Courts 4th Amendment Affirmative - HSS 2015

1AC
Contention One Youre being

watched
The expiration of Section 215 and the passage of the Freedom
Act created a false sense of security, but federal domestic
surveillance is still massive
Baumann, June 9, 2015
(Ted, editor of Sovereign Investors Offshore Confidential and Plan B Club,

specializing in asset protection and international migration issues, degrees from
University of Cape Town with postgraduate degrees in Economics and History,
published in a variety of international journals, including the Journal of Microfinance,
Small Enterprise Development, and Environment and Urbanization, as well as the
South African press, including the Cape Times, New Internationalist, Cape Argus,
and Mail and Guardian; Freedom Act: Washington Killed Privacy;
http://www.valuewalk.com/2015/06/freedom-act-privacy/ -- JRS)
Back in my activist days, an insightful colleague once pointed out that: The
most dangerous
moment of any movement for justice is when you seem to be succeeding .
His point was this: When your adversary is more powerful than you are, they are in a position to define what
For example, we were trying to get African

and Asian city authorities to grant land titles to households living in slums, so
they could invest in their homes without fear of eviction. Often, opportunistic
politicians would announce a minor policy tweak with great fanfare, as if they had
granted our wishes. Meanwhile, nothing really changed.
I found myself thinking of that last week during the hoopla surrounding
the passing of the USA Freedom Act, which is supposed to have ended the bulk
collection of our private telephone call data by the government's spy agencies.
Freedom Act: Plus a ChangeYour privacy is no safer from government
abuse today than it was last week, before Congress passed the USA Freedom
Act. As one civil liberties lawyer told me: No one should mistake this bill for
comprehensive reform. The bill leaves many of the government's most
intrusive surveillance powers untouched.
success means and will probably do so at your cost.
You can't let your guard down now, I'm afraid.

Under the National Security Agency's bulk metadata program, which the USA Freedom Act has
modified, the NSA collected information on all Americans' calls including phone numbers called as
well as dates, times and duration without a warrant. The NSA argued that the data was relevant to
a national security investigation under Section 215 of the USA Patriot Act because terrorists sometimes
used telephones. Because the NSA didn't know which calls were from terrorists, all phone calls were
considered relevant.
The USA Freedom Act requires government to obtain a warrant before accessing call data in the hands
of private companies. Custody of the metadata itself will transition from the NSA to the phone
companies. The government will still be able to access it via specific queries of a person, entity,
account, address or device. Most records will be stored for fewer than 18 months, not five years or
more.
But section 215 of the Patriot Act was only one of a number of overlapping
surveillance authorities. The USA Freedom Act will leave the government
with a range of powerful surveillance tools. These include:
Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FISA):
Unlike the NSA's metadata surveillance program, collection under FISA's Section
702 captures the content of communications. This could include emails,
instant messages, Facebook Inc messages, Web browsing history and
more. Section 702 has been used by the NSA to justify mass collection of
data directly from the physical infrastructure of communications
providers.
Executive Order 12333: Issued by President Reagan in 1981, it allows the
executive branch to spy on foreigners with no regulation by Congress.
Millions of innocent foreigners' communications are collected, including
any containing Americans' communications.
Pen Registers: These allow the government to collect dialing, routing, addressing
or signaling information, including telephone numbers dialed and Internet
metadata, such as IP addresses and email headers.
FISA's Business Records Provision: This allows the government to obtain
business records from transportation carriers and storage facilities. The government
routinely considers private communications to be business records.
An ECPA D Order: Under Section 2703(d) of the Electronic Communications
Privacy Act (ECPA), the government can get a court order for information from
communications providers about their customers, including the sorts of metadata
the government gets with Section 215. The government must provide specific and
articulable facts showing that there are reasonable grounds to believe that the
records or other information sought, are relevant and material to an ongoing
criminal investigation.
National Security Letters (NSLs): Similar to subpoenas, NSLs allow intelligence
agencies to collect records from telecommunications providers, financial
institutions, credit reporting bureaus, travel agencies and other entities. Nearly all
NSLs include gag orders, which prevent the target from telling anyone they have
been served with an NSL. The government can use NSLs to collect much the
same information as Section 215. NSLs have been routinely misused.
Administrative Subpoenas: Many federal agencies have the authority to issue
subpoenas for customer records in their normal course of business. These
authorities are extremely widespread, comprising 335 different statutes
by one count.
All of these authorities continue to exist as before. Perhaps worst of all,
however, an Obama administration official confirmed last Wednesday that the
government would ask the secretive Foreign Intelligence Surveillance Court to
certify that the NSA's Section 215 bulk records collection was part of an ongoing
investigation, and could therefore continue indefinitely until the investigation
into terrorism is someday over.
Freedom Act: The Law Isn't on Your Side
Besides almost certainly being unconstitutional, the government's abuse
of these surveillance powers since 2001 is both illegal and useless. A
federal appeals court ruled the NSA's bulk metadata program illegal last
month, saying most members of Congress never intended for the Patriot
Act to be interpreted that way. Moreover, a presidential panel concluded
that the information gleaned from the NSA's spying on Americans was
not essential to preventing [terrorist] attacks and could readily have been
obtained in a timely manner using conventional [court] orders.
The law wasn't on your side under the Patriot Act, and it isn't on your side
now. You need to continue to take steps to secure your own privacy and
sovereignty from these outrages and I will continue to help you to do so.
Federal domestic surveillance is running rampant

