Presently, the debate over the Constitutionality of the NSA surveillance program continues to rage on. Many incorrectly believe that if you have not done anything wrong, you do not need to be concerned. The more politically savvy among us recognize the program to be a grave concern to privacy rights, specifically those guaranteed by the 4th Amendment to the United States Constitution. Of the politically savvy who have recognized the issue as a privacy violation, many have since gone on to sue the Obama Administration, Verizon and the Department of Justice over the program.
While not an attorney, my educational background is indeed in US Law. I have begun to do more research on the NSA case(s), how it (they) may proceed in the Federal Courts and have also done additional research into the current jurisprudence regarding the Fourth Amendment. What I will look at in this article is how 4th Amendment jurisprudence has evolved and how a 4th Amendment question might be answered if any NSA case were to make it to the Supreme Court.
HISTORY OF THE FOURTH AMENDMENT
The Fourth Amendment is written as follows in our Bill of Rights section of the United States Constitution:
The 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
So how does this language affect the present NSA case? Before one can answer that, one must first understand how each part of the Fourth Amendment has evolved in US law; focusing on what constitutes a reasonable search, a reasonable expectation of privacy, the warrant process and what types of evidence can be legally searched and seized.
In Katz v. The United States (1967) the Supreme Court defined what constitutes a ‘search’ and reasonable expectation of privacy.
Katz was making a phone call from a telephone booth about the transfer of illegal gambling earnings. The FBI had wiretapped the phone booth on its exterior and later used the evidence from the wiretapped conversation to convict Katz of illegal gambling. Katz and his attorney argued that the FBI violated his Fourth Amendment right to privacy since there was no warrant to wiretap the booth based on probable cause and Mr. Katz had a reasonable expectation of privacy in the phone booth.
To answer the Constitutional questions presented, the Court focused on what constituted a reasonable expectation of privacy and what legally constituted a search.
According to the Majority Opinion, a ‘search’ is where 1.) a person expects privacy in the thing searched and 2.) That the search is reasonable.
The Court held that an invasion of privacy had indeed occurred and that Mr. Katz when placing the phone call had a reasonable expectation of privacy inside the booth, and that the booth did not constitute a public place. More specifically, Justice Stewart noted “a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a ‘reasonable expectation of privacy.'”
Also held within this case; wiretapping is legally considered a form of search or act of intrusion, and a physical search/intrusion is not necessary to impede someone’s Fourth Amendment right to privacy.
Katz set the groundwork for cases to come later by ruling that a search/intrusion can occur electronically, violating Fourth Amendment rights. Additionally, Katz also ruled on what constituted a reasonable search, resting on whether or not the individual had a reasonable expectation of privacy.
But what about when a government agent, like the NSA, wants to search without a warrant regardless of privacy expectations? What are the Constitutional guidelines for circumstances in which a law enforcement mechanism might conduct a search without a warrant as in the NSA’s surveillance of Verizon customers?
The jurisprudence on searches conducted without a warrant take its judicial philosophy from several cases. From these cases, the Supreme Court has defined some exceptions to the warrant requirement for the following: 1. Consent, 2. Plain view, 3. Exigent circumstance. Since they are not relevant to this case, I will not focus on the exemptions related to open fields, around the home, motor vehicle and border searches.
1. Consent — The Court has traditionally held in many cases that a warrant or probable cause is not required if a party or person consents to a search.
2. Plain View — A law enforcement agent may seize an object that is in ‘plain view.’ The Plain View Doctrine stipulates that an item is in Plain View under the following guidelines according to Horton v. California (1990): a.) The agent must be lawfully present at the place where the evidence can be plainly viewed, b.) the agent must have a lawful right of access to the object, and c.) the incriminating character of the object must be “immediately apparent.”
3.) Exigent Circumstances: According to United States v. Smith (10th Circ., 1986): “Exigent circumstances arise when the law enforcement agent has reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, and that the search is not motivated by an intent to seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched.”
In concluding the Fourth Amendment jurisprudence, as related to the NSA case;
1. A search can include electronic methods of intrusion.
2. If there is a reasonable expectation of privacy, a subject cannot be legally searched absent a warrant based on probable cause or probable cause.
