Just Why Are All These Intrusive Programs Legal?

By Robert H.

This is the only picture saved to the blog that could possibly fit
a post about constitutional issues, and I was too lazy to look on
wikimedia commons for a better one.

I've been blogging about some national security programs letting the government access  data related to our phone calls, plus some content held by foreigners outside the US (possibly, people are still wrangling over what exactly PRISM is).  Here's why they are probably legal:

1.  The Supreme Court has said you don't have a reasonable expectation of privacy in meta-data collected by third parties, like when the phone company keeps track of whom you are calling.  They've extended this to all sorts of information you've handed over to third parties.  The idea is that when you fork info over to other people, you run the risk of them ratting you out and so shouldn't be surprised if the government gets its hands on the info.

As a result, the government can constitutionally gather this information either with a subpoena to or with the consent of the third party.  The government does not need probable cause if it goes with a subpoena, since the that is thought to be less intrusive than a search (you gather the relevant documents yourself, at your leisure, selecting what you think is required, and then bring it to court).  There are some limits to how broad a subpoena can be, but the government only need bother with a subpoena in the first place if the third parties holding your data put up a fight.  If they are working with the government and handing over all the data voluntarily, there is pretty much no limit to what the government can ask for.

So, under the constitution all your meta data are belong to the government.

2.  That said, there are still often statutory protections that keep the government from gathering this stuff.  Sadly, in this case the patriot act has removed those.   The result is that the feds don't need probable cause to access third party routine business records when national security is on the line (or at least, when they say it is).

As a wrinkle on that, it does look like either the courts or the administration has imposed a reasonable suspicion standard on anyone who actually wants to access this data.  Which is nice, I guess.  A "reasonable suspicion" standard is a lower burden than probable cause -- think of it as the difference between thinking something is probably true vs having reason to think it might be true.

3.  In the case of PRISM, Courts have held that the executive has inherent power to search the contents of communications (IE, wiretap) if his purpose is gathering foreign intelligence.  Even better (from their perspective), the executive can pretty much spy like a fool on foreigners outside the US.

So that is that.