The Fourth Amendment and Data Mining

Yesterday, I promised to provide some further thoughts on the Verizon data mining controversy. Since that pledge, we’ve also learned about internet surveillance as well, so let me address both points.

As I noted previously, the eavesdropping controversy will not prove as bad as it first seems. Apparently, the administration has been asking Verizon for all of the “metadata” on all of its customers’ calling — the phone numbers called and received, but not the content of the calls themselves.

In the days after the September 11, 2001 attacks, the Bush Administration’s Justice Department (in which I served) approved a program that may have relied on similar technology, but was far narrower in scope.  Both programs, however, seek to use communications coming into the United States from a known terrorist abroad to identify an al Qaeda network within the country.The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers (in contrast to the content of the communications). Individuals lose privacy over those numbers when they are given to the phone company. The Constitution protects the content of the communications — whether it be a phone call, an email, or and old-fashioned letter.

Congress approved a change to the FISA statute to allow such collection, and a court of federal judges approved it. Analyzing such metadata — what is sometimes called data mining — is perhaps the most effective way to find terrorist cells in the U.S. and stop future attacks — especially because the Obama Administration has dropped our best methods for producing  intelligence (the detention and interrogation of al Qaeda leaders).

The revelation of broad email surveillance is more troubling, simply because we don’t know the program’s scope. If the program only intercepts the content of emails for foreigners abroad, as is being reported, there is no constitutional violation. As the Supreme Court has made clear, the Fourth Amendment does not protect the communications of non-U.S. persons that take place abroad. In fact, the Justices reached that conclusion because they observed that it would be impossible for the U.S. to fight a war against a foreign enemy if limited by the Fourth Amendment. Allowing the government to intercept foreign, potentially enemy, signals intelligence without a warrant recognizes the reality of war, as opposed to the precise targeting of communications that would apply in the context of domestic law enforcement.

We shouldn’t expect any measured response to the Obama administration’s program from the usual libertarian critics, should we? When news broke in 2006 that the National Security Agency had been collecting phone call metadata, Senate Democrats called for President Bush’s censure or perhaps impeachment. New York Times and Washington Post editorial writers attacked Bush as a violator of the Constitution. Academic leaders like Yale law school dean Harold Koh called it “quite shocking” and accused it of lacking judicial approval. Senator Patrick Leahy had a hearing where he yelled “are you telling me that tens of millions of Americans are involved with al Qaeda?”

I suspect that criticism of Obama from these sources won’t rise to that level, proving yet again that the criticism of the Bush anti-terrorism programs was motivated by partisan politics, not enduring principle. Unfortunately, however, the program will be questioned because of the Obama Administration’s serious mistakes on its IRS investigations into conservative groups and the Justice Department’s surveillance of journalists. The Obama Administration’s destruction of the American people’s trust in government’s ability to run its core functions will harm our government’s ability to carry out its duty to protect the nation.

  1. The King Prawn

    The Obama Administration’s destruction of the American people’s trust in government’s ability to run its core functions will harm our government’s ability to carry out its duty to protect the nation.

    I’m at a loss as to why we should ever trust government to run its core functions. Either we put our boot to their neck or they put theirs to ours.

  2. Misthiocracy
    John Yoo:

    The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers (in contrast to the content of the communications). Individuals lose privacy over those numbers when they are given to the phone company. The Constitution protects thecontentof the communications — whether it be a phone call, an email, or and old-fashioned letter.

    According to whom?

  3. James Gawron

    John,

    Please, I think you and I know that totally blind application of legal reasoning irrespective of mitigating facts of a particular case leads to absurdity.

    You had 3 airliners rammed into two of the largest buildings in the US and the third hit the Pentagon.  The 4th plane downed by the shear courage of american civilians was aimed at the White House.   You had no way of knowing the extent of the organization or the level of the insanity of the organization that you were up against.  Given all of this you applied a much narrower data mining policy. 

    This admistration knew the terrorists and knew of their training before it happened.   They were both out of action within days.  Subsequent action has apprehended accessories  This is a fantastically less dangerous situation which resulted in a much wider data mining.  It smells of Rahm Emanuel and never letting a crisis go to waste.

    Please John can we make a distinction between appropriate reactions to a crisis and fishing expeditions that use a tragedy as a pretext.

