Are the NSA Blanket Data Seizures and the FISA Court’s Approval Unprecedented?

In challenging the constitutionality of the Affordable Care Act in our Heritage Foundation paper, we adopted the Congressional Research Service’s conclusion that such a purchase mandate was literally “unprecedented.”  This claim assumed some significance for three reasons.  If accurate, it might make a constitutional challenge a case of first impression not governed directly by previous judicial decisions.  It also meant that, if compelled purchases were held unconstitutional, it would not affect the exercise other previously approved powers and would make such a ruling less disruptive of existing practice and, therefore, easier for a court to adopt.  Moreover, as I note in two forthcoming articles (drafts available here and here), the Rehnquist Court’s New Federalism represented a “this far and no farther (without compelling justification that would not lead to a national police power)” approach that put the onus on the government to provide a rationale for any expansion of Congressional power beyond what has already been authorized that would not lead to a national police power akin to that of states.  If the purchase mandate was “farther,” the government would have to provide a judicially administrable limiting principle.

Of course, some contested whether purchase mandates were unprecedented, claiming that the Militia Act of 1792 or the 1798 “Act for the Relief of Sick and Disabled Seamen” constituted relevant historical instances of compelled purchases.  In the end, no court found these examples compelling, and all tended to treat the insurance purchase mandate as something truly new, exceptional, and requiring justification.  As a result, our constitutional objections got a more receptive hearing than most law professors expected, eventually being adopted in substance by five justices in NFIB v Sebelius.

On Friday, I published an op-ed in the Wall Street Journal (available here) questioning the constitutionality of the blanket seizures of private data by the NSA and CFPB, the constitutionality of which have been approved in secret ex parte proceedings in the Foreign Intelligence Surveillance Court.  In my op-ed I contended that such indiscriminate mass seizures were “unreasonable” and akin to the general search warrants that the Fourth Amendment was intended to prevent.  I also suggested that the secret judicial proceedings did not constitute the “due process of law” that is guarantied by the Fifth Amendment. In my blog post here, but not my op-ed, I raised the additional possibility that both this type of blanket seizure of private data and the secret authorization for these ongoing programs are unprecedented.

Is this accurate? I know I cannot think of another example in our history of mass seizures of privately collected data.  Nor can I think of another government program that was approved in nonadversarial ex parte proceedings held in secret, and justified in opinions that are also secret from the public and the companies from whom the data is being seized.  I do not consider the ex parte judicial approvals of warrants authorizing particular searches to be similar enough to constitute precedents. Nor is the temporary seizure of automobiles and other items under the “exigent circumstances” exception to the warrant requirements nearly the same.  Such seizures require a reasonable basis, and the “exigent circumstances” are considered exceptional.  For example, the mobility of automobiles is sometimes said to justify a separate body of rules simply because the evidence will disappear while the warrant to search is being sought. But these databases aren’t going anywhere.

But perhaps there are stronger historical analogies I am overlooking.  Or perhaps these existing seizures are closer to the NSA seizures that I now think they are.  When I characterized the individual insurance mandate as unprecedented, my confidence was bolstered by the fact that the Congressional Research Service had reached the same conclusion.  Now I am asking Volokh readers to weigh in on this question in the comments. There are actually two distinct questions:

  • First, is there any precedent for the mass and ongoing seizure of private data on American citizens by the government (assuming the companies have not consented to share this data)? 
  • Second, is there any precedent for approving the constitutionality of such a government program in secret ex parte proceedings using judicial opinions that are also secret?
Of course either of these acts can be characterized in different ways, so people are free to contest these formulations and offer their own. But then I would appreciate an explanation of why a different formulation more accurately captures what is going on here.  I am trying to characterize both practices accurately to capture what seems relevantly distinctive about them.
Are either or both practices unprecedented?
UPDATE:  To clarify my questions, I am asking about “precedent” in the sense of whether there are any previous examples of these practices (which I understand have been operating for a while).  I am not asking for cases or “precedents” that may or may not govern here.  That is a different question that will turn, in part, on whether this is something relevantly different than past practices.