My op-ed in tomorrow’s Wall Street Journal op-ed on the unconstitutionality of the blanket seizures of private data by the NSA and the CFPB is now online here. Although I believe this type of mass data seizures may be unprecedented, I don’t make that claim in this column. But if it is, it makes a legal challenge more feasible. In my column, I also question whether the approval of these programs in secret “ex parte” proceedings and opinions by the FISA court is a denial of the “due process of law.”
Here is a taste:
By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call “informational privacy.” Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual “terms of service.” These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers’ trust.
With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this “metadata” can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable,” akin to the “general warrants” issued by the Crown to authorize searches of Colonial Americans.
Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property “without due process of law.” Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.
In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants. For the people to control their servants, however, they must know what their servants are doing.
The secrecy of these programs makes it impossible to hold elected officials and appointed bureaucrats accountable. Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants’ conduct in office. Yet such judgment and control is impossible without the information that such secret programs conceal. Had it not been for recent leaks, the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.
Even if these blanket data-seizure programs are perfectly proper now, the technical capability they create makes it far easier for government to violate the rights of the people in the future. Consider why gun rights advocates so vociferously oppose gun registration. By providing the government with information about the location of private arms, gun registries make it feasible for gun confiscation to take place in the future when the political and legal climate may have shifted. The only effective way to prevent the confiscation of firearms tomorrow is to deprive authorities of the means to do so today.
Like gun registries, these NSA and CFPB databanks make it feasible for government workers to peruse the private contents of our electronic communication and financial transactions without our knowledge or consent. All it takes is the will, combined with the right political climate.
The issue is not limited to current Supreme Court Fourth Amendment doctrine, however. Members of Congress are entitled to reach their own conclusion that these programs are unreasonable and unconstitutional regardless of what courts may say.
On Saturday, I will be on a panel on NSA surveillance at FreedomFest in Las Vegas.