The New York Times is reporting that the NSA and the Federal Government “is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans.” The records obtained include call logs. It is unclear how widespread the record collecting is, and whether it includes residential or cellphone services.
The law as written, including in the Patriot Act, permits this.
The key unanswered question: is a government law that permits law enforcement to obtain cell phone records from many, or all, users permissible under the Constitution.
Here are some initial thoughts.
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .”
The Supreme Court has explained that the fundamental purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct., 387 U.S. 523, 528 (1967).
However, the courts have created a number of exceptions to the Fourth Amendment, so that many government actions that appear to gather personal information are not considered to be “unreasonable” and therefore subject to Fourth Amendment scrutiny.
The Supreme Court has explained that a search occurs, and the Fourth Amendment is implicated, when the government intrudes on an expectation of privacy that society is prepared to consider reasonable. In evaluating this test, courts ask two questions: (1) has the person demonstrated an expectation of privacy; and (2)is society willing to recognize that expectation as reasonable.
The second question is much more complicated.
The courts have generally held that the Fourth Amendment provides little to no protection for data stored by third parties. The most famous case is United States v Miller. Miller concerned bank records. In that case, the Supreme Court held the Fourth Amendment did not apply to information voluntarily provided to a third party.
There are three key differences between this situation and Miller.
First, a key to Miller was that the information sought was business records, not likely to reveal personal information. Cell phone records can reveal a significant amount of personal information – phone calls to friends, doctor’s offices, mental health professionals, business colleagues – can all provide clues about the most intimate details of a person’s life. A better example is United States v. Warship. In that case, a federal appeals court found that emails were subject to the Fourth Amendment even if they are in the possession of a third party Internet Service Provider, like Gmail or Hotmail.
Second, the amount of data collected allows the government to draw conclusions about the private lives of people from aggregated data that could not be drawn from discrete sets of records.
Courts are likely to perceive a difference between gathering a reviewing months of calls for numerous users and reviewing the records of one individual. The aggregation of seemingly innocent pieces of data allows a clever observer to determine a person’s private contacts and routine. This is because, as some of the Supreme Court Justices recognized in reviewing the warrantless use of use GPS tracking devices, the whole of one’s movements reveals more than does the sum of its parts. With aggregated call data, an observer can use patterns of calls to reveal details about a person that might not available from a single action or transaction. For example, one call to a physician doesn’t mean much, but multiple calls to a physician could allow an observer to infer a medical condition.
Third, the gathering of cell phone records could permit law enforcement to conduct surveillance beyond a targeted investigation into certain crimes. Instead, the program could permit law enforcement to undertake surveillance of a particular individual over an extended period of time in the hope of piecing together evidence of illegal conduct, including evidence of illegal conduct that was not even suspected prior to the surveillance. This is the point I made in a law review article examining GPS tracking cases before the Supreme Court in the Jones case found that the practice violated the Fourth Amendment.
The government program of obtaining cell phone records can provide a “map of association” of all of the contacts, associates, colleagues, and friends of users. Indeed, this could be the purpose.
The Supreme Court has recognized a privilege, grounded in the First Amendment right of association, not to disclose information when disclosure may impede the rights of speech and assembly. This First Amendment check on government investigative activities was most famously explored in the United States Supreme Court in NAACP v. Alabama. In NAACP, the state of Alabama sought to compel the NAACP to reveal the names and addresses of all its Alabama members and agents. The Court held that the constitutional right of association – which is tied to the rights of speech and assembly – could protect those who join groups from state scrutiny. The Court explained, “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute . . . [an] effective a restraint on freedom of association. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
In regards to the NAACP, the court feared that compelled disclosure of the organization’s membership list might “induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.”
The right to withhold lists of members in a group is not, however, absolute. Rather, the right must be balanced against the government interest. The extent of the First Amendment argument was tested in a case involving Julian Asante’s Wikileaks website. In Re: §2703(d) Order, No. No. 1:11dm00003, E.D. Virginia 2011. In order to aid in the investigation of possible criminal charges arising out of the recent Wikileaks disclosures, the government sought a court order requiring Twitter to turn over the customer information of various users suspected to have been involved in the disclosures. (The government did not seek to obtain the contents of any communications.)
The users argued that the order violated the First Amendment. They argued that allowing the government to obtain records of this information would have a chilling effect on the willingness of people to post information on Twitter, or to follow certain users. The court rejected this argument, in large part because the users had already made their Twitter posts and associations publicly available.
Persons in private or restricted groups have a stronger argument that the disclosure may have a chilling effect on the willingness of others to be associated with the group. In addition, courts will be more likely to be protective of records that reveal political or religious affiliations – purposes already within the core of the First Amendment protections.