NSA Surveillance and Interference with Citizens' Property Rights

By Woodburn, Nichole | Faulkner Law Review, Spring 2016 | Go to article overview

NSA Surveillance and Interference with Citizens' Property Rights


Woodburn, Nichole, Faulkner Law Review


INTRODUCTION

In the dissenting opinion of Olmstead v. United States, Justice Brandeis discussed the far-reaching consequences of the government's warrantless wiretapping. (1) That opinion, written nearly a century ago, can today be described as prophetic, as the government has indeed utilized advances in technology to increase the scope of its invasions into citizens' domains. (2) As the Snowden leaks revealed in 2013, the day has come to pass where the government may, without a warrant, collect the digital communications of its citizens, thereby interfering with citizens' property rights.

On June 6, 2013, the first leaks from Edward Snowden were published, revealing a governmental program designed to surveil domestic communications without warrants, referred to as the "Section 215 telephony metadata program." (3) Prior to the advent of this news, the American citizenry was aware only of the government's warrantless collection of communication of those with suspected ties to Al Qaeda. (4) Public reaction to the news of the warrantless surveillance was both powerful and negative. (5) Seven months after the initial Snowden leaks, sixty-three percent of Americans stated that they were dissatisfied with the government's surveillance of U.S. citizens. (6) The National Security Administration (NSA) surveillance programs were listed among the top ten concerns of Americans at the beginning of 2014. (7) It is the opinion of this paper that the strong reaction Americans felt was related to a perceived invasion of their right to exclude embedded in their property interest in their digital communications.

In a time when nearly all communication has become digital and the internet has become a necessary means of navigating modern life, the ease of access to these communications has increased. Over that same timespan, the concept of property has also undergone changes, making it more difficult to identify what is "property" with all the rights that title entails. (8) Additionally, the Fourth Amendment has changed shape in response to advents of technology. (9) Where the Fourth Amendment protects "persons, houses, papers, and effects," the modern analogy could be emails or text messages. (10)

It is now important to distinguish between the different NSA programs and identify which specific NS A program this paper seeks to analyze. This paper seeks to analyze whether citizens have a property interest in the telephony metadata which were turned over to the government without notification to communicants or the public at large and were not the subject of individualized warrants. Section 215 of the Patriot Act initiated this program. Many communications entities obtained Foreign Intelligence Surveillance Act (FISA) warrants. However, the first company and the only warrant the public has access to is the Verizon Wireless order imposing a duty upon Verizon to turn over all metadata details, including the length of a call; the number from which the call was made; the phone number called; and, most controversially, the routing information, which can "sometimes (although not always) convey information about a caller's general location." (11)

The telephony metadata program is unique not only in its difference from the information collected but also in the procedure by which it is obtained. There are other controversial NSA programs also deserving of an analysis; however, the biggest difference between the telephony metadata program and any others (at least of those we know of) is the telephony metadata program involved a dragnet of information based upon single orders, the merits of which will be discussed below. Other programs, such as the controversial program PRISM, authorize the collection of the contents of the call; the telephony metadata program does not. (12) This paper focuses solely on the telephony metadata program because it is this program that is most attenuated from the warrant ordering the collection of the things sought. …

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