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Is the Storing of Metadata by the United States Government a Search in Violation of the 4th Amendment?

-- By DavidHammond - 02 Mar 2017

Introduction What if I had a magic ball that sucked up every spoken conversation, written correspondence or activity anyone ever engaged in? What if my magic ball had unlimited storage capacity and an ability to quickly sift through the information to tell me anything I wanted to know? What if the magic ball were in the hands of the government?

Existing normative frameworks and jurisprudence for the law of war, criminal law, and international law are generally applicable to every dimension of the cyber domain. The challenge for policymakers is the application of existing frameworks to cyber and articulating principles that government agents can use to determine their scope of authority while protecting US networks and critical infrastructure. The same is true for the intentional or incidental collection of information regarding a US person. Indeed there is a distinction between citizen and non citizen in relation to the rights afforded to them. Generally, the Constitutional protections apply to citizens and places under US control. Difficulty arises when there is conflation between citizen and non-citizen or uncertainty about whether US control exists.

I. US Metadata Policy

Subsection A. Edward Snowden showed that the United States systematically maintained information concerning US persons. US intelligence analysts defended the collection by saying it was incidental to their duties. To better understand the paradigm government cyber operators work in it is necessary to divide cyber activity into three frameworks:

Subsub 1. criminal (lawlessness, typically attributed to individuals)

Subsub 2. acts of war (attacks, typically attributed to a nation-state)

Subsub 3. or espionage (criminal, but generally accepted international activity that does not modify electronic data but does look at it)

Subsection B. For the most part, intelligence agencies were involved in defending US networks and infrastructure from the attacks. However, according to Snowden, active espionage targeting foreign citizens was being conducted by the US. In the collection of foreign records, incidental collection of US citizens occurred. This information is called metadata.

II. Snowden Aftermath

Subsection A. In the aftermath of the Snowden leaks, the US government put additional controls on the maintenance of metadata. For example, telecommunication companies would be required to maintain the data and only turn it over to the government if there was a warrant. This directly took some of the metadata out of governmental hands and underscored the importance of particularity in search warrants. In the digital age, protection of individual autonomy hinges on how metadata is used. As described above, this question is partly answered by policymakers, putting regulatory safeguards within the intelligence system to ensure personal information is not being improperly used. The other part should be answered by the Supreme Court.

III. Supreme Court Jurisprudence

Subsection A. Supreme Court jurisprudence from US v. Weeks until present has attempted to put searches in a tidy box with neatly defined parameters:

Subsub 1. a quest for evidence

Subsub 2. by a government agent,

Subsub 3. where a reasonable expectation of privacy exists

Subsection B. Is collection of Metadata a search?

Under that very specific definition, the unfiltered capture of information would not constitute a search. Even if justices believe that Supreme Court 4th Amendment jurisprudence is flawed, the Supreme Court is unlikely to make sweeping moves toward redefining searches to include metadata. A more realistic possibility is that the Supreme Court could limit the government’s use of the metadata. Something akin to the exclusionary rule could be used to put systemic safeguards in place.

IV. If Deemed Constitutional, Is it Good Policy?

Collecting and storing massive amounts of information is not good policy. To date, the program has not thwarted a terrorist plot. Further, the information being stored could be used for nefarious purposes. An unscrupulous presidential administration could use the program to locate and silence political dissidents. For example, during the Obama administration, the IRS was accused of targeting conservative organizations for audits and regulatory enforcement. If US cyber capability were pointed internally and used for nefarious ends, a truly despotic state could be established. Although unlikely, procedural safeguards voluntarily imposed by policy makers and mandated by the judiciary will prevent the infringement on individual liberty.

Conclusion

The Magic Ball exists. For lawyers and policymakers, the question is how to maintain a free society with the existence of this Magic Ball. One answer is for individuals to cease using electronic means of communication. That seems backward thinking. Another option is to put safeguards in place that prevent the unauthorized use or dissemination of information. Like nuclear weapons, the mere existence does not precipitate use. I am optimistic that we can put adequate controls that limit dissemination and maintain individual liberty. As President Eisenhower eloquently stated: “Only a sturdy and vigilant citizenry, deeply dedicated to liberty and alert to any external or internal encroachment, can sustain freedom. Where sturdiness and vigilance, where clarity of vision are weakened… freedom come[s] face to face with its deadliest internal enemy, the misled and complacent citizen.”

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