By: Anthony Gatto
Living in a technologically advanced society can be a double edged sword. On one hand, we have become accustomed to many luxuries, which are the direct result of technology’s rapid progression over the years. Don’t believe me? Leave your smart phone at home tomorrow and tell me how your day went. On the other hand, we almost always have to be cautious about identity theft, cyber security breaches, and hackers. Many “whacko” conspiracy theorist people think that the government is listening to every phone call we make. The truth is, those “whackos” may not be that far off as far as the government collecting data and listening in on phone calls.
In April, 2015, The Electronic Frontier Foundation (“EFF”) filed a complaint against the U.S. Drug Enforcement Administration, the Federal Bureau of Investigation, the U.S. Department of Justice, the U.S. Department of Homeland Security and their heads, the United States of America, and up to 100 John Does. The crux of EFF’s case, Human Rights Watch v. Drug Enforcement Administration et al., is the above listed agencies secretly collecting data on all telephone calls to as many as 116 countries, possibly going back to the 1990s. These calls were placed to countries which are known for being heavily involved in the drug trade. The complaint alleges that these agencies used a mass surveillance program to collect phone numbers involved in calls; the date, time and duration of the calls; and the method by which calls were billed between calls from the U.S. and the 116 countries. The lawsuit aims to ensure this surveillance program is terminated and cannot be restarted.
The agencies involved in the surveillance program obtained call records by subpoenaing U.S. telecommunications service providers under Title 21 of the U.S. Criminal Code without any particularized suspicion of wrongdoing. The program was not subject to any judicial oversight or authorization, the complaint alleges. The call metadata is then stored in one or more databases, searchable by DEA staff, as well as by officers and employees of the DHS and the FBI. This practice has some commentators concerned that the government is pushing the Fourth Amendment’s limit: “If we follow this line of logic, there’s absolutely nothing to stop the DEA, or any other government agency, from monitoring and collecting the data of every single individual,” said Yasha Heidari of Heidari Power Law Group.
The Fourth Amendment protects people, not places, and therefore to determine if EFF has a valid case under the Fourth Amendment we first have to determine if the surveillance is considered a “search” under the Fourth Amendment. Beginning with Katz v. United States, 389 U.S. 347 (1967), the framework for analyzing the Fourth Amendment was forever changed. Justice Harlan’s concurrence outlined the proper framework for determining if an action is a search as (1) the individual “has exhibited an actual (subjective) expectation of privacy”, and (2) society is prepared to recognize that this expectation is (objectively) reasonable, then there is a right of privacy in the given circumstance and the action is a search. There is no doubt that who we call or what we say in our phone conversations are things we assume are private. Also, society recognizes this as the privacy of the callers. Therefore, collecting our phone records and listening to our phone conversations are considered searches under the Fourth Amendment. However, to violate the Fourth Amendment, a warrantless “search” also has to be “unreasonable.”
This is where the government will make its first argument. Under the Totality of the Circumstances Test, a search without a warrant is “unreasonable” if the government interest it serves is outweighed by the unduly harmful intrusion of privacy. In other words, the government is going to make the argument that the benefits of collecting phone records and listening to calls as part of this drug trafficking prevention effort outweighs the intrusion on millions of Americans privacy rights. Although this sounds like a losing argument for the government, they still may argue in the alternative that it did not specifically target Americans. Therefore, its actions do not require constitutional scrutiny because the Constitution only protects U.S. citizens. It will be interesting to see how this case plays out and how far into judicial proceedings it actually goes. Stay tuned.
Bio: Anthony is a Staff Member of the Journal of High Technology Law. He is currently a 2L at Suffolk Law and holds a B.S. in Finance from Suffolk University.