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The NSA v. the Fourth Amendment


I have a piece up on yesterday’s major NSA ruling. The arguments it advances for the unconstitutionality of the program are devastating. And while this one is perhaps the least important in Fourth Amendment terms, I think it’s worth emphasizing as well:

A warrantless, suspicionless search that abridges a legitimate expectation of privacy might be “reasonable” if it was justified by a compelling security interest that cannot be addressed any other way. In perhaps the strongest passages of Justice Leon’s opinion, he persuasively argues that there is no such interest in this case. The government has simply not shown that these intrusive searches are justified as counterterrorism measures. While the government argues that these warrantless searches are necessary for reasons of efficiency, they simply haven’t made the case:

…the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency.

This point is a particularly important one. Tradeoffs between civil liberties and national security are too often treated as a zero-sum game, with robust civil-liberties protections assumed to reduce national security. Perversely, this framework means that constitutional violations become self-justifying: the violation becomes the evidence for its necessity. But the underlying assumption is inherently flawed, and metadata collection is a particularly strong example of this. Using scarce resources to compile and analyze metadata might reveal hidden terrorist activity, but it might also send investigators on wild goose chases that serve as diversions from threats that might have been identified with more targeted searches. We can’t simply assume that the searches are justified by compelling national security interests. Unless the government produces such evidence, the NSA’s metadata program is particularly hard to justify.

Clearly, this judge must be some sort of free-thinking anarchist. It will be interesting to see what happens if some or all of Obama’s D.C. Circuit appointments eventually weigh in.

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