Geof Stone: "Why Bush Violated the Fourth Amendment, and Obama Has Not"

Why Bush Violated the Fourth Amendment, and Obama Has Not
Geoffrey R. Stone
The Daily Beast
July 1, 2013

There is a crucial difference between the Obama administration’s phone call data-mining program, which is constitutional under current law, and the Bush administration’s NSA surveillance program, which was clearly unconstitutional. Unlike the Obama program, which is limited to obtaining information about phone calls made and received from telephone companies, the Bush program authorized the government to wiretap private phone conversations. From a constitutional perspective, the difference is critical, and it is unfortunate that President Obama has not done a better job of explaining the distinction, and why his administration’s program does not violate the constitutional “right of privacy.”

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court has held that, at least presumptively, a search is “unreasonable” unless it is based on probable cause and a judicial warrant.

It would therefore seem that it violates the Fourth Amendment for the government to collect phone call records from phone companies without first obtaining a judicial warrant based on a finding that there is probable cause to believe that the individual whose call records the government want to examine has committed a crime. This would be true, for example, if the government wanted to open that individual’s mail or search his home or wiretap his phone calls, so why isn’t it true in this situation as well?

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Geoffrey R. Stone