I want to thank Orin for his most informative and helpful analysis of how existing Fourth Amendment doctrine might govern the NSA telephone and Internet surveillance programs. But…. Actually there is no “but.” I just figured readers were expecting one. Orin’s analysis is very useful and provides lots of food for thought. Of particular relevance to the argument I advanced in the Wall Street Journal is the existing doctrinal treatment of seizures as distinct from subpoenas. And it is not clear that data seizures by the CFPB fall under the same existing doctrines that might justify a national security program like PRISM.
Of course, existing doctrine can change in response to new situations, as it always has. We can ask whether existing doctrine governing, say, pen registers, was created with a program like PRISM in mind? Do the features of these programs remove them from the rationales that led to previous doctrines governing practices, whether seizures or subpoenas, that are different in scale or kind? The capability to derive personal privacy-invading profiles from metadata alone might distinguish the two technologies.
Constitutional doctrine is a constitutional construction that is formulated by judges to put the text of the Constitution into effect. Though the meaning of the text of the Constitution may be “fixed,” constitutional construction is always “living” and evolving. How well does current doctrine work in this new situation (assuming it is relevantly new)? For example, the Katz doctrine that moved away from the “trespass” model of searches to protecting the “reasonable expectation of privacy” may well have been good insofar as it expanded privacy protection beyond the physical trespass upon one’s “persons, houses, papers and effects” or the physical seizure thereof, but very bad insofar as this judicially-created construction is used to weaken it.
None of these thoughts, however, detract in the slightest from the need to understand existing doctrine as accurately as possible, which Orin, in the form of a brief and accessible blog post, has performed the service of helping us do. And I should underscore Orin’s tentative suggestion that, depending on the facts, the seizure of telecommunication companies records might be actually be unconstitutional under existing doctrine.
Moreover, notice how even a knowledgeable and informed Fourth Amendment expert like Orin is forced to speculate about the nature of the programs he is evaluating and the legal rulings of the FISC upholding these practices. This implicates the second of the problems I identified in my op-ed: Is the secret nature of the legal rulings upholding these practices consistent with the Fifth Amendment’s requirement of “the due process of law”? Not only does the public not know the content of these opinions. Neither do the affected companies, whose lawyers were presumably not allowed even to participate in the nonadversarial ex parte proceedings. Can anyone with standing petition the Supreme Court to review the rulings, or is the secret FISA court now functioning as the Supreme Court too? (There may well be a statutory answer to this question, and I will update this post if I learn what it is.)
Finally, there is the most basic point I made about the nature of popular sovereignty and the republican form of government in which the people are the principals or masters who are expected to provide the ultimate check on their agents or servants. How is this possible given the secret nature of the programs and the decisions by which they have been judicially upheld? I fully accept the fact that not everything government does, especially in wartime, can be done in the sunshine. There must be secret military operations, for instance, as well as intelligence gathering. But the nature and scope of such activities, at least in the abstract, must be known to the public who can ultimately then approve or disapprove of their use. And this is especially true of a sweeping program like PRISM that threatens to — and may already have — given the NSA, an arm of the U.S. military, and other federal agencies a power over the American polity that is most dangerous for it to possess. As others have suggested, these programs may well have been kept secret not to shield their operations from evasion by the enemy, but to shield them from accountability to the American people.
In a sense, then, one does not need to be an expert on either surveillance technology or existing Fourth Amendment doctrine to be gravely concerned about the fundamental transformation of our republican form of government into something quite different. If necessary, constitutional doctrine must evolve to come to grips with this concern or it will cease serving the fundamental purpose for which judges are empowered to engage in constitutional construction.