Mass Collection of U.S. Phone Records Violates the Fourth Amendment

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Illustration by Thomas James

Tuesday, October 7, 2014


Some say that the mass collection of U.S. phone records is a gross invasion of privacy. Others say that it is necessary to keep us safe. But what does the U.S. Constitution say? "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.” Is collection of phone records a “search” or “seizure"? If so, is it “unreasonable”? Does it require a particularized warrant and probable cause? These are among the most consequential—and controversial—constitutional questions of our time.


Presented in partnership with the National Constitution Center.    

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  • Abdo90

    For

    Alex Abdo

    Staff Attorney, ACLU Speech, Privacy and Technology Project

  • Wydra90px

    For

    Elizabeth Wydra

    Chief Counsel, Constitutional Accountability Center

  • Baker90px

    Against

    Stewart Baker

    Fmr. Assistant Secretary, Homeland Security & Fmr. General Counsel, NSA

  • Yoo90px

    Against

    John Yoo

    Professor of Law, UC Berkeley & Fmr. Justice Department Lawyer


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      MODERATOR

      John Donvan

      Author & Correspondent for ABC News

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Abdo90

For The Motion

Alex Abdo

Staff Attorney, ACLU Speech, Privacy and Technology Project

Alex Abdo is a staff attorney in the American Civil Liberties Union’s Speech, Privacy, and Technology Project. Currently, he is counsel in the ACLU’s lawsuit challenging the NSA’s phone-records program (ACLU v. Clapper). Abdo has been involved in the litigation of cases concerning the Patriot Act, the Foreign Intelligence Surveillance Act, the International Emergency Economic Powers Act, and the treatment of detainees in Guantánamo Bay, Afghanistan, Iraq, and the Navy brig in South Carolina. He is a graduate of Yale University and Harvard Law School. Prior to working at the ACLU, he served as a law clerk to the Hon. Barbara M.G. Lynn, United States District Judge for the Northern District of Texas, and to the Hon. Rosemary Barkett, United States Circuit Judge for the 11th Circuit Court of Appeals.

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Wydra90px

For The Motion

Elizabeth Wydra

Chief Counsel, Constitutional Accountability Center

Elizabeth Wydra is Constitutional Accountability Center’s Chief Counsel. She frequently participates in Supreme Court litigation and has argued several important cases in the federal courts of appeals. She joined CAC from private practice at Quinn Emanuel Urquhart Oliver & Hedges in San Francisco, where she was an attorney working with former Stanford Law School Dean Kathleen Sullivan in the firm’s Supreme Court/appellate practice. Previously, she was a supervising attorney and teaching fellow at the Georgetown University Law Center appellate litigation clinic, a law clerk for Judge James R. Browning of the U.S. Court of Appeals for the 9th Circuit, and a lawyer at Shaw Pittman, a D.C. law firm. As a legal expert, she has appeared on television and public radio, has written for various media outlets and blogs, and has been published in several law reviews.

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Baker90px

Against The Motion

Stewart Baker

Fmr. Assistant Secretary, Homeland Security & Fmr. General Counsel, NSA

Stewart Baker practices law at Steptoe & Johnson, covering homeland security, cybersecurity, data protection, encryption, lawful intercepts, intelligence and law enforcement issues, and foreign investment regulation. He is the author of Skating on Stilts – Why We Aren't Stopping Tomorrow's Terrorism, a book on the security challenges posed by technology, and he writes on cybersecurity and privacy law at www.skatingonstilts.com. From 2005 to 2009, Baker was the first assistant secretary for policy at the Department of Homeland Security. During 2004 and 2005, Baker served as general counsel of the WMD Commission investigating intelligence failures prior to the Iraq war. From 1992 to 1994, he was general counsel of the National Security Agency, where he led NSA and interagency efforts to reform commercial encryption and computer security law and policy. His book on these topics, The Limits of Trust: Cryptography, Governments, and Electronic Commerce, analyzes encryption and authentication laws in dozens of countries.

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Yoo90px

Against The Motion

John Yoo

Professor of Law, UC Berkeley & Fmr. Justice Department Lawyer

John Yoo is the Emanuel Heller professor of law at UC Berkeley and a visiting scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare (2014), as well as several books addressing presidential power, national security, and the Constitution: Taming Globalization (2012); Confronting Terror (2011); Crisis and Command (2010); War by Other Means (2006); and The Powers of War and Peace (2005). Yoo has published numerous scholarly articles in the nation’s leading law journals and is a regular contributor to The Wall Street Journal, New York Times, Washington Post, Los Angeles Times, National Review, and The Weekly Standard. He has served in all three branches of government, including as an official in the Office of Legal Counsel of the U.S. Department of Justice, as general counsel of the Senate Judiciary Committee, and as a law clerk for Justice Clarence Thomas of the U.S. Supreme Court.