Green, April, 2015
(Jason Young Green, JD Candidate 2016, UNC Chapel Hill, Certified Information
Privacy Professional, Abcrailing Against Cyber Imperialism: Discussing The Issues
Surrounding The Pending Appeal Of United States V. Microsoft Corp.; North Carolina
Journal of Law & Technology, Online Edition; 16 N.C. J.L. & Tech. On. 172 JRS)
Privacy rights of the individual are constantly at war with effective law
enforcement principles. Alexander, as head of the NSA, was entrusted with the
duty to protect the United States from terrorist threats both at home and abroad.
The steps that he took to analyze and act on data that he collected that led to the
reduction of U.S. soldier deaths are noteworthy. n54 However, the government did
not fail in its mission to "collect it all" in its execution, but in its oversight. n55 Gen.
Alexander frequently points out that the NSA collection programs are subject to
oversight by Congress as well as the U.S. Foreign Intelligence Surveillance Court.
n56 However, the proceedings of these two bodies are secret. n57 This lack of
transparent oversight has given the NSA a wide berth in its operations, in
violation of the FIPPS that both EU and U.S. privacy frameworks are based on,
specifically the fundamentals of Notice and Consent. n58 By having secret FISA
court orders and ECPA warrants that are rarely, if ever, unsealed, citizens
targeted by NSA are never notified of the invasion of their privacy, and
thus have no control over it. n59 It is this lack of oversight that has allowed
the NSA collection mechanism to run rampant and is precisely what must be
addressed.
SQ laws allow federal domestic surveillance without any

consideration for 4th amendment protections
Blass 2015
(Megan; J.D. Candidate 2015, University of California, Hastings College of the Law;
The New Data Marketplace: Protecting Personal Data, Electronic Communications,
and Individual Privacy in the Age of Mass Surveillance Through a Return to a
Property-Based Approach to the Fourth Amendment; Hastings Constitutional Law
Quarterly; 42 Hastings Const. L.Q. 577 JRS)
Domestic and International Surveillance Regulations Do Not Protect the Public
Because They Require Less Stringent Standards than the Fourth Amendment The
National Security Agencys surveillance programs are typically subject to
either ECPA or FISA.25 Generally speaking, ECPA applies to domestic electronic
surveillance or investigation, while FISA applies when the government is gathering
intelligence on foreign targets.26 These statutes purport to place limitations on
government surveillance. However, these statutes actually operate to reduce
the burden the government must satisfy in order to engage in the type of
investigation for the purposes of criminal prosecution generally governed
by the Fourth Amendment.27 Both statutes allow the government to
conduct, what I argue should constitute, searches under the Fourth Amendment,
in the absence of Fourth Amendment requirements including probable

cause or the lower standard of reasonable suspicion and in the absence of
a warrant.28 Law enforcement should not be allowed to avoid the Fourth
Amendment through the use of FISA.29 While, in theory, these statutes
regulate government surveillance of electronic communications and personal data,
they provide little protection without compliance from agencies, such as the
National Security Agency.
Theres no solution in sight: the district court in Klayman ruled