    Regards,

    Jim

  4. The King Prawn
    Misthiocracy

    John Yoo:

    The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers (in contrast to the content of the communications). Individuals lose privacy over those numbers when they are given to the phone company. The Constitution protects thecontentof the communications — whether it be a phone call, an email, or and old-fashioned letter.

    According to whom? · 0 minutes ago

    Another good question: could data obtained in this manner be used as evidence in a court of law? If yes, then why is it not protected against unreasonable search and seizure?

  5. Matthew Gilley

    Misthiocracy – You ask a good question and Professor Yoo can provide you a better citation since I don’t have anything at hand that is going to assist my failing memory. However, I expect he relies on longstanding Supreme Court authority regarding the warrantless use of pen registers in criminal investigations

  6. civil westman

    We do not yet know for certain, but data mining may be only the tip of the iceberg. Here is a suggestion that all digital communications are being recorded. The President chose his words carefully today. He said no one is ‘listening to’ your phone conversations. He did not say they were not being stored for future use, presumably (hopefully) based upon probable cause. Add to this a growing DNA database – including samples from those who are acquitted subsequent to an arrest – and you have total knowledge and surveillance, as in totalitarian.

  7. 2klbofun

    I think the worry of many citizens would be the misuse of  this information for political targeting — which we have already seen with the IRS.  

    Say for example, if a government agency should use a phone number on a “Tea Party” 401(c) application as a starting point to develop a “social graph” of the contacts and contacts’ contacts of that person to target for IRS, EPA or OSHA auditing.  

    Hmm, just thinking, maybe the Tea Party organizers should begin a campaign of calling and emailing NYT reporters and Dem congress-critters.

  8. Salvatore Padula
    Misthiocracy

    John Yoo:

    The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers (in contrast to the content of the communications). Individuals lose privacy over those numbers when they are given to the phone company. The Constitution protects thecontentof the communications — whether it be a phone call, an email, or and old-fashioned letter.

    According to whom? · 16 minutes ago

    Smith v. Maryland, 442 U.S. 735 (1979).

  9. Mendel
    Misthiocracy

    Mendel Just out of curiosity, if phone records are not protected by the 4th Amendment, why did the NSA seek FISA approval to gather the records from Verizon?

    I believe it’s a requirement of the Patriot Act.

    To forego FISA approval might not have been a violation of the 4th Amendment, but it would have been a violation of the Patriot Act.

    That’s what I suspected.  

    However, wouldn’t that paradoxically mean that this statute in the Patriot Act is unconstitutional because it goes too far in inhibiting the NSA’s constitutional right to gather information?

  10. DrewInWisconsin
    John Yoo: The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers (in contrast to the content of the communications). Individuals lose privacy over those numbers when they are given to the phone company.

    Information that I provide to a PRIVATE company is not a matter of PUBLIC record.

    The end.

  11. Ray Kujawa
    Dan Hanson:

    Remember how awesome the Obama campaign’s ‘data mining’ operation was?  Imagine if his political campaign got access to this data…

    The real problem here is that we now have conclusive information that people in this government will abuse their power for partisan purposes.   Therefore, they simply should not be trusted with this data.  Anyone who would go so far as to use the IRS to punish their enemies wouldn’t hesitate to use this data nefariously.

    Let’s put all our cards on the table and say why shouldn’t this metadata be publicly? The answer should be obvious that any amount of harm could come from misuse of this data. Everyone would know who your friends are.  We know now that a government that abuses its power will leak/share this information for political purposes. We shouldn’t be naive. I felt that I could trust the previous Republican administration, but this administration has proven they cannot be trusted. And what gives us a warm feeling they’re really focusing on safety of the people anyway? They didn’t prevent Boston from happening.

  12. Misthiocracy
    Eric Hines

    Misthiocracy

    Salvatore Padula

    Matthew Gilley: Thanks for the assist, Salvatore. Good to see someone is at their desk! 

    Happy to help. Though I have to admit that I’m waiting  with trepidation for the likely comment ”So what if the Supreme Court said so?”

    Not from me.  A Supreme Court citation is good enough for me. 

    Really?  The Supreme Court that gave usDred Scott? Plessy? Wickard? Berman,Midkiff, andKelo? Obamacareas tax?

    That’s right.

    A bad Supreme Court decision is still the law of the land, no matter how much I dislike it.

    It’s up to successive supreme courts to overturn the bad decisions, and/or up to legislators to overturn such bad decisions via constitutional amendments.