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Declared Winner: For The Motion

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Voting Breakdown:
 

52% voted the same way in BOTH pre- and post-debate votes (35% voted FOR twice, 13% voted AGAINST twice, 4% voted UNDECIDED twice). 48% changed their minds (7% voted FOR then changed to AGAINST, 2% voted FOR then changed to UNDECIDED, 5% voted AGAINST then changed to FOR, 0% voted AGAINST then changed to UNDECIDED, 26% voted UNDECIDED then changed to FOR, 7% voted UNDECIDED then changed to AGAINST) | Breakdown Graphic

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    20 comments

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    • Comment Link christopher Wednesday, 19 November 2014 00:17 posted by christopher

      what is the common ground in this debate?

    • Comment Link Perry Noblett Sunday, 16 November 2014 18:50 posted by Perry Noblett

      There is an amendment that says my privacy is protected. There is no amendment that says I/we will never be attacked or threatened by enemy"s. The founders, specifically Ben Franklin, said that anyone who gives up their freedom for security deserves neither.

    • Comment Link Nick Friday, 14 November 2014 13:02 posted by Nick

      Neither side ever addressed the question of how will the public ever know that drag net security measures are being successful? The side arguing against the motion will always be able to draw on 9/11 as a proof for their claim, but how do we know that had the PATRIOT act already been passed, the attacks would have been prevented? That is a rhetorical question, we don’t. To me, government spying is a blatant violation of the fourth amendment and it is a slippery slope that should be alarming to all. Nevertheless, it is happening, so the pertinent question that needs to be asked is if we are being forced to give up a constitutional right, how do we know it is not all in vain? I feel like the side arguing against the motion could have carried at least some clout had they been able to produce any amount of evidence that this infringement of our right to privacy is working.

    • Comment Link Texas Skeptic Wednesday, 12 November 2014 11:54 posted by Texas Skeptic

      It seems to me that the side against the motion, never really addressed whether the collection activities violated the 4th amendment. All they did was try to justify violating it through the standard argument of security vs privacy, because ... BOO ... there's scary stuff out there, so we had to do it.

    • Comment Link Kathleen Berger Tuesday, 28 October 2014 15:57 posted by Kathleen Berger

      http://www.pbs.org/wgbh/pages/frontline/cheney/view/
      This explains so much! Everyone in this country should watch or rewatch this!

    • Comment Link ITforMe Friday, 24 October 2014 14:30 posted by ITforMe

      As a IT Analyst for a medium sized company, and usually a person who advocates the growth of technology; I can tell you that drag net surveillance is an absolutely pervasive practice of our 4th and more importantly first amendment. We now have the capacity to store bulk data at unprecedented levels, not just meta data, but complete audio, email and video media as well.

      With the advent of HP's "The Machine", IBM TrueNorth, and Google's pursuit of quantum computing; in the next few years there we will literally have shattered the boundaries that are keeping us from accomplishing this bulk storage at unprecedented speeds of data transfer.

      It is absolutely imperative for our free act of association (and first amendment rights in general) that drag net surveillance be split into sequestering sectors (private market) if we truly want to protect our rights.

      Murdering the 1st and 4th amendment to gain a temporary level of security is the beginning of a slippery slope that will eventually lead to the complete dismantling of individual privacy with sever Orwellian' consequences *1984 is just around the corner people

    • Comment Link Vinny Tuesday, 21 October 2014 00:18 posted by Vinny

      I feel as if the majority of people miss the point of all of this.
      The NSA collection this data for our own protection and this to me sounds good my government is supposed to protect me.
      The issue I have is that our own government is effectively spying on every single one of its own law abiding citizens. If there is no evidence that I have broken any laws, that I am not in any planned way a threat to the nation.. Then why are they watching me?
      To my understanding the government collects this data directly from our telephone companies. Businesses we simply have to go through to have any standard of telecommunications. These people we have made a professional agreement will inevitably have their hands on our data. But I believe that our privacy should be a part of the "package".
      But I also completely understand how helpful it maybe for intelligence companies to have access to this sort of information in times of suspicion and dire need.

      In a way this scenario just seems like the generic police officer who knows the illegal drugs are in the house but simply does not have the means to get his search warrant. Except in this case our police is the NSA and they are able to enter into anyone's house without that warrant.

