13 Jun 2013

Does The NSA Surveillance Violate The Fourth Amendment Rights?

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Since Edward Snowden, former NSA contractor exposed the extent of the NSA surveillance program; the media coverage has been inundated with a flurry of questions and political pundits making hay on putting forth their party’s talking points to capitalize on the scandal. Americans are asking themselves does the NSA surveillance violate the Fourth Amendment rights against unreasonable search and seizure.

The Fourth Amendment and Legal Definitions

The Fourth Amendment states: 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.

It seems pretty straightforward for the average person until legal definitions are introduced into the conversation. The definitions for persons, houses, papers, effects and unreasonable all affect how the Fourth Amendment is interpreted by the government.

For example, under some aspects of the law, corporations are considered persons, yet most people do not consider corporations a person.
During the time that the amendment was written, all communications were either transmitted from person to person or written and printed onto paper or parchment. Advances in technological capabilities created new opportunities for government exploitation and challenges for the law to catch up to these advances.

Why the Fourth Amendment Was Written

During the colonial era of America, British officials in an effort to collect taxes and catch smugglers would issue warrants based upon the suspicions of that individual official allowing him the discretion of what and who would be searched and what property could be seized, even the length of time searches and seizures could occur. In some cases, there was intentional abuse of this authority, and in other cases the zealousness of the official in pursuing wrongdoers resulted in violation of what the founders described as natural rights, some of which are now described in the Bill of Rights.

The Supreme Court has wrestled with this issue over the centuries, with the pendulum swinging both to widen and then to narrow the scope of government searches and seizures. As technology has advanced, the Supreme Court has found that the Fourth Amendment protections are for persons, rather than places subject to a person’s reasonable expectation of privacy and are recognizing that technological capabilities have significantly threatened the spirit and letter of Fourth Amendment protections.

For example, in the case of “Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, the police attached a listening device to the outside of a public telephone booth where the defendant was later recorded making inculpatory statements. The Court declared this type of warrantless surveillance unconstitutional. The Court emphasized that the Fourth Amendment protects persons, not places, and held that the amendment’s protections extend to any place where an individual maintains a reasonable expectation of privacy. The Court determined that in Katz, the defendant maintained a reasonable expectation of privacy in both the particular conversation he had and the public telephone booth where it took place. Katz made government electronic surveillance, and legislation authorizing it, subject to the strictures of the Fourth Amendment.” http://legal-dictionary.thefreedictionary.com/Electronic+Surveillance

The National Security Exception,

One of the constitutionally mandated duties of the federal government is to protect the nation’s security. This task can conflict with the protections of the Fourth Amendment, for example adversarial nations sending spies to infiltrate our government to defeat military, intelligence and other national security apparatus. Also contemplated were efforts by individuals or groups to cause the government to be overthrown from within the country.

This is where the question of does the NSA surveillance violate the Fourth Amendment rights arises. The First Amendment right to assemble, petition the government for redress of grievances, as well as the Fourth Amendment places a significant challenge to balancing those fundamental rights with the national security of the United States. How national security threats are defined, what conduct constitutes inciting insurrection or a threat to national security and what criteria establishes lawful government response are an important area to study to ensure that abuses are not being permitted in the name of national security.

Going back to the colonial experience of blanket searches and seizures of open ended duration and scope, the NSA’s collection of bulk meta data from phone service providers, as well as data mining of vast amounts of information from the internet including emails, social media sites and more is directing attention to government conduct that led to the writing of the Fourth Amendment in the first place.

The question of does the NSA surveillance violate the Fourth Amendment rights in its current activities is already being addressed through congressional hearings, class action lawsuits and the political decisions of the American people. Where the fine line between what constitutes legitimate national security concerns and the right of the people to be secure in their person, houses, papers and effects remains to be seen.

Given the recent abuses by the IRS alleging that individuals and groups were targeted by government agents based upon political beliefs, as well as other government abuses, the pendulum seems to be swinging towards restraining government excesses. Political winds are shifting and politicians who wish to remain in office are scrambling to keep up.

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What are your thoughts on balancing national security needs with Fourth Amendment search and seizure protections? Are your decisions on government surveillance programs affected by the conduct of political leaders? Given the extent of the NSA programs, what do you think should be changed, if anything? I welcome your thoughts and comments below.

One Response to “Does The NSA Surveillance Violate The Fourth Amendment Rights?”

  1. RobertM says:

    I am a former SIGINTer (25 years) as well as an ex-beat cop. Of course, I will not go into specifics which might reveal classified information, but I can say that there are very, very strong restrictions against collecting against “US persons” (a catchall term which encompasses legal aliens and citizens). It was one of the foundations of our profession and we were required to train every year to relearn the specifics of that restriction.

    If someone in NSA is doing that, they are wrong and criminal and operating outside the NSA umbrella. If caught, they must be punished severely.

    In my opinion, the reaction of the general public has been shrill and, of course, uninformed, ready to attribute nothing but evil intentions to NSA and its professionals. I find that deeply insulting. I worked for 25 years (and longer. I work in intel/security still), many times in hazardous environments, protecting this country. Neither I nor any of my colleagues would dream of doing the things said of us.

    The bottom line is it is impossible to have a national discussion on this subject because so much of it is classified. Rightly so.

    Oh, and Edward Snowden is a cowardly traitor who deserves to be executed. If he really had courage he would have done what he did and then stood tall IN THE USA. Same goes for his buddy Glen Greenwald. They hate the US and ascribe only the most evil intentions to every part of its government.