Geof Stone on Constitutionality of NSA's Bulk Telephony Metadata Program
In my last three posts, I described the NSA's bulk telephony meta-data program, examined its pros and cons, and explained the recommendations of the President's Review Group.
In this post, I consider the constitutionality of the bulk telephony meta-data program, as it currently exists. This issue has garnered considerable attention in recent weeks, as two federal judges have reached diametrically opposed conclusions on the question. It turns out to be tricky. Get ready for a quick trip through the intricacies of the Fourth Amendment.
The Fourth Amendment provides: "The right of the people to be secure in their papers, houses, persons, and effects, against unreasonable searches and seizures, shall not be violated." The Supreme Court has held that, except in unusual circumstances, a search of a person's home, office, car, briefcase, pocket, mail, suitcase, etc. is presumptively "unreasonable" and therefore unconstitutional unless the government first obtains a warrant from a judge based on a finding that the government has probable cause to believe that a crime has been committed and that the search will discover evidence relating to that crime.