that some NSA domestic surveillance violates the 4th
amendment, but it will be an uphill battle on appeal
Setty, 2015
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual
Life, Western New England University School of Law; Harlan Fiske Stone Scholar
from Columbia Law School and A.B. in History, concentration in comparative civil
rights, with honors from Stanford University; Stanford Journal of International Law;
Winter 2015; 51 Stan. J Int'l L. 69; Surveillance, Secrecy, and the Search for
Meaningful Accountability JRS)
Klayman offers some reason for optimism among civil libertarians: Not only did an
Article III court decide a post-9/11 abuse of power case on its merits, but that
decision held that the NSA surveillance at issue was likely in violation of
the Fourth Amendment. Whether appellate courts will follow the line of
reasoning in Klayman as opposed to that of Clapper II and Smith, however, remains
unclear. n99 It is also difficult to predict how the U.S. Supreme Court will
respond when confronted with this matter. On the one hand, individual members
of the Court have expressed skepticism as to the appropriateness of
judicial review in matters of national security-related surveillance. n100 On
the other, the Court as a whole has recently shown significant interest in
rethinking the parameters of government surveillance. In the 2012 case
United States v. Jones, the Court found that warrantless GPS tracking of an
individual's movements for an extended period of time contravened the parameters
set in Smith. n101 The two concurrences in Jones further suggested reworkings of
the Smith framework in light of changing technology and an increased need for
robust privacy protection given the government's ability to access telephonic data
with ease. n102 The opinion in Klayman focused on Jones to illustrate the
need to rethink the nature and scope of privacy given the vastly different
use of technology of today as compared to the 1970s, when Smith was
decided. n103 In mid-2014, the Supreme Court followed this rightsprotective line of reasoning when it decided Riley v. California, holding that
warrantless searches of the electronic contents of an arrestee's cell phone
were in [*88] violation of the Fourth Amendment protections against
unreasonable search and seizure. n104
These rights-protective perspectives - offered by justices with different
political and theoretical perspectives - may offer a preview of a significant
jurisprudential shift not only in hearing security-related cases on their merits, but
in finding for plaintiffs alleging privacy and civil liberties infringements. However,
the historically deferential attitude of courts toward matters of national
security, a stance that has only compounded in the post-9/11 context,
suggests that this may continue to be an uphill battle for civil libertarians.
n105
District courts are split

Setty, 2015
Article III courts have consistently been wary of wading into the debate over
surveillance, almost always dismissing cases in the post-9/11 context on
procedural or secrecy grounds, n84 despite n85 the net effect of precluding
even those individuals with concrete evidence that their privacy and civil
liberties had been infringed from having their grievances heard. n86
Although the Snowden disclosures have given more purchase to plaintiffs
challenging data collection and surveillance, some Article III courts continue to
find that plaintiffs have no grounds to stop the NSA's data and metadata
collection, retention, and analysis.
The case of Clapper v. Amnesty International, n87 decided in early 2013, prior to
the Snowden disclosures, exemplifies the traditional lack of relief available to
plaintiffs in Article III courts. In Clapper, plaintiffs, including attorneys,
non-profit humanitarian organizations, and journalists, alleged that their
ability to communicate with and advise overseas clients and sources was
severely compromised by the fact that their phone calls were likely being
surveilled by the NSA or other U.S. government agencies. The United States
Supreme Court dismissed plaintiffs' suit on standing grounds, holding that
plaintiffs "cannot manufacture standing merely by inflicting harm on
themselves based on their fears of hypothetical future harm that is not
certainly impending." n88
Immediately after Snowden's June 2013 disclosures that the telephony data of
all U.S. persons is being systematically collected and stored by the NSA, the ability
of plaintiffs to clear the procedural hurdle of standing improved, since the
"fears of hypothetical future harm" that allowed the Clapper majority to dismiss that
case were no longer hypothetical, but publicly known as fact. However, the
question of whether plaintiffs were granted any substantive relief is yet to be
determined, since district courts have come to differing conclusions on the
question of the metadata collection program's constitutionality.
[*86] In American Civil Liberties Union v. Clapper ("Clapper II"), filed days after the
initial Snowden disclosures, n89 the ACLU and other organizations claimed that the
NSA's metadata collection and retention program violated their First and Fourth
amendment rights by inhibiting their ability to speak freely with clients and by
unreasonably searching and seizing their communications. n90 Judge Pauley of
the Southern District of New York rejected these claims, holding that
although the metadata "if plumbed ... can reveal a rich profile of every individual,"
n91 under the long-standing precedent of Smith v. Maryland, n92 plaintiffs had no
reasonable expectation of privacy over their telephony metadata. Further,
Judge Pauley accepted the government's position that the metadata was necessary
in disrupting several terrorist threats, and that such counterterrorism work could not
have occurred without the vast trove of data available through the NSA Metadata
Program. n93
With similar facts and claims, n94 Judge Leon of the District Court of the
District of Columbia in Klayman v. Obama differed from the Clapper II court
and concluded that the constitutionality, statutory authority and efficacy of
the NSA's bulk metadata collection program is, at best, questionable. n95
Judge Leon used these distinctions of both scope and depth of surveillance to
establish that the NSA metadata program constituted a search for Fourth
Amendment purposes. n96 In a particularly remarkable analysis, Judge Leon
reasoned that the continuously expanding use of technology in the
everyday lives of most Americans justified a greater expectation of privacy
over information that is shared electronically, not an ever-shrinking realm
of protection over personal privacy. n97
Having established that a search occurred, Judge Leon considered the plaintiffs'
request for preliminary injunctive relief, finding that there was a [*87] significant
likelihood that the plaintiffs would succeed in demonstrating that the surveillance
and searches were unreasonable and, therefore, unconstitutional. To do so, he
touched upon the intrusive nature of the search and, differing significantly
from Judge Pauley in Clapper II, found that the government had not made a showing
that the NSA Metadata Program was necessary to the government's
counterterrorism efforts. n98
SCOTUS review is inevitable

