NSA Metadata Snooping Challenged

Oops, your metadata is showing.  Is the Government violating your Constitutional rights by intercepting your “metadata” without a warrant?  The Government is collecting information about your phone calls, text messages, and email messages -- indiscriminately. Metadata is transmission and billing information about whom you called, from what phone number, when, and for how long. This can include your location, because billing records note which cell tower your mobile phone is connecting through.

George Orwell’s book 1984 was meant as a warning. But it is shocking how many people view 1984 as a “how to” manual or blueprint for expanding their power and influence over the country. The book projects into the future how society has been heading towards a totalitarian society governed by pervasive government surveillance.

The National Security Agency (NSA) was hit with a preliminary injunction on December 16, 2013, against snooping on U.S. citizens without a warrant. Public policy lawyer Larry Klayman won the ruling from Federal Judge Richard J. Leon that NSA surveillance without a warrant particular to the individual violates the U.S. Constitution.

Judge Leon explained in his 68-page opinion: "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval."

Larry Klayman has amended his lawsuit against the NSA and has now filed a motion to certify the amended lawsuit (“Klayman III”) as a class action. The class would be the largest class action in history, with possibly a hundred million U.S. citizens who are users of communication technology indiscriminately spied on by the NSA. Klayman is a former U.S. Department of Justice prosecutor who founded Judicial Watch, and hired Tom Fitton there. Klayman then left for a time to run for U.S. Senate in Florida. He then started Freedom Watch and has continued litigating against government abuse, deception, and corruption.

It’s like this: In 1775, British soldiers break down your door, ransack your house, and examine all of your papers. They write down who sent you letters with addresses and information about whom you communicated with, and how often. But they don’t take the actual content of your letters and papers. So would that be okay as long as they don’t actually read the body of your letters?

Of course it would not be okay. Our modern police and consumer advocates warn us about how much thieves can learn simply because newspapers pile up outside the door while we are on vacation.  One could tell a tremendous amount about you from knowing whom you write to, who writes to you, how frequently, and what other papers you have, about what. 

Even in the 1775 world of mere paper such metadata would have been a major invasion of privacy. The same police who remind us that thieves know when to break in to our houses by watching from the outside also argue in court that they can collect information about your communications without a warrant.

Such abuses sparked the American Revolution against the reign of King George. To ensure that the abuses before the American Revolution would no longer be tolerated, the Fourth Amendment to the U.S. Constitution mandates that:

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.

Note that the Constitution commands the right of the people to be secure “in their persons” against “unreasonable searches and seizures.” The Fourth Amendment does not limit its protections to only your home. Your person goes with you wherever you go. The Constitution mandates that your right to be secure “in your person” cannot be violated.

Similarly, the Fourth Amendment commands that the right of the people to be secure “in their papers and effects” shall not be violated. If you are carrying your papers and effects on the public sidewalk or in your car, the Fourth Amendment still commands that the Government may not violate your right to be secure “in your papers.” 

Yet constitutional law has become nothing more than “excuse management.” Defining what is an “unreasonable” search or seizure, the Federal Courts have thrown the Fourth Amendment out with the trash. Inventing the non-constitutional concept of an “expectation of privacy,” the Federal courts say that once you walk out of your house, you have no Fourth Amendment rights.  You have no expectation of privacy once you walk through the front door.  And so the police can examine anything without a warrant.

For this reason, the Federal Courts have ruled that the United States Postal Service can photograph the outside of every envelope mailed through the U.S. mails. And they do. And the Government argues it can intercept and monitor – without a warrant – the “metadata” of your phone calls and emails.

Similarly, on April 29, the U.S. Supreme Court heard oral argument on whether the police can search the contents of your smart phone during a routine arrest or stop. In Riley v. California, a driver was stopped for expired tags, and the police found guns. They then searched through the data on his smart phone, without a warrant. The police used the data to convict Riley of other felonies they wouldn’t have known about without searching through his computer files.

Of course, these days a smart phone is often a full-blown computer that may contain all of your life’s data and history. Yet so far have we fallen that the government argues this with a straight face. 

We learned from Edward Snowden that the Government is collecting metadata indiscriminately on tens of millions of U.S. citizens. That means they do not have probable cause or a warrant. They did get a court order under the Foreign Intelligence Surveillance Act (FISA). But a blanket court order covering millions of people at once doesn’t qualify. The Constitution requires “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.” A blanket court order that is not specific to an individual violates this requirement.

One of the weaknesses of our judicial system of precedents is that erroneous, strained, or even crazy decisions have to be treated seriously by judges and lawyers as if those precedents make sense. Our courts have already departed from the actual U.S. Constitution. So we are forced into viewing these things with multiple personalities. The Constitution clearly says one thing. But the U.S. Supreme Court’s previous decisions say something else. And we have to combine these two alternate universes.

As a result, our courts operate on the principle that mistakes once made must be forever made again and again. Our system of precedential justice is designed for the repetition and spread of errors. The NSA lawsuits now underway may cause the courts to either rethink this area or endorse a complete loss of our privacy rights.

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