Beyond Standing: How National Security Surveillance Undermines the Reporter's Privilege and the Free Press
23 Pages Posted: 1 Apr 2015 Last revised: 16 Sep 2015
Date Written: March 31, 2015
Challenges to national security surveillance pursuant to Section 215 of the Foreign Intelligence Surveillance Act (FISA) are percolating throughout the federal courts. Section 215 authorizes the collection of “business records,” including telephony metadata, for an authorized investigation to obtain foreign intelligence information. Some of the challenges to the constitutionality of this statute raise interrelated First and Fourth Amendment claims, generally focusing on the chilling effect caused by surveillance and arguing that strict scrutiny ought to apply where First Amendment rights are at stake.
Historically, the courts have held that Fourth Amendment requirements, when applied with “scrupulous exactitude,” are adequate to protect First Amendment interests. But what protections are in place when the Fourth Amendment’s warrant and reasonableness requirements do not apply? Although metadata surveillance does not trigger Fourth Amendment protections, it nonetheless has First Amendment implications. This Article addresses a discrete subset of First Amendment interests affected by surveillance: those of the press. In Part I of this Article, I describe and summarize the full panoply of ways in which national security surveillance harms the free press. Even the collection of non-content information, or metadata, can reveal a journalist’s sources and expose confidential relationships and communications. These harms, I argue, are not speculative and remote, but concrete and specific and therefore cognizable by the courts.
In Part II, I argue that the Government’s position, frequently expressed in merits-stage briefing, that surveillance that is consistent with the Fourth Amendment per se does not violate the First Amendment is constitutionally and factually inadequate in cases brought by the press. In challenges that implicate both the First and Fourth Amendments, the law requires a “particularized analysis” of both claims. Challenges arising out of the independent press rights afforded by the First Amendment are distinct from more general challenges to surveillance based on chilling effects. The case for independent treatment of First Amendment rights is also supported by the text and history of the Privacy Protection Act of 1980 and the reliance of the “scrupulous exactitude” cases upon the adequacy of the warrant requirement to protect those rights.
Finally, in Part III, I contend that when the Fourth Amendment’s warrant and reasonableness requirements do not apply, the First Amendment requires independent safeguards to fill the gap. I outline a few potential architectures for those safeguards and suggest that, while each of these structures have distinct normative appeal, the First Amendment requires, at a minimum, the opportunity for the press’s interests to be raised and litigated at a hearing before any court authorizing surveillance.
Keywords: media, national security, surveillance, newsgathering
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