A cogent review of the legal & constitutional issues from Laurence Tribe.
BOSTON GLOBE
Bush stomps on Fourth Amendment
By Laurence H. Tribe | May 16, 2006
THE ESCALATING controversy over the National Security Agency's
data mining program illustrates yet again how the Bush
administration's
intrusions on personal privacy based on a post-9/11 mantra of
''national
security" directly threaten one of the enduring sources of that
security:
the Fourth Amendment ''right of the people to be secure in their
persons
houses, papers, and effects, against unreasonable searches and
seizures."
The Supreme Court held in 1967 that electronic eavesdropping is a
''search" within the meaning of the Fourth Amendment, recognizing
that
our system of free expression precludes treating each use of a
telephone
as an invitation to Big Brother to listen in. By 2001, the court had
come
to see how new technology could arm the government with information
previously obtainable only through old-fashioned spying and could
thereby convert mere observation -- for example, the heat patterns
on a
house's exterior walls -- to a ''search" requiring a warrant. To
read the
Constitution otherwise, the court reasoned, would leave us ''at the
mercy of advancing technology" and erode the ''privacy against
government that existed when the Fourth Amendment was adopted."
This decision, emphasizing the privacy existing when the Bill of
Rights
was originally ratified in 1791, was no liberal holdover in
conservative
times. Its author was Justice Antonin Scalia. Justice Clarence Thomas
joined the majority. Justice John Paul Stevens wrote the dissent.
This
issue should not divide liberals from conservatives, Democrats from
Republicans.
These two decisions greatly undermine the aberrant 1979 ruling on
which defenders of the NSA program rely, in which a bare Supreme
Court majority said it doubted that people have any ''expectation of
privacy in the numbers they dial," since they ''must 'convey' [such]
numbers to the telephone company," which in turn can share them with
others for purposes like ''detecting fraud and preventing violations
of
law." Unconvincing then, those words surely ring hollow today, now
that information technology has made feasible the NSA program whose
cover was blown last week. That program profiles virtually every
American's phone conversations, giving government instant access to
detailed knowledge of the numbers, and thus indirectly the
identities, of
whomever we phone; when and for how long; and what other calls the
person phoned has made or received. As Justice Stewart recognized in
1979, a list of all numbers called ''easily could reveal . . . the
most
intimate details of a person's life."
The Fourth Amendment's guarantee against unconstrained snooping
by Big Brother -- made bigger by an onrush of information-trolling
technology that few foresaw in 1979 -- is bipartisan. It is a
guarantee
that cannot tolerate the pretense that numbers called from a private
phone, unlike the conversations themselves, are without ''content."
That
pretense is impossible to maintain now that the technology deployed
by
NSA enables the agency to build a web with those numbers that can
ensnare individuals -- all individuals -- just as comprehensively and
intimately as all-out eavesdropping.
Even if one trusts the president's promise not to connect all the
dots to
the degree the technology permits, the act of collecting all those
dots in
a form that permits their complete connection at his whim is a
''search."
And doing it to all Americans, not just those chatting with Al
Qaeda,
and with no publicly reviewable safeguards to prevent abuse, is an
''unreasonable search" if those Fourth Amendment words have any
meaning at all.
The legal landscape, too, has changed decisively since the court's
majority opined that Americans have no expectation of privacy in the
numbers they call. Rejecting the accuracy of that description even
decades ago, Congress, which was more vigorous then in its protection
of privacy, enacted statutes reassuring us that our phone records
would
not be shared willy-nilly with government inquisitors without court
orders. So it can no longer be said, if it ever could have been,
that our
''expectations of privacy" about whom we call are groundless or that
we
''consent" to reconstruction of our telephone profiles by using one
of the
phone companies that, unbeknownst to us, have agreed to share such
information (although, we're told, not the content of every call)
with
NSA on demand.
Privacy apart, this president's defiance of statutes by the dozens is
constitutionally alarming. But the matter goes deeper still. Even if
Congress were to repeal the laws securing telephone privacy, or if
phone companies found loopholes to slip through when pressured by
government, the Constitution's Fourth Amendment shield for ''the
right
of the people to be secure" from ''unreasonable searches" is a
shield for
all seasons, one that a lawless president, a spineless Congress, and
a
complacent majority of citizens -- who are conditioned to a
government
operating under a shroud of secrecy while individuals live out their
lives
in fishbowls -- cannot be permitted to destroy, for the rest of us
and our
children.
Laurence H. Tribe is a professor of constitutional law at Harvard Law
School and the Carl M. Loeb University Professor.
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