NSA spying is not clearly unconstitutional

Please note that this post is from 2013. Evaluate with care and in light of later events.

I’ve been noticing a trend to call the activities of the NSA — as revealed by Edward Snowden — “clearly unconstitutional.” I disagree.

While I think at least some of the NSA’s activities ought to be unconstitutional, I don’t believe they clearly violate the United States Constitution (the Fourth Amendment in particular) as it has been interpreted by the courts. (Caveat: as usual, the devil is in the details, and details are difficult to confirm.)

But some of their actions certainly violate the spirit of it! Even an originalist understanding like Justice Scalia’s lends support to this — how is the massive NSA operation different from colonial general warrants and writs of assistance used by agents of King George? (See also this memo at the EFF site.)

Reasonable Expectation of Privacy and Telephone Wiretaps

Perhaps ironically, the current problem with claiming constitutional protection is due to relatively recent interpretations of the Fourth Amendment in light of telephone wiretaps and the Court’s attempts to limit their reach. There is no “reasonable expectation of privacy” in information willingly shared with a third party, like a telecommunications company. Thus, when it comes to location data accessed by police without a warrant, the Fifth Circuit recently ruled that

consumers knowingly give up their location information to the telecommunications carrier every time they make a call or send a text message on their cellphones.

This is why so-called “pen register” information — numbers dialed, for example — is accessible to government agencies without a warrant.  In the words of the Supreme Court in Smith v. Maryland, 442 U.S. 735, 744 (1979), Fourth Amendment protection is lost when users have “voluntarily conveyed numerical information to the telephone company.”

Applied to Electronic Mail

Similar logic is applicable to at least the header information — sender, recipient, date, IP, etc. — of emails, for similar reasons. And while the actual internal message of a telephone call is protected — callers reasonably expect no one, not even the phone company, to listen to it — email has generally been considered more like a post card or a telegram, open to reading by third parties. Google, after all, scans email for keywords and displays ads. Email — rather like the earlier technology of telegrams — has not been granted constitutional protection by the Supreme Court, although it does have some statutory protection in limited circumstances (see ECPA, for example).

Should it be like this?

No, it should not. Congress should create greater statutory protections for today’s communications. Indeed, doing this might well lead the courts to eventually extend the Constitution as well. It happened before with postal mail.

Big Data Changes Nothing

Doing this kind of thing in bulk, “Big-Data” style, does not clearly change anything under current Supreme Court decisions, even though effectively more information can be inferred than from small-scale analysis. I expect most courts to continue to apply old frameworks even in the face of these new possibilities.

Should they?

No. The ability to reinterpret and distinguish precedent is the strength of an ever-evolving common-law system like that of the United States. With apologies to Justice Scalia, American courts have in the past evolved their understandings of the Constitution based on contemporary concerns — and they should continue to do so.

But Law Should Evolve

Despite my belief that at least some of what the NSA is doing ought to be covered by the Fourth Amendment, I just don’t think that’s where the law is right now. Even more certainly, I do not see how anything that’s been revealed clearly violates the Constitution. But the only way to push the law forward is through legislation and court challenges — and fortunately, I think, the U.S. Constitution, as interpreted through out common-law courts, is fully capable of flexing to incorporate new technologies and new challenges.

Note: What about the interception of communications to and from outside the United States? That has even less constitutional protection. For more about these issues, you may consult my 2008 article, Transnational Wiretaps and the Fourth Amendment.