      So my proposal is this, and please feel free to disagree. I am not the most educated on the topics and I am sure many greater than I have better ideas.
      But why not force telephone companies to view our data as a matter of privacy meant only for the user. But should probable cause ever arise intelligence services may be allowed access to some sort of surveillance warrants. again if probable cause is given. And I do not see why I should not trust my own government not to abuse this, and if they do we will make our rules stricter. This is a working democracy of course.

      I believe this is the solution that has been overlooked.
      I do believe that this is our privacy being breached. And that our own government has no real reason to watch our every move. It is sad to think that is how it is now. We are the people. We are the ones they are supposed to protect.
      But we should understand that proper protection does not come without some sacrifice of our own, we cannot be so dull to think that we can have both with out losing something. And we should trust our government not to abuse our trust, but there should still be a process. To Be our government, to protect our laws, to enforce our laws. You must also respect our laws.

    • Comment Link Kathleen Berger Wednesday, 15 October 2014 13:09 posted by Kathleen Berger

      The changes in the NSA were engineered for the prospective abuse by the GOP under the guise 9/11 and National Security!
      John Yoo believes justification for the mass collection of U.S. phone records solely due to 9/11 and terrorism, without question. Pressured by fear of not acting strongly enough resulted in irresponsible decision making leading to the violations to Fourth Amendment to the United States Constitution. Yoo has the nerve to refer to the opposition as being radical when in truth he seems oblivious to any possible ulterior motives concealed by the administration at that time. The abuses today are perpetrated by a powerful minority exploiting the majority by systematically dismantling the US Constitution.

    • Comment Link commuted Wednesday, 08 October 2014 09:35 posted by commuted

      A reasonable argument could be made that there is no viable 4th Amendment at all. Police are seizing money from motorists, that's pretty much on the nose. In Philadelphia homes are seized without court orders. Oh ya, people read your e-mail too. We might be closer to a failed Constitutional state than we'd like to admit. Time to start calling it what it is.

    • Comment Link Tom Cross Wednesday, 08 October 2014 00:22 posted by Tom Cross

      We should be discussing whether collection of U.S. phone records violates the First Amendment Freedom of Association. The records of who you call, and when, and how long - those are records of who you associate with. The whole purpose of collecting them is to be able to connect you with suspects if you'd talked to them. If the government is keeping tabs on everyones associations, all of the time, doesn't that impede your freedom to associate with whomever you want? The whole problem with this is that people might choose not to make a particular phone call because they don't want a permanent record of their association with the person at the other end to be stored by the government. Thats a choice not to associate, that someone is making because of this program - so the program really threatens the freedom to associate.

    • Comment Link Don Tuesday, 07 October 2014 19:53 posted by Don

      One challenge with the against side is they assume our digital footprint is something we have optionally created. We do not have a choice but to leave a digital trace of our calls and most most daily activities. I believe supporting the constitutionality of collecting call data is the first step in authorizing more broad searches. If we give this inch now we will found down the road we have given a foot in the future. I support the proposed position that this violates the 4th Amendment.

    • Comment Link Jeff Pierce Tuesday, 07 October 2014 18:44 posted by Jeff Pierce

      The PRIMARY CORE PROBLEM with this issue is the courts have invented tests which claim that privacy is the way to judge reasonableness, and that the interests of the government should be balanced against the invasion of privacy.

      The fallacy is the 4th amendment doesn't say "unless you're afraid". Quite simply, the principle of law enforcement producing a warrant to collect private information (held by individuals or non-govermental groups) has worked for centuries. There is no validity to say "go collect potential future evidence in case we need it." If that were so, the logical extension is the government rolls out wireless cameras to all houses and films you 24x7, then would "search" the content if they had reasonable suspicion (a lower standard often used in place of probable cause). There is ABSOLUTELY NO DIFFERENCE in concept. The fact this is at your house doesn't negate the analogy - you may make a call from your house for example and the time of that call made from your private residence is part of a record.

      The "security threat" is underwhelming. No US civilian has been killed by an organized terrorist plot by a funded, organized terrorist organization on US soil for several years.

      We have thousands of US citizens killed every year by funded and organized gangs in our cities....yet we don't prearrest their members or violate their constitutional rights...and this is a far more prevalent, proven threat to our society. "Because, 9-11" is not a valid excuse to violate the constitution - plain and simple.

    • Comment Link Dick MIlls Tuesday, 07 October 2014 09:05 posted by Dick MIlls

      I think that the debate proposition is the wrong issue. It is not whether mass collection is legal but whether it is tolerable by the American People. I hope this point gets mentioned.

