The Federalist Society’s journal Engage has an interesting Symposium on the National Security Agency’s Bulk Data Seizures and FISA Surveillance Programs. The symposium includes my very brief essay with Cato’s Jim Harper, Why NSA’s Bulk Data Seizures Are Illegal and Unconstitutional. In it we contend that:
Rather than airy and untethered speculations about “reasonable expectations,” the courts should return to the traditional—and more readily administrable—property and contract rights focus of Fourth Amendment protection reflected in the majority opinion in Katz. Courts should examine how parallels to the walls of the home and the phone booth in Katz conceal digital information are employed by the people to preserve their privacy.
An inquiry into the physical and legal barriers people have placed around their information — for example, by using passwords to restrict access to their email, or entering into terms of service agreements that include privacy protections — can generally answer whether they have held it close. This establishes the threshold of personal security that the Fourth Amendment requires a warrant to cross. No distinction should be made between sealing a letter before handing it to the postman, taking a phone call in a secluded phone booth, password-protecting one’s email, or selecting a communications company with a suitable privacy policy.
In short, the physical and legal barriers people place around their information define both their actual and “reasonable” expectations of privacy and should provide the doctrinal touchstone of the search warrant requirement. When one has arranged one’s affairs using physics and the law of property and contract to conceal information from preying eyes, government agents may not use surreptitious means and outré technologies like thermal imaging to defeat those arrangements without obtaining a warrant that conforms to the requirement of the Fourth Amendment. In Jones, the Court took an important step in this direction. It should now recognize the privacy of informational data that has in fact, in the words of the Fourth Amendment, been “secure[d]” by sufficient physical and legal protections.
The other symposium articles are:
Before the House Committee on the Judiciary Oversight Hearing into the Administration’s Use of FISA Authorities Testimony of Steven G. Bradbury
NSA is in Trouble for Good Reason by Jeremy Rabkin
Oversight Hearing on FISA Surveillance Programs Committee on the Judiciary, United States Senate Testimony of Stewart A. Baker
Workshop Regarding Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act Privacy and Civil Liberties Oversight Board Testimony of Nathan A. Sales
Before The House Committee on the Judiciary Oversight Hearing on The Administration’s Use of FISA Authorities Testimony of Jameel Jaffer & Laura W. Murphy
First Principles: Are Judicial and Legislative Oversight of NSA Constitutional? by Robert F. Turner
Slouching Toward Mordor by Grover Joseph Rees