Farivar 2015
(Cyrus, senior business editor at Ars Technica, has reported for The Economist,
Wired, The New York Times, Deutsche Welle English, the Canadian Broadcasting
Corporation, Public Radio International, National Public Radio, the Australian
Broadcasting Corporation, B.A. in Political Economy from the University of California,
Berkeley and M.S. from the Columbia University Graduate School of Journalism;
January 1, 2015; http://arstechnica.com/tech-policy/2015/01/if-the-supreme-courttackles-the-nsa-in-2015-itll-be-one-of-these-five-cases/ -- JRS)
Roughly a year and a half since the first Snowden disclosures, there's already been
a judicial order to shut down the National Security Agency's bulk metadata
collection program. The lawsuit filed by Larry Klayman, a veteran conservative
activist, would essentially put a stop to unchecked NSA surveillance. And at the
start of 2015, he remains the only plaintiff whose case has won when fighting for
privacy against the newly understood government monitoring. However, it's
currently a victory in name onlythe judicial order in Klayman was stayed pending
the governments appeal.
Klayman v. Obama is only one of a number of notable national security and
surveillance-related civil and criminal cases stemming fully or partially from
the Snowden documents. In 2014, a handful of these advanced far enough
through the legal system that 2015 is likely to be a big year for privacy policy.
One or more could even end up before the Supreme Court.
"I think it's impossible to tell which case will be the one that does it, but I
believe that, ultimately, the Supreme Court will have to step in and decide
the constitutionality of some of the NSA's practices," Mark Rumold, an

attorney with the Electronic Frontier Foundation, told Ars.
Rumold is one of the attorneys in First Unitarian Church, a case that is challenging
government surveillance much like Klayman. Along with that pair, headline
watchers should set alerts for cases such as American Civil Liberties Union (ACLU) v.
Clapper, United States v. Moalin, and United States v. Muhtorov. Not only are there
several other related cases that will likely be influenced by these decisions, but
those five cases represent the strongest and most direct legal challenges
to the current NSA surveillance state.
Contention Two The End Of

Freedom
Blanket collection of information is like a general warrant
gather now, look for criminality later
Barnett 2015
(Randy, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law
Center. Director, Georgetown Center for the Constitution; Security Vs. Freedom:
Contemporary Controversies: The Thirty-Third Annual Federalist Society National
Student Symposium On Law And Public Policy -- 2014: Why The NSA Data Seizures
Are Unconstitutional; Harvard Journal of Law & Public Policy; 38 Harv. J.L. & Pub.
Pol'y 3; Winter 2015 JRS)
It is also worth remembering that both the English Whigs and the American
Founding generation thought that the seizure of papers for later search
was an abuse distinct from, but equivalent to, the use of general search
warrants--which is why "papers" was included in the Fourth Amendment in
addition to "effects" or personal property. n15 As University of San Diego School of
Law Professor Donald Dripps has shown in a recent article, "at the heart of Whig
opposition to seizing papers was the belief that any search of papers, even for a
specific criminal item, was a general search. It followed that any warrant to sift
through documents is a general warrant, even if it is specific to the
location of the trove and the item to be seized." n16 The seizure of one's
papers for later perusal was thought to be closely akin to searching
through a person's mind to assess his thoughts. Seize first, then search
for evidence of criminality, was considered to be the epitome of an abuse
of power. n17 Putting such information permanently in the hands of government
for future use is an invitation to restrict the liberties of the people whenever such
restrictions become politically popular.
[*7] For example, gun rights advocates have long opposed firearms
registration because the brute fact that the government does not know
where the guns are makes it much more difficult to confiscate them in the
future. n18 Not only does this illustrate the practical danger to constitutional
liberties posed by the government simply possessing vast information about our
activities and associations for later search. The trove of phone and email metadata
to which the NSA now has access would make gun registration unnecessary as the
government would already possess enough information to identify most gun
owners. n19
This information grab reverses the fundamental premise of

government by the people and turns the people into
subjects of our rulers
Barnett 2015

