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Mass Collection of U.S. Phone Records Violates the Fourth Amendment

The BriefGet Up To Speed

Some say that the mass collection of U.S. phone records is a gross invasion of privacy. Others say that it is necessary to keep us safe. But what does the U.S. Constitution say? "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.'€ Is collection of phone records a '€œsearch'€ or '€œseizure"? If so, is it '€œunreasonable'€? Does it require a particularized warrant and probable cause? These are among the most consequential'€”and controversial'€”constitutional questions of our time.


Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs.

Thursday, July 11, 2013
Randy E. Barnett

Geoffrey R. Stone queries whether the telephony metadata program is constitutional in this three-part series. Read <a title="Part two" href=" target="_blank">part two</a> and <a title="part three" href=" target="_blank">part three</a>.

Friday, January 3, 2014
Geoffrey R. Stone

Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

Thursday, June 27, 2013
Jennifer Stisa Granick and Christopher Jon Sprigman

The NSA’s recently revealed surveillance programs undermine the purpose of FISA, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.

Friday, June 21, 2013
Laura K. Donohue

After the long push to rein in overbroad surveillance powers, we are very pleased that the president announced his intent to end the bulk collection of Americans' phone records. Ending this dragnet collection will go a long way toward restoring Americans' constitutional rights and rebuilding the public's trust.

Friday, January 17, 2014
Senators Mark Udall

The NSA examines only the addressee and sender on e-mails, and telephone numbers called and called from. The Supreme Court has long held that such information is not privacy-protected by the Fourth Amendment.

Friday, August 16, 2013
Gerald Walpin

Current law supports the conclusion that massive-scale collection of communications meta-data by the NSA does not violate the Fourth Amendment rights of its customers.

Wednesday, July 17, 2013
Orin Kerr

Legally, the president is on secure footing under the Patriot Act, which Congress passed shortly after 9/11 and has since reauthorized by large bipartisan majorities. As he stressed, the program has enjoyed the continued support of all three branches of the federal government.

Wednesday, June 12, 2013
Roger Pilon and Richard A. Epstein

The Supreme Court has long held that we do not have a 4th Amendment expectation of privacy in information we voluntarily publish to the public.

Wednesday, December 31, 1969

Surveillance programs like this one are consistently subject to safeguards that are designed to strike the appropriate balance between national security interests and civil liberties and privacy concerns.

Thursday, June 6, 2013
James Clapper

As the president said, [the NSA’s collection of telephone metadata] is a capability that is ‘critical’ and must be ‘preserved.’ We have carefully reviewed this program and have found it to be legal and effective.

Friday, January 17, 2014
Sen. Dianne Feinstein and Rep. Mike Rogers

Under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

Wednesday, June 5, 2013
Glenn Greenwald

Text and <a title="overview" href="" target="_blank">overview</a>.

Wednesday, December 31, 1969
Legal Information Institute

This section of the Patriot Act, the law upon which the telephony metadata collection is justified, grants access to certain business records for foreign intelligence and international terrorism investigations.

Wednesday, December 31, 1969
Legal Information Institute

The declassified cover letters and 2011 report on the NSA’s bulk collection program for USA PATRIOT Act reauthorization. Related <a href="" title="statement" target="_blank">statement</a>.

Wednesday, February 2, 2011
U.S. Department of Justice

While the details of FISA-related investigations, including requests for business records, are classified, under Section 215 records can be produced only if they are the type of records that could be obtained pursuant to a grand jury subpoena or other court process.

Wednesday, December 31, 1969
Office of the Director of National Intelligence
Thursday, April 25, 2013
Foreign Intelligence Surveillance Court

Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate."

Wednesday, December 31, 1969
Legal Information Institute

The president said he no longer wants the NSA to maintain a database of such records. But he left the creation of a new system to subordinates and lawmakers, many of whom are divided on the need for reform.

Friday, January 17, 2014
Ellen Nakashima and Greg Miller

This report clarifies the differences between the two intelligence collection programs publicly disclosed in June 2013 and identifies potential issues.

Wednesday, September 4, 2013
John Rollins and Edward Liu

The N.S.A. sometimes collects Americans’ private communications or data without individual warrants. When it does so from American soil, it is generally governed by the Foreign Intelligence Surveillance Act. When it does so from abroad, it is authorized by Executive Order 12333 with rules the executive branch decides for itself, some of which are secret. Based on interviews and documents, here’s how they compare.

Wednesday, August 13, 2014
The New York Times

The leadership of both parties, as well as the White House, vocally opposed weakening the NSA's ability to conduct surveillance. But Amash still managed to mount a strong defense — which suggests that momentum is building for critics of the NSA.

Thursday, July 25, 2013
Brian Fung

In a case that may be headed to the Supreme Court, a lawyer for the government faced pointed questioning over whether the NSA’s gathering of vast amounts of Americans’ call records from U.S. phone companies violates the Fourth Amendment and a law known as Section 215 of the Patriot Act.

Tuesday, September 2, 2014
Ellen Nakashima

Congress is poised to rein in the NSA program as early as this year and could resolve most of the issues in the legal challenge, but the case has broader ramifications in a digital world where the government can collect heaps of information about a person's phone calls, emails and spending habits.

Tuesday, September 2, 2014
Joe Palazzo

Two recent rulings draw diametrically opposed conclusions about the same set of facts.

Friday, December 27, 2013
Andrew Cohen

The NSA’s collection of data about most calls made in the U.S. is legal, a federal judge ruled, dismissing a significant court challenge and setting the stage for a bigger legal battle over secret surveillance programs. The ruling comes less than two weeks after a federal judge in the District of Columbia took on the same issue and concluded in strong language that the program "almost certainly" violates the Constitution.

Saturday, December 28, 2013
Jennifer Smith and Jacob Gershman

The question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds it is.

Friday, December 27, 2013
Judge William H. Pauley III

The government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable.

Monday, December 16, 2013
Judge Richard J. Leon

There have been a lot of news stories about NSA surveillance programs following the leaks of secret documents by Edward Snowden. But it seems the more we read, the less clear things are. ProPublica put together a detailed snapshot of what's known and what's been reported where.

Monday, August 5, 2013
Jonathan Stray

The CIA is building a vast database of international money transfers that includes millions of Americans' financial and personal data. The program is carried out under the same provision of the Patriot Act that enables the NSA to collect nearly all American phone records.

Saturday, January 25, 2014
Siobhan Gorman