Bulk Metadata Collection: Statutory and Constitutional Considerations

INTRODUCTION I. BULK COLLECTION IN THE CONTEXT OF FISA'S GENERAL APPROACH A. Prior Domestic Surveillance 1. NSA Programs a. Project MINARET b. Operation SHAMROCK 2. Broader Context B. Protections Built into FISA 1. Entity Targeted Prior to Acquisition 2. Probable Cause and Showing of Criminal Wrongdoing Prior to Collection 3. Minimization Procedures for Acquisition and Retention 4. Establishment of the Foreign Intelligence Surveillance Court and Court of Review C. Subsequent Amendment 1. Physical Search, Pen-Trap 2. Business Records, Tangible Goods, and Section 215 D. Broad Surveillance in Place of Particularization 1. Wholesale Collection of Information 2. Absence of Prior Targeting 3. No Higher Threshold for U.S. Persons E. Role of the Foreign Intelligence Surveillance Court 1. Reliance on NS A to Ascertain Reasonable, Articulable Suspicion a. Failure to Report Initial Noncompliance b. Further Noncompliance c. FISC Response d. Technological Gap 2. Issuance of Detailed Legal Reasoning and Creation of Precedent 3. Judicial Design a. Appointments b. Order Rate II. Bulk Collection and FISA's Statutory Provisions A. "Relevant to an Authorized Investigation 1. Relevance Standard 2. Connection to "an Authorized Investigation a. Collection of the Information b. Specificity c. Future Authorized Investigations B. Subpoena Duces Tecum 1. Fishing Expeditions 2. Specificity 3. Past Crimes 4. March 2009 FISC Opinion C. Evisceration of Pen-Trap Provisions D. Potential Violation of Other Provisions of Criminal Law III. Constitutional Considerations A. The Problem with Smith v. Maryland B. More Intrusive Technologies and Their Impact on Privacy C. Judicial Tension: Trespass and Katz's Reasonable Expectation of Privacy 1. The Prohibition on General Warrants 2. Search of Metadata and the Reasonable Expectation of Privacy D. The Proverbial Needle in the Haystack IV. Conclusion INTRODUCTION On May 24, 2006, the Foreign Intelligence Surveillance Court (FISC) approved an FBI application for an order, pursuant to 50 U.S.C. [section] 1861, requiring Verizon to turn over all telephony metadata to the National Security Agency. (1) The Court subsequently approved similar applications for all major U.S. telecommunication service providers. Over the next seven years, FISC issued orders renewing the bulk collection program thirty-four times. (2) Almost all of the information obtained related to the activities of law-abiding persons who were not the subjects of any investigation. (3) This program remained secret until mid-2013, when a combination of leaks by Edward Snowden, a former National Security Agency (NSA) employee, and Freedom of Information Act litigation launched by the Electronic Frontier Foundation, forced key documents into the public domain. (4) In response, the Obama Administration issued statements, fact sheets, redacted FISC opinions, and even a White Paper, acknowledging the existence of the program and arguing that it is both legal and constitutional. (5) According to these documents, the purpose of the telephony metadata program is to collect information related to counterterrorism efforts and foreign intelligence. (6) These data include all communications routing information, including (but not limited to) session identifying information (for example, originating and terminating telephone number, identity of the communications device, etc. …