      Snowden's point was that bulk collection had been approved by all three branches of government as being legal, but that the American Public would not tolerate it if they knew about it. Subsequent events have proven him right. The public was outraged. All three branched of government have since changed their minds and not favor cutting back on bulk collection.

      Point 2: An article on "The Intercept" last week said that the government defines "collect" as "collect plus action" meaning that they don't consider the collection complete until someone searches the data. That defies the common language definition of collect. Please make sure that the moderator makes it clear that the word "collect" in the debate proposition means the common language meaning of the word.

    • Comment Link Srinivasan Tuesday, 07 October 2014 00:00 posted by Srinivasan

      Collecting all records, not just phone records, of every individual, robot, things around us may appear reasonable, if not necessary, to prevent unlawful events from occurring. And collecting indiscrimately may give a false sense of that all records are equal, without discrimination. But that is not always true as it evolves over time. If a trait is identified as potentially harmful after several years, then the data collected could be mined to discriminate against those exhiting that trait even though no harm has been done. The real question is not whether indiscriminate data collection and retention improves the quality of life. I'd argue that it does not, and would not once people become aware of the data out there that is against them. A "norm" would emerge based on contemporary, but faulty or incomplete, data science, and people would be hesitant to deviate or challenge the "norm". That, I think, would hinder the evolution of humans to higher forms.

    • Comment Link UBR123 Monday, 06 October 2014 22:55 posted by UBR123

      According to the Supreme Court as of lately? I'd say yes--for now. Refer to U.S. v. Jones (2012). Though it pertains to Fourth Amendment violations via long-term GPS tracking, the Court interprets the long-term accumulation of information as a violation of one's reasonable expectation of privacy (set forth by Katz v. U.S., 1967). Until the Court can define specifically when and how such accumulation becomes a search, we can only speculate. This is of course assuming we will continue to rely on the Katz test.

    • Comment Link Julie Stroeve Sunday, 05 October 2014 18:20 posted by Julie Stroeve

      the operative here is "national security." it's never defined. it's always used to defend violations of the Constitution, foreign policy, oil policy (it's in America's interests -- how many times have you heard this from a microphone?) among a miriad of other uses of anti-Constitutional actions. and it's always a winner in a debate about wars and invasions. I'll change my vote as soon as an expert defines "national security" and "in America's interests" for me. this debate will be won by the man (yes, man) who can make the in-America's-best-interest (national security) argument. trust me.

    • Comment Link Anon Thursday, 02 October 2014 16:20 posted by Anon

      Although at first glance, the metadata seems to be far less intrusive than the content, in aggregate, metadata reveals FAR much more about an individual than the content of their phone calls. When collected in mass, metadata gives whoever is in possession of it a detailed map of an individuals life. This is including who they talk to, how long they speak, and where they are. A good visualization of this is when Malte Spitz sued the telecom company for his cell-phone metadata. What was returned was essentially a map of his life.

      http://www.zeit.de/datenschutz/malte-spitz-data-retention

      This illustrates the public's essential misconception about this debate, they simply don't understand HOW this data can be abused. It shouldn't ever be thought of or associated with a wiretap. Mass collection of metadata makes it possible to create a detailed map of every single persons movements and communications.

      Clearly the founding fathers could not have imagined this as a possibility. Thus we have to understand the basic right that the 4th Amendment is protecting: Privacy. Allowing the mass collection of communications CLEARLY violates this right. Arguing on the technicalities only serves to dilute the debate with semantics.

    • Comment Link W. Webb Ferrall Thursday, 02 October 2014 11:30 posted by W. Webb Ferrall

      The scale of indiscriminate record-keeping combines with frailty of computer search, and potential for abuse, making this unacceptable.

    • Comment Link MCH Thursday, 04 September 2014 15:06 posted by MCH

      The metadata on phone calls is not the same thing as the content of those calls, which was the point of obtaining a warrant for a wiretap.

    • Comment Link KLS Thursday, 21 August 2014 15:39 posted by KLS

      How is it even possible to argue against this? Obviously this particular issue could not be addressed in the Constitution because when the law was written the idea of a mobile device that allows you to communicate with anyone wherever they are was an inconceivable fantasy. If we as a nation want to continue to abide by the Constitution then clearly the law must continuously be interpreted and updated to apply to the modern world (which it is, every day by the Supreme Court). If we have decided that tapping someone's home phone without a warrant is illegal, logically the same protection has to be extended to wireless devices. Just because it is easy to collect information from cell phones doesn't make it any less illegal. It will be very interesting to see what the other side comes up with on this one.

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