Writing at the Wall Street Journal, Randy Barnett makes a point that I think has been too neglected. The NSA’s seizure of data, including the “metadata”, logs of telephone calls, is unconstitutional:
All of this dangerously violates the most fundamental principles of our republican form of government. The Fourth Amendment has two parts: First, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Second, that “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.”
By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call “informational privacy.” Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual “terms of service.” These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers’ trust.
Some have retorted, “Well, what’s the harm? They’re just protecting us from terrorists.” It is a trespass and neither intent nor damage is required in cases of trespass. The act itself is the damage. It is little different from the local police walking into your house uninvited and just having a look around.
Process does not of itself convey legality. Here is Prof. Barnett’s prescription:
Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs. Both practices constitute a present danger to popular sovereignty and the rights retained by the people.
My prescription would be to restore government agents’ liability for civil damages in cases of trespass as was the case when the Bill of Rights was enacted. Today their incentive is to act excessively rather than be blamed for not doing enough. Liability for civil damages would restore the balance.
The telephone metadata is not my data, let alone my “papers.” It’s AT&T’s data. It lives in their computers, not mine. No one has taken anything from me. Nothing that belongs to me has been violated in any way.
Now, if they dip into my actual phone calls, make recording of my voice, sure, that’s a problem requiring (one hopes) the usual conditions – reasonable suspicion, warrants, etc…
Do they have a reasonable basis for a warrant if my number is contacted by Khalid Sheikh Mohammed’s number? Of course. Just like they’d have a basis for suspicion if they saw me drive over to his house. An observation they could make any time they want.
Since people get warrants before accessing the data, I suspect it will be difficult to press charges. If you are worrying about people illegally accessing the data w/o a warrant, they can do that at the internet/phone providers who are already storing this data. I think your best shot is to change the law that makes this data private property belonging to the providers. Then those who use them can designate how long they want their data stored, if at all. Then, the NSA should have to have a warrant to store specific data.
Steve
The only way to avoid some company knowing that X called Y is for X to stop making phone calls. Signal goes from my phone to a tower through a computer to whoever I’m calling. You can’t reasonably claim to own the trace left behind on an AT&T computer. It’s not your computer, not your routers, not your cell tower not your bandwidth. You might as well claim to own the sight of yourself driving down the street and the eyeballs that watch you doing so.
I guess we’ll see who’s right when it eventually gets to the Supremes. But I think is an example of Constitutional skueomorphism.
@Michael, may I offer a different perspective?
As I see it (from a creative musician/cognitive science background), a lot of the existing legal protections of property/ideas/intent/reputation have to do with attempting to protect analogical extensions of the self beyond the immediate physical boundaries.
Not just literal mappings of the physically here/now onto the there/then (see for example legal definitions of assault wrt credible threats), mind you, but also wider, more abstract expansions of the self: _my_ cello, my family, my reputation, my copyright protection, and the like.
Cognitive science suggests that people are, as a whole, not capable of _not_ making these kinds of analogical self-investments (universal process v individual content), nor of avoiding their attendant emotions, and IMHO much of the tangle of law has grown up in an attempt to deal with this inconvenience.
So, given humanity’s unavoidable analogical investments into our equally unavoidable digital traces, what I think we are seeing is the early stages of a developing legal conflict between the liberty of those emergent digital selves and the (established but also abstractly extended) concept of “ownership” of the literal hard data records themselves.
In other words, I don’t think you/we can dismiss the issue on grounds of data ownership and make it stick, no matter what the existing law says, because the analogical identity force is simply too powerful to be constrained that way. Human nature will always win that battle.
I’d be glad to read your thoughts.
Piercello:
I think the problem I’d have with that is that I’m living proof that we are not inevitably attached to these ephemera. I don’t care in the slightest that hundreds of thousands of employees at Visa, AT&T, Google, etc… have “my” metadata.
Having shrugged off their possession of such data, the only rational reason to be upset over the government having the same data is either, a) Dave’s legal/constitutional objection, or b) some harm done to me.
The constitutional issue is in my opinion in doubt and presumably the Supremes will get an appropriate case at some point. Or maybe the Congress will. . . Nah, okay that’s crazy talk.
Which is why I keep posing the question, “What harm?” Because harm is what I think matters. And I don’t see harm.
Thanks for responding. I’d counter by observing that it is the _process_ of attachment that is inevitable in humans, not any particular _target_ (which in this case is digital self-extension). Attachments happen, but they happen unpredictably. This is part of what makes generalizing from any one person’s attachments an unreliable guide.
Add to that observation three more—(1) habituated or acculturated attachments are functionally invisible to their owners; (2) the patchwork architectural logic of all such attachments is one that encompasses rationality, but is not bound by it; and (3) all such attachments, whether they are rationally coherent or not, become emotionally defended to some degree—and you begin to see why most political discourse turns poisonous.
Or, summarized: “despite all protestations to the contrary, there are no rational people, there are only rational arguments.” Our legal and social structures must reflect this if they is to remain viable.
Incidentally, mapping the above architectural logic is one of my current sidelines, although it is currently limited by music festival obligations. Once I assemble the more detailed argument I’ll link it if you like.
*are*
Prof. Barnett published over at Volokh, Are the NSA Blanket Data Seizures and the FISA Court’s Approval Unprecedented?
In the comments, Orin Kerr, a go-to guy on the 4th amendment, challenges Prof. Barnett’s understanding of 4th Amendment doctrine. I hoping he pens a reply in depth:
“As an aside, Randy, your Fourth Amendment analysis is wrong based on current Fourth Amendment doctrine, and it also seems very difficult to square your argument with an originalist or textualist approach to the Fourth Amendment.”
@sam, Barnett’s about big ideas; Kerr’s about describing where the law is and where it might reasonably go.
Except for that last bit: “it also seems very difficult to square your argument with an originalist or textualist approach” — that seems to me to be a direct jibe at the basis of RB’s really, really big idea (the constitution is a libertarian document).