An email from the Electronic Frontier Foundation (EFF) received yesterday, 7/16/13, supports my analysis of Constitutional challenges to the collection of metadata from companies such as Verizon.
In an earlier post, I responded to a friend’s Facebook post which argued: “The 4th and 5th Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance.” On Facebook and on this blog at “Wrong, Mr. Snowden, Just Wrong,” I explained that International Law simply does not criminalize espionage or military surveillance by nation states. Here, again, on Crossroads at “Fourth Amendment does not (yet) apply to NSA’s telephone call database (metadata)” we discussed the Fourth Amendment. On Facebook, I stated that I couldn’t see a due process or other 5th Amendment violation, adding:
But, the very limited success that has been made in challenging orders for production of 3rd party records has been accomplished with FIRST Amendment arguments — that such surveillance chills speech or association.
Sure enough, yesterday the EFF wrote:
EFF just filed First Unitarian Church v. NSA, a new lawsuit opposing the illegal mass surveillance programs of the National Security Agency (NSA). We’re representing a broad group of American organizations—political associations, churches, and groups of ordinary folks—to draw much needed attention to the First Amendment violations caused by the unprecedented collection and searching of telephone records. (emphasis added)
No doubt, this is for the same reasons that privacy advocates labeled Section 215 of the USA PATRIOT Act the “Library Provision” when it never used the word “library” and had no special application to libraries. But, the intersection of First Amendment jurisprudence with privavcy concerns made the strongest legal case. In my classes, I would ask students to prioritize various types of records by how violated they would feel if the government obtained them. Library records were never the top of the list. But, calling Section 215 the “Medical Records Provision” would have implicated only the Fourth Amendment (a loser argument) and not the First. Moreover, the First Amendment presents a rare exception to the rule that you can not invoke someone else’s Constitutional rights on their behalf. Only you can have a case or controversy in federal courts about a violation of your Fourth Amendment rights. Yahoo or Microsoft or whomever can not sue on your behalf over a Fourth Amendment violation. But, a third party like Yahoo or Microsoft under some circumstances can invoke your First Amendment rights.
I think that the EFF lawyers are correct: their best chance of winning through litigation is the First Amendment.
My own view, just a personal one, is that it makes far better sense to have Congress add additional privacy protections by statute, rather than trying to reinterpret the Constitution. That is exactly what the Electronic Communications Privacy Act and the Pen Register Act and arguably FISA itself do. The EFF and ACLU and others are trying to win in the Courts what they couldn’t win in the legislature. But, maybe, now times have changed, and Congress might enact increased protections above subpoenas in criminal investigations and Section 1861 orders (what Section 215 amended) in foreign intelligence investigations. Here is a simple example: All Circuits that reached the issue and the Supreme Court consistently held that the Government does not need any showing of anything to open mail at the border. But, decades ago, Congress passed a statute that requires reasonable articulable suspicion to open first class mail as a border inspection. To me, that was smart, rather than trying to create some Fourth Amendment exception to the border exception through litigation. Obviously, Congress can pass privacy protections above what the Constitution requires, at least until you bump against plenary executive powers like military signals intelligence for the commander in chief during time of war.
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