Bulk Metadata Collection: Statutory and Constitutional Considerations

Abstract

Part I of this article begins by pointing out that the reason Congress introduced FISA was to make use of new technologies and to enable the intelligence community to obtain information vital to U.S. national security, while preventing the NSA and other federal intelligence-gathering entities from engaging in broad domestic surveillance. The legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that accompanied the Cold War and the rapid expansion in communications technologies.

Congress circumscribed the NSA’s authorities by limiting them to foreign intelligence gathering. It required that the target be a foreign power or an agent thereof, insisted that such claims be supported by probable cause, and heightened the protections afforded to the domestic collection of U.S. citizens’ information. Initially focused on electronic surveillance, FISA expanded over time to incorporate physical searches, pen registers and trap and trace, and business records and tangible goods.

The NSA program reflects neither the particularization required by Congress prior to acquisition of information, nor the role anticipated by Congress for the Foreign Intelligence Surveillance Court and Court of Review.

The bulk collection program, moreover, as pointed out in Part II of this Article, violates the statutory language in three important ways: (a) it fails to satisfy the requirement that the records sought “are relevant to an authorized investigation”; (b) it fails to satisfy the statutory provision that requires that information sought could be obtained via subpoena duces tecum; and (c) it bypasses the statutory framing for pen registers and trap and trace devices.

Part III of this Article suggests that the bulk collection of U.S. citizens’ metadata also gives rise to serious constitutional concerns.

Further examining the Supreme Court’s jurisprudence, Part III goes on to note that over the past decade, tension has emerged between considering new technologies from the perspective of trespass doctrine or from the application of Katz’s reasonable expectation of privacy test. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs, divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines to the telephony metadata program.

Under trespass doctrine, the primary order for the program amounts to a general warrant — the elimination of which was the aim of the Fourth Amendment. In light of social norms, it is also a digital trespass on individuals’ private spheres.

Under Katz, in turn, Americans do not expect that their telephony metadata will be collected and analyzed. Indeed, most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. The courts also have begun to recognize, in a variety of contexts, the greater incursions into privacy represented by new technologies.

A variant of the government’s argument suggests that the mere acquisition of data, absent human intervention, means that it is not a search. There are multiple problems with this approach, not least of which are that the Supreme Court has never carved out an automation exception; that privacy interests are determined from the perspective of the individual, not the government; and that the decision to collect the information is replete with human interaction. Citations to the usefulness of such information fail to extract the program from a Constitutional abyss.

Part IV concludes this Article by calling for an end to the telephony metadata program and the implementation of FISA reform to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of U.S. law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs”, and requiring the government to demonstrate past effectiveness prior to renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.

Keywords: intelligence surveillance, security, privacy, terrorism, probable cause, national security, constitutional law, criminal law

JEL Classification: K00, K14, H56, K39