May 2015 Bar Bulletin
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May 2015 Bar Bulletin

Edward Snowden: Hero or Traitor?

By G. Michael Fenner


Second of two parts

(The first part of this article, which appeared in the April issue of the Bar Bulletin, concluded with a discussion of the statutory law that applies to the National Security Agency's collection of Americans' personal information and communications.)

B. Constitutional Law

And what about the Constitution?

Search and Seizure: When thinking about these surveillance cases we tend to jump to the Fourth Amendment. Is this an unreasonable search and seizure? Well, in many ways the Fourth Amendment is irrelevant here. It is self-executing in criminal trials. There is no trial here.

Regardless, the NSA argues that the Fourth Amendment does not apply to the collection of metadata. First, they argue that the Fourth Amendment applies only to "law enforcement" and they are not involved in law enforcement. They are just gathering data relevant to national security and foreign affairs.1 Second, they cite a 1979 Supreme Court opinion, Smith v. Maryland.2

A pen register is a device that records all numbers called from a particular telephone landline. A victim was being called by the man who had robbed her. At the phone company, and without a warrant, the police installed a pen register on Smith's line. Sure enough, he called the victim. Smith argued that the pen-register evidence was an unreasonable search and seizure.

The Supreme Court held that Smith did not have an expectation of privacy regarding phone numbers he called. First, those numbers were automatically given out to a third party-the phone company that routed the calls to the recipient. Second, if Smith did have a personal expectation of privacy, it was not "reasonable." No warrant required. The intelligence community argues that the kind of information they are gathering is automatically released to third parties-phone companies; internet service providers; routers; web sites; tracking services; Google; and the like.

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