Is the Storing of Metadata by the United States Government a Search in Violation of the 4th Amendment?

-- By DavidHammond - 02 Mar 2017

Introduction

What if I had a magic ball that sucked up every spoken conversation, written correspondence or activity anyone ever engaged in? What if my magic ball had unlimited storage capacity and an ability to quickly sift through the information to tell me anything I wanted to know? What if the magic ball were in the hands of the government?

Existing normative frameworks and Constitutional jurisprudence are generally applicable to every dimension of the cyber domain.

The challenge for policymakers is the application of existing frameworks to cyber and articulating principles that government agents can use to determine their scope of authority while protecting US networks and critical infrastructure. The same is true for the intentional or incidental collection of information regarding a US person. Indeed there is a distinction between citizen and non-citizen in relation to the rights afforded to them. Generally, the Constitutional protections apply to citizens and places under US control. Difficulty arises when there is conflation between citizen and non-citizen or uncertainty about whether US control exists.

US Metadata Policy

Edward Snowden showed that the United States systematically maintained information concerning US persons. US intelligence analysts defended the collection by saying it was incidental to their duties. To better understand the paradigm government cyber operators work in it is necessary to divide cyber activity into three frameworks:

1. criminal (lawlessness, typically attributed to individuals) 2. acts of war (attacks, typically attributed to a nation-state) 3. or espionage (criminal, but generally accepted international activity that does not modify electronic data but does look at it)

The Federal Bureau of Investigations focusses on the first framework, while the national security apparatus is authorized to focus on the latter two frameworks, balancing “need for security and preserving those freedoms that make us who we are." (President Obama, May 23, 2013; https://www.nsa.gov/news-features/press-room/statements/2013-08-09-the-nsa-story.shtml).

However, according to Snowden, active espionage targeting foreign citizens was being conducted by the National Security Agency (NSA). In the collection of foreign records, incidental collection of US citizens occurred. Snowden also revealed that the content of the communication was able to be accessed by NSA. This information collectively is referred to as metadata.

Snowden Aftermath

In the aftermath of the Snowden leaks, the US government put additional controls on the maintenance of metadata, specifically as it related to US citizens. For example, US telecommunication companies would be required to maintain the data and only turn it over to the government if there was a warrant. This directly took some of the metadata out of governmental hands and underscored the importance of particularity in search warrants. In the digital age, protection of individual autonomy hinges on how metadata is used. As described above, this question is partly answered by policymakers, putting regulatory safeguards within the intelligence system to ensure personal information is not being improperly used. The other part should be answered by the Supreme Court.

Supreme Court Jurisprudence

Supreme Court jurisprudence from US v. Weeks until present has attempted to put searches in a tidy box with neatly defined parameters:

1. a quest for evidence 2. by a government agent, 3. where a reasonable expectation of privacy exists

Is collection of Metadata a search?

Under that very specific definition, the unfiltered capture of information would not constitute a search. Even if justices believe that Supreme Court 4th Amendment jurisprudence is flawed, the Supreme Court is unlikely to make sweeping moves toward redefining searches to include metadata. A more realistic possibility is that the Supreme Court could limit the government's use of the metadata. Something akin to the exclusionary rule could be used to put systemic safeguards in place. Another possibility is to invoke the Freedom of Speech guaranteed in the 1st Amendment. The argument is that by subjecting American citizens' private conversations to government review, albeit through a warrant, speech is chilled.

If Deemed Constitutional, Is it Good Policy?

Collecting and storing massive amounts of information is not good policy. To date, the program has not thwarted a terrorist plot. Further, the information being stored could be used for nefarious purposes. An unscrupulous presidential administration could use the program to locate and silence political dissidents. For example, during the Obama administration, the IRS was accused of targeting conservative organizations for audits and regulatory enforcement. If US cyber capability were pointed internally and used for nefarious ends, a truly despotic state could emerge. Procedural safeguards voluntarily imposed by policy makers and mandated by the judiciary will prevent the infringement on individual liberty. Putting limits on the ability to deploy technology may allow nefarious actors to act badly but it will ensure the citizens of this country remain free.

Conclusion

The Magic Ball exists. For US citizens, lawyers, and policymakers, the question is how to maintain a free society with the existence of these omniscient powers. One answer is for individuals to cease using electronic means of communication or to only use them autonomously. That seems backward thinking. Sailors do not surrender their freedom of navigation by identifying themselves on the high seas. Another option is to put safeguards in place that prevent the unauthorized use or dissemination of information. Like nuclear weapons, the mere existence does not precipitate use. We can put adequate controls that limit collection and dissemination in order to maintain individual liberty. As President Eisenhower eloquently stated: "Only a sturdy and vigilant citizenry, deeply dedicated to liberty and alert to any external or internal encroachment, can sustain freedom. Where sturdiness and vigilance, where clarity of vision are weakened... freedom come[s] face to face with its deadliest internal enemy, the misled and complacent citizen." -- DavidHammond - 05 May 2017