fourth Amendment claim. A few years ago, Volokh Conspirator Nick Rosenkrantz suggested a helpful framework for assessing claims that constitutional rights have been violated that I would sum up as the “grammar” of a rights violation: “What right (precisely), of whom, has been violated by who?” It’s a deceptively-simple question, but the NSA program shows its bite. In the present case, the right against unreasonable searches or seizures of the whom’s person, house, papers, and effects was allegedly violated. But who violated that right? Did Verizon violate it? Surely not. They collected the data, but Verizon is a private actor; it can collect whatever data it likes, subject to statute law. Did the government violate it? How? They didn’t search or seize the who‘s person, house, papers, and effects. They may have searched and/or seized Verizon’s papers and effects, but that’s a whole different whom. The gravamen of the Fourth Amendment protests is not that Verizon‘s Fourth Amendment rights were trespassed!

Three analogies might help illustrate why the Fourth Amendment claim can’t work. Suppose that you routinely use the services of a particular caterer for your parties. The caterer keeps records of each event it supplies, including what foods and drinks, etc. The FBI is suspicious that your parties involve something untoward, and so they obtain the caterer’s records to build a case against you. No FBI agent has yet come within a hundred miles of your person, house, papers, or effects, and yet, for you to say that the NSA program violates the fourth amendment, you must be ready to assert that the FBI’s seizure of the caterer’s records are a violation of your Fourth Amendment rights. Or suppose that you use FedEx for sending business mail, and let’s assume that FedEx logs each package that you send in its customer records. The Feds suspect that you’re up to no good. Now, if they intercept and open a package, without a warrant, your fourth amendment rights come into play. If, however, they obtain FedEx’s customer records, it’s hard to see how that violates your fourth amendment rights. They aren’t opening your mail, they’re obtaining data that describes your mail from a third party. That’s a precise analog of the PRISM program, so far as we currently understand it.

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