3. Exceptions to warrants can include consent to search; where a document pertinent to the suspicion of a crime is in plain view; Or, where exigent circumstance permit decisive action resulting in the collection of evidence absent a warrant or probable cause.
APPLICATIONS TO THE PRESENT NSA CASES
Having provided a background to the interpretation of the Fourth Amendment it would seem reasonable to conclude that millions of Americans have had their Fourth Amendment rights violated by ongoing NSA surveillance programs. However, that does not infer any legal standing to sue.
What will likely occur, as has happened in the past with similar cases against domestic spying, concerned privacy advocates and citizens alike will struggle to prove in a court of law that an injury has occurred as a result.
In the instance of the Verizon class action lawsuit against the Obama Administration, they will have to prove that the violation of their Fourth Amendment rights by the NSA surveillance program caused an injury. An injury as defined by NOLO’s Plain English Law Dictionary is a “Harm done to a person by the acts or omissions of another. Injury may be physical or may involve damage to reputation, loss of a legal right, or breach of a contract.”
In the case of the NSA, the petitioners will argue the loss of a legal right. The reason this will be hard to prove in a court of law is that the violation has occurred under a classified environment. Although the documents were leaked to the public, the documents do not become “declassified.” Absent hard evidence, such as documents proving the existence, the government can claim the program does not exist as described. They are under no legal obligation to admit to such programs, and given the classified nature of the documents prompting the lawsuit, are legally required NOT to acknowledge them.
LIKELY LEGAL OUTCOME OF THE NSA PROGRAM
The case will likely be struck down given the lack of supportable evidence to prove an injury has occurred. The counsel will likely appeal the decision, where an Appellate Court will choose whether to accept such a petition on a case by case basis. Given the national scope of the issue, the case could wind up being referred to the Supreme Court.
However, similar cases have not been ruled upon there, simply because they depend upon evidence that is classified information pertinent to National Security. The SCOTUS is likely to reject hearing this case, and any like it, because it presents what is known legally under Constitutional Law as a ‘Political Question.’
A ‘Political Question‘ is defined narrowly. However, in general it is held under Baker v. Carr (1962) that the “courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government.”
The Court is likely to rule that the NSA is given its powers from the laws including both The FISA Act of 1978 as amended in 2008 and 2012 and more generally under the Patriot Act of 2001 and as renewed in 2011. The Court under its current ideological makeup is likely to consider any purported violation of rights a political question better answered by the Congress which created them.
While one would hope this is the time for the Court to institute legal checks and balances regarding our Fourth Amendment rights, it would seem that based on legal precedent and the present ideological makeup of the Supreme Court (Neo-Conservative slant) it would be unlikely.
CONCLUSION/WHAT CAN WE DO
If the Court decides that the NSA case presents a non-justiciable political question, it will become up to the people to provoke a change. Any legislator, whether a Senator or Congressman, who votes for a law which violates a Constitutional right must not be voted for.
You can see a list of Congresspersons in both Houses who voted to renew the Patriot Act including the controversial Section 215 here
You can see a list of Senators who voted for FISA here
You can see a list of Housemembers who voted for FISA here
DO NOT RE-ELECT THESE MEMBERS OF EITHER HOUSE.
We must ultimately do our own homework. Stop supporting politicians who do not protect your civil liberties. While you may not have done anything wrong, the NSA has introduced the framework for a Totalitarian State through unconstitutional policies. With that in mind, we should be doing everything we can to reduce such a framework.
Start supporting civil liberties minded candidates for office, the NAY votes under both bills. Also do your research on candidates for the presidency. It is the president who selects members to the Supreme Court forming its ideology.
Beyond average citizens, corporations who receive these requests should not comply with them. A corporation like Google has much more legal standing to sue the Federal Government over NSA-type programs. They can prove more than a “loss of rights” related to compliance with such surveillance requests but also injuries to its economic well-being and at this point, its reputation.
If the country can stop aligning itself with partisan ideology and instead focus on broader issues of civil liberties, we may stop this dangerous trend going forward in American history.
The United States Constitution begins:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
It’s time to again turn these principles and once again establish a more perfect union.