Bulk Metadata Collection: Statutory and Constitutional Considerations

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces mecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of Smith v. Maryland, the privacy invasions resulting from the universal use of pen registers and trap and trace devices, and the advent of new technologies. Over the past decade, tension has emerged between the view that new technologies should be considered from the perspective of trespass doctrine and the view that Katz’s reasonable expectation of privacy test should apply. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines. Under trespass doctrine, the primary order for the telephony metadata program amounts to a general warrant — the elimination of which was the aim of the Fourth Amendment. Under Katz, in turn, citizens do not expect that their telephony metadata will be collected and analyzed. Most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. FISA reform is necessary to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of statutory and constitutional law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs,” and requiring the government to demonstrate past effectiveness prior to obtaining renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.