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

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  • Does the Constitution Protect Your Smartphone?

    Clip: UC Berkeley law professor John Yoo and Elizabeth Wydra from the Constitutional Accountability Center debate how smartphones and digital technology fit into Constitutional law.

  • Do New Terrorist Threats and ISIS Justify NSA Spying?

    Clip: Constitutional law and security experts debate whether new terrorist threats such as ISIS and cyber terrorism justify surveillance and NSA phone tapping.

Debate Details

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.

The Debaters

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... Read More

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... Read More

Against the motion

Stewart Baker

Attorney & Fmr. Assistant Secretary for Policy, Department of Homeland Security

Stewart Baker is a partner in the law firm of Steptoe and Johnson in Washington, D.C. His law practice covers cybersecurity, data protection, homeland... Read More

John Yoo

Law Professor, Berkeley & Fmr. Attorney, Justice Department

John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute... Read More

Where Do You Stand?

For The Motion
  • The NSA's metadata collection is both "indiscriminate" and an "arbitrary invasion" that violates the Fourth Amendment.
  • The long-term collection of phone metadata "reveals a wealth of detail about familial, political, professional, religious, and intimate relationships" that once could only be obtained "by examining the contents of communications."
  • Various government officials have made clear that there are alternative means and modes of surveillance available, making such widespread violations of our Fourth Amendment rights even more unreasonable.
Against The Motion
  • Once an American knowingly hands over information to a third party (i.e. a phone company), there is no longer a reasonable expectation of privacy. While the content of the calls remains protected under the Fourth Amendment, the metadata does not.
  • A Fourth Amendment search does not take place until the collected data is analyzed, which occurs only with probable cause on a very small fraction of the records.
  • Because this surveillance concerns national security, the government does not need to meet the Fourth Amendment protections reserved for domestic criminal activity. Data mining falls squarely within the president's wartime powers of intelligence gathering; as long as the information is not used in criminal proceedings, there is no need for individualized warrants or probable cause.

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The Research

The Research

NSA Collecting Phone Records of Millions of Verizon Customers Daily

Glenn Greenwald
June 5, 2013

Under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

We Need NSA Surveillance

Gerald Walpin
August 16, 2013

The NSA examines only the addressee and sender on e-mails, and telephone numbers called and called from. The Supreme Court has long held that such information is not privacy-protected by the Fourth Amendment.

The NSA's Surveillance Is Unconstitutional

Randy E. Barnett
July 11, 2013

Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs.

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