  13. Mendel
    Salvatore Padula

     Blackmun was joined by the conservative justices inSmith. 

    Point taken.

    Salvatore Padula

    The standard isn’t what’s in the public domain. It’s whether a person has a reasonable expectation of privacy in the subject of the search. 

    I understand that “public domain” has no legal bearing.  

    But since “reasonable expectation of privacy” refers to the eyes of the beholder, referencing the public domain seems like a decent analogy to me: as a citizen, I reasonably expect acts that I perform in public not to be private, whereas anything I don’t do in public I expect to be private.  The citizen whose reasonable expectation is the measuring tape likely does not differentiate between privacy toward the government and privacy toward the public: privacy is privacy.

    There is a contradiction here (that I can’t articulate well): How can the Supreme Court say that I can have no reasonable expectation of privacy when I dial a telephone number, even though I could sue the telephone company (and win) if they released the same information to the public?

  14. Bereket Kelile
    Mendel

    Just out of curiosity, if phone records are not protected by the 4th Amendment, why did the NSA seek FISA approval to gather the records from Verizon? 

    The program was put under FISA jurisdiction in 2006 if I’m correct. The change was made because at the time only the president was exercising authority over the program. This “institutionalized” the practice.

  15. Allison

    I am disturbed that anyone is suggesting or implying that the only metadata the NSA has is the list of called numbers. that position is either uninformed or intentionally misleading.The metadata for any cell phone call includes everything you see on your bill and much more. it includes the SIM card id number. It includes the individual cell towers and their locations for the origination of the call and all towers used during the call. It includes the e911 GPS data that cell providers were mandated to always compute and send. It includes the packet numbers for the data sent. it includes things like the voltages and signal strengthen of the phone to tower connection.

  16. Bereket Kelile
    DrewInWisconsin

    Information that I provide to a PRIVATE company is not a matter of PUBLIC record.

    The end. 

    You don’t provide a phone number to the phone company. In any event, phone numbers are a matter of public record since we have phonebooks. 

  17. Eric Wallace
    Mendel

    Salvatore Padula

    Misthiocracy

    John Yoo:

    The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers (in contrast to the content of the communications). Individuals lose privacy over those numbers when they are given to the phone company. The Constitution protects thecontentof the communications — whether it be a phone call, an email, or and old-fashioned letter.

    According to whom? · 16 minutes ago

    Smith v. Maryland, 442 U.S. 735 (1979). · 42 minutes ago

    Just out of curiosity, if phone records are not protected by the 4th Amendment, why did the NSA seek FISA approval to gather the records from Verizon? · 19 minutes ago

    One possible answer is the requirements of the Stored Communications Act, which (Oversimplified Edition) requires a warrant for stored data which is less than 180 days old. Recall these details from the controversy over seizing emails during the Petraeus scandal. In other words, not a Constitutional barrier but a statutory one. Of course, national security exceptions could be at play too.

  18. Misthiocracy
    DrewInWisconsin

    The end.Information that I provide to a PRIVATE company is not a matter of PUBLIC record.

    Not quite.

    If I tell my friend something about myself, and my friend then gives that piece of information to the government, my constitutional rights were not violated because I gave that information to my friend freely.

    The government cannot compel my friend to give them the information without violating his 4th and/or 5th amendment rights, but if he chooses to give the information away, that is his prerogative.

    In a similar vein, was Verizon compelled to hand over subscribers’ metadata, or did they do it voluntarily?

    Now, if I sign a contract with my friend to keep the information secret, in that case I have a “reasonable expectation of privacy”. Even so, it’s still my friend who is liable, not the government.

    Do Verizon contracts state that they will maintain the privacy of their subscribers’ metadata?

  19. Misthiocracy
    Mendel

    Misthiocracy

    Mendel Just out of curiosity, if phone records are not protected by the 4th Amendment, why did the NSA seek FISA approval to gather the records from Verizon?

    I believe it’s a requirement of the Patriot Act.

    To forego FISA approval might not have been a violation of the 4th Amendment, but it would have been a violation of the Patriot Act.

    That’s what I suspected.  

    However, wouldn’t that paradoxically mean that this statute in the Patriot Act is unconstitutional because it goes too far in inhibiting the NSA’s constitutional right to gather information?

    No. I do not believe that the constitution places any limits on Congress with regards to limiting data collection by the executive branch.

  20. DrewInWisconsin

    This makes me angry on levels so deep I barely know they exist.