The recent revelations regarding the collection of metadata by the National Security Agency (NSA) and the allegations by Edward Snowden concerning the PRISM program have brought the ongoing debate between individual liberty and national security to the forefront.
As various leaders of the U.S. intelligence community have testified before Congress in the past several weeks, we continue to learn additional facts about the NSA’s recent intelligence gathering actions. While news of warrantless collection of phone records by the NSA sparked concern from some, it appears that collection is limited to only what is known as metadata. Metadata is the phone number the call is from, the phone number the call is to, the date and time of call, and the duration of call. This metadata has been sent to the NSA daily for the past seven years (when USA Today reported news of the program). After the NSA receives the metadata it keeps a rolling record of it for five years and conducts analysis when required for the benefit of U.S. national security. The provision that allows for the NSA to collect metadata does not allow it to examine the content of the phone call, namely, the voice conversation that occurs between the parties on either end of the line.
So is the collection of metadata by the NSA unconstitutional? In 1979 the U.S. Supreme Court ruled in Smith v. Maryland that the collection of phone numbers dialed from a private phone line did not violate the fourth amendment. During Congressional testimony, FBI Director Robert Mueller implied that the precedent set by Smith v. Maryland allowed for the collection of metadata by the U.S. intelligence community. However the court order that required Verizon to release the metadata of their customers also required routing data which could reveal an individual’s geolocation. The U.S. Supreme Court recently ruled in United States v. Jones that the tracking of an individual’s movements through the placement of a GPS device in their vehicle constituted a search and thus violated the fourth amendment. If the routing data could be used to track an individual’s movements, that aspect of the data collection could prove to be unconstitutional.
Regardless, the recent developments involving the intelligence community’s monitoring of the American people has sparked an important discussion of how much privacy we should surrender for increased security. Some suggest there is a strategic balance to be found between the two, others suggest one should be prioritized over the other and thus maximized as much as possible. This debate will no doubt continue as more information on NSA’s PRISM program and the FBI’s use of drones on U.S. soil is revealed.