Why the NSA Data Seizures Are Unconstitutional

Due to the unauthorized leaks of classified information, we have come to learn that the National Security Agency (NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am not going to get into the details of these programs. Instead, I will limit my focus to what I consider to be the serious constitutional problem with any such program, regardless of the details: the fact that the NSA is demanding that private companies, with which virtually all Americans contract to provide their voice communications, turn over the records of every phone call that is made on their systems. (1) This metadata is then stored on NSA super computers for later analysis. (2) In this article, I am not going to address the legality of this program under existing statutes. Jim Harper of the Cato Institute and I have argued in an amicus brief that the NSA data collection program is illegal because it is not authorized by Section 215 of the Foreign Intelligence and Surveillance Act as it was modified by the USA PATRIOT Act. (3) Section 215 of the PATRIOT Act allows the Foreign Intelligence Surveillance Court (FISC) to issue orders requiring the production of tangible things upon satisfactory application by the FBI. The statutory language specifies that an application for a Section 215 order must include "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation...." (4) Because we maintain that Section 215 orders must be "relevant" to an already existing investigation, in our brief we contended that orders for the seizure of bulk metadata on every American for future analysis to uncover evidence of wrong doing are not authorized by the statute and are therefore illegal. (5) So far, however, the two federal district court judges who have considered challenges to the program in the Southern District of New York and in the District of Columbia have both held that, because Congress has not waived its sovereign immunity to allow the legality of Section 215 orders to be challenged in federal court, federal courts lack jurisdiction to hear a statutory challenge. (6) For this reason, this matter may need to be addressed by Congress. But these same two judges also held that citizens have standing to bring constitutional challenges to the collection of the telephone companies' records of their phone calls. (7) So my focus here will be limited to the constitutional issue raised by these blanket seizures of the private data on all Americans. Although the only surveillance program that has been challenged thus far concerns phone records, (8) the principle offered to support this data seizure applies as well to all other business records of our dealings, including our credit card transactions. Indeed, in upholding the constitutionality of the program, Judge William Pauley of the Southern District of New York cited cases that held that "an individual has no constitutionally protected expectation of privacy" in bank records, records given to an accountant, subscriber information provided to an internet service provider, and information from a home computer that is transmitted over the Internet or by email. (9) Imagine the chilling effect on liberty if everyone knew that the government is in possession of all this data about their private transactions on its super computers. The relationship between the citizens of the United States and their supposed agents or servants in government would be fundamentally reversed, turning We the People into mere subjects of our rulers. So there is a lot more at stake here than just this particular bulk data seizure program. With the challenge to the Affordable Care Act, we not only wanted to stop Obamacare from being implemented--which sadly we failed to do--we also wanted to defeat the limitless constitutional arguments that were being offered in its defense. …