The Fourth Amendment to the US Constitution is short and to the point.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The phrases I italicized state quite clearly that you can only search a person’s private possessions if you get a warrant from a judge and that warrant must have as its basis a sworn oath that there is probable cause to suspect that there is evidence to be found, and that what is to be searched has to be clearly specified in advance. It is meant to prevent the government from simply invading people’s privacy at random, hoping to find something incriminating. [UPDATE: See the comment by dmclean for a more sophisticated analysis of what is allowed and not allowed by the Fourth Amendment.]
On the face of it, the widespread and indiscriminate scooping up of people’s communications is a clear violation of the Fourth Amendment. But up to now, the US government has successfully defended itself against these charges, not on the merits of their case, but by using the technical argument of standing to get the complaints dismissed. The government invoked national security to refuse to disclose whether it had any such surveillance program at all and claimed that the plaintiffs could not prove that they had been spied upon and suffered any harm and thus lacked standing to sue. This strange argument was accepted by the courts, since no one wants to be accused of jeopardizing national security and blamed when and if any attack should occur.
That government defense has now fallen apart with the revelations by Edward Snowden, and the US government has been forced to acknowledge the existence of the spying program, with the office of the Director of National Intelligence issuing a statement saying that the government has asked for, and received, permission from the FISA court “to collect telephony metadata in bulk“. [My italics-MS]
A new round of legal challenges against the spying program is in the works so what will the government do now? It is shifting the goal posts. The US now plans to defend itself by saying that such collection is justified because it is in the ‘public interest’, “does not breach the constitutional rights of Americans and cannot be challenged in a court of law”. It further goes on to argue that the plaintiffs have standing to sue only if they can prove that the NSA not only collected their personal data but actually analyzed it. Since the analysis part is of course still done in secret, it brings us back to square one.
Congress is not the only venue for challenges to the NSA bulk surveillance. Lawsuits filed in New York and California federal courts by the ACLU and the Electronic Frontier Foundation challenge the legality and constitutionality of the phone records dragnet.
The Justice Department has already argued in New York that the phone records collection cannot be challenged in court unless litigants can prove not merely that their phone data was collected but that it was analyzed by NSA, a standard that would make the program unreviewable since the analysis occurs in secret.
The government argued in the preliminary hearing that it was in the process of deciding what documents to declassify and hence that there was no reason for a speedy trial. The judge rejected the government’s attempts to delay the start and has set a trial date for November 1.
The Snowden revelations may result in the courts being less deferential and more skeptical to claims of national security concerns by the government. At least I hope it does.