I recently tweeted:
“Hey why do @NSACareers and @BarackObama seem to think it’s ok to break the law and access my communications? I find that strange.”
That’s a bold assertion, so I’m obliged to explain myself. The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Applicability to Modern Electronic Communication
Katz v. United States extended Fourth Amendment protection to all areas where a person has a “reasonable expectation of privacy.” The case specifically dealt with phone calls, but I feel that it also applies to Internet communication, like emails (and I think the EFF agrees with me). Think about it this way: When you email a friend, do you expect a stranger to be able to read it? While the emails I send to my wife are generally mundane, I absolutely expect that random people are not able to read them. I have a reasonable expectation of privacy.
Warrant Upon Probable Cause
The Fourth Amendment provides that the government may search my communications if they obtain a warrant, and that a warrant shall only be issued if there is probable cause to believe that I am committing a crime.
It doesn’t matter whether recent laws (FISA, PATRIOT Act, Protect America Act, 2008 FISA revisions, etc) or executive orders allow or don’t allow searching of my communications. If those laws violate my Fourth Amendment rights then they are unconstitutional.
So, has the US government been searching the electronic communications of US citizens for whom it does not have probable cause? It seems likely.
There have been a number of NSA programs that collect, store, and search massive amounts of untargeted electronic communication: XKeyscore (Wikipedia, The Guardian, leaked NSA presentation), Stellar Wind, Trailblazer, Room 641A. A Washington Post story published yesterday reveals a leaked audit that found 2,776 violations of surveillance rules.
This evidence comes from various whistleblowers over the years, the most prominent being Edward Snowden. It’s certainly not bulletproof evidence, but I’m inclined to believe that most of it is true.
Obama has said:
“This applies very narrowly … This is not a situation where we simply go into The Internet and start searching any way that we want.” [reference]
“There is no spying on Americans.” [reference]
“We don’t have a domestic spying program,” [reference]
These are lies, and I expect better from the man I voted for.
Related articles from people much smarter than I:
Are Internet Backbone Pen Registers Constitutional?
Debate: Metadata and the Fourth Amendment