As most people on the planet now know, the National Security Agency obtains detailed records of the “metadata” of essentially every call – domestic and international – made by every person in the U.S. Metadata do not reveal the content of a call but do reveal virtually everything else about it – the numbers called, the source of incoming calls received, the time and duration of each call, comprehensive communications routing information, and other non-content details. The Agency retains that information in a comprehensive database for at least five years, and analysts dip into the data to trace suspicious patterns and links to other numbers when (but, in principle, only when) analysts have reasonable suspicion to believe that a particular phone number is associated with terrorist activity.

I do not question the potential contributions of the NSA program; intelligence collection of this sort clearly can serve valuable counterterrorism purposes. But Americans who accept the usefulness of the program and give great weight to its potential payoffs must nonetheless focus their attention on the competing values implicated by a broad governmental effort to sweep up and retain this kind of information. Much of the debate about the program – including last week’s exchange between Jennifer Granick and Orin Kerr here on Just Security – focuses on the constitutional question of whether the effort violates the Fourth Amendment prohibition of “unreasonable searches and seizures.” To date, however, most of the national discussion surrounding the NSA program has omitted several crucial perspectives.

In this post, the first of a two-part series, I want to discuss the constitutional concerns about the NSA program, but highlight an area of Fourth Amendment jurisprudence often overlooked in the current debate: the Supreme Court’s precedents regarding “administrative” searches. In Part II, I will turn to several broader issues that not only inform the constitutional analysis but also are of more immediate concern because they shape public opinion and the possibilities for a legislative response in the near future. Those concerns include, most importantly, whether the NSA program (regardless of its constitutionality) (i) faces adequate oversight; (ii) is sufficiently transparent; and (iii) needlessly endangers such values as a free press, the spaces available for creativity and dissent, and the everyday effectiveness of our democracy.

The Constitutional Questions

In Smith v. Maryland (1979), the Supreme Court held that the government invaded no constitutionally protected privacy interest, and therefore conducted no “search” under the Fourth Amendment, when it obtained telephone numbers dialed and other information “voluntarily” turned over to third parties such as banks and other service providers. Even in 1979 the decision was controversial, but in any case its implications have changed dramatically in a world where vast amounts of information can be cheaply stored and analyzed. For years the Supreme Court had shown no disposition to rethink Smith’s narrow understanding of Fourth Amendment privacy, but in the recent decision of Jones v. United States, the Justices somewhat unexpectedly cast doubt on the Smith approach. The Court held that there was a “search” in the use of a GPS tracking device to record information that was in theory available for anyone to see – a suspect’s movements and physical location, 24 hours a day, over a 28 day period.

Those who read Jones narrowly, as Professor Kerr did in his earlier post, emphasize that the Court’s majority opinion was based on a theory of physical trespass: the decisive fact was that government agents physically attached the GPS device to Jones’ car. But concurring opinions discounted the importance of this factual detail and emphasized instead the intrusiveness of a government tactic that uses GPS to collect vast amounts of data, even when that data is in plain view and theoretically available to others. The concurring Justices, who together represented a majority of the Court, clearly are ready to rein in the widest implications of Smith v. Maryland and its progeny, but none of them indicated precisely how or in what ways they are prepared to do so. Therefore any judgment about the constitutionality of the NSA program – that is, an informed prediction of what the Court will do when presented with this issue – is at best uncertain.

If the constitutional question weren’t muddled enough, another consideration complicates the picture: the “administrative search” doctrine. Cases like Smith and Jones all involved criminal investigations designed to collect evidence for prosecution. In contrast, the Court has always allowed more leeway for what it calls “administrative” searches – those that serve special needs distinct from the ordinary interest in law enforcement. The NSA program, designed to identify and preempt incipient terrorist threats, almost certainly qualifies for this more relaxed treatment. Thus, even if the Court does find that collection of metadata constitutes a search, the NSA program would remain constitutionally permissible, without individualized probable cause, if it is structured to strike a reasonable balance between security needs and privacy interests.

Whether the NSA program can pass this test is far from clear. The Court has upheld roadblocks that stop every car for a brief period, provided they serve administrative rather than law enforcement purposes. And the purpose of the NSA program, combating threats to the national security, arguably is far weightier than any administrative goal the Court has found sufficient in the past. However, the Court has never approved, as an “administrative search,” an information-gathering effort comparable in scope, secrecy, and apparent lack of oversight to the NSA initiative.

Ultimately, then, an informed judgment about whether the NSA program constitutes a “search” and whether it is sufficiently reasonable to pass muster as an “administrative” search turn on the same issues that should inform public opinion and legislative action – does the NSA program face adequate oversight? Is it sufficiently transparent? Does it present significant but avoidable risks to personal privacy, political dissent and freedom of the press? I will return to those issues in my next post.

For a more in-depth treatment of these issues, please see chapters 6 and 7 of my recent book More Essential Than Ever: The Fourth Amendment in the Twenty-first Century.