[*3] Due to the unauthorized leaks of classified information, we have come to learn
that the National Security Agency (NSA), an executive branch arm of the U.S.
military, has established several data collection programs. In this article, I am not
going to get into the details of these programs. Instead, I will limit my focus to what
I consider to be the serious constitutional problem with any such program,
regardless of the details: the fact that the NSA is demanding that private
companies, with which virtually all Americans contract to provide their
voice communications, turn over the records of every phone call that is
made on their systems. n1 This metadata is then stored on NSA super computers
for later analysis. n2
In this article, I am not going to address the legality of this program under existing
statutes. Jim Harper of the Cato Institute and I have argued in an amicus brief that
the NSA data collection program is illegal because it is not authorized by Section
215 of the Foreign Intelligence and Surveillance Act as it was modified by the USA
PATRIOT Act. n3
Section 215 of the PATRIOT Act allows the Foreign Intelligence Surveillance Court
(FISC) to issue orders requiring the production of tangible things upon satisfactory
application by the FBI. The statutory language specifies that an application for a
Section 215 order must include "a statement of facts showing that there are
reasonable grounds to believe that the tangible things sought are relevant to an
authorized investigation . . . ." n4 Because we maintain that Section 215 orders
must be "relevant" to an already existing investigation, in our brief we contended
that orders for the seizure of bulk metadata on every American for future analysis to
uncover evidence of wrong doing are not authorized by the statute and are
therefore illegal. n5
So far, however, the two federal district court judges who have considered
challenges to the program in the Southern District of New York and in the District
of Columbia have both held that, because Congress has not waived its
sovereign immunity to allow the legality of Section 215 orders to be
challenged in federal court, federal courts lack jurisdiction to hear a
statutory challenge. n6 For this reason, this matter may need to be addressed by
Congress. But these same two judges also held that citizens have standing
to bring constitutional challenges to the collection of the telephone
companies' records of their phone calls. n7 So my focus here will be limited to
the constitutional issue raised by these blanket seizures of the private data on all
Americans.
Although the only surveillance program that has been challenged thus far
concerns phone records, n8 the principle offered to support this data
seizure applies as well to all other business records of our dealings,
including our credit card transactions. Indeed, in upholding the
constitutionality of the program, Judge William Pauley of the Southern District of
New York cited cases that held that "an individual has no constitutionally
protected expectation of privacy" in bank records, records given to an
accountant, subscriber information provided to an internet service

provider, and information from a home computer [*5] that is transmitted
over the Internet or by email. n9 Imagine the chilling effect on liberty if
everyone knew that the government is in possession of all this data about
their private transactions on its super computers. The relationship
between the citizens of the United States and their supposed agents or
servants in government would be fundamentally reversed, turning We the
People into mere subjects of our rulers.
So there is a lot more at stake here than just this particular bulk data
seizure program. With the challenge to the Affordable Care Act, we not only
wanted to stop Obamacare from being implemented--which sadly we failed to do-we also wanted to defeat the limitless constitutional arguments that were being
offered in its defense. In this effort, I am pleased to say we succeeded. n10 Now ,
we need to think very hard about whether these blanket data seizure
programs comport with the Fourth Amendment before, not after, the
government decides it needs to seize data about every facet of our
personal lives.
Unrestrained security apparatus threatens permanent loss of

American freedom
Glennon 2014
(Michael J.; Professor of International Law, Fletcher School of Law and Diplomacy,
Tufts University; Harvard National Security Journal; 5 Harv. Nat'l Sec. J. 1; National
Security and Double Government; Professor of International Law, Fletcher School of
Law and Diplomacy, Tufts JRS)
There is validity to this intuition and no dearth of examples of the frustration
confronted by Madisonians who are left to shrug their shoulders when presented
with complex policy options, the desirability of which cannot be assessed without
high levels of technical expertise. International trade issues, for example, turn
frequently upon esoteric econometric analysis beyond the grasp of all but a few
Madisonians. Climate change and global warming present questions that depend
ultimately upon the validity of one intricate computer model versus another. The
financial crisis of 2008 posed similar complexity when experts insisted to hastilygathered executive officials and legislators thatabsent massive and immediate
interventionthe nations and perhaps the worlds entire financial infrastructure
would face imminent collapse.516 In these and a growing number of similar
situations, the choice made by the Madisonians is increasingly hollow; the real
choices are made by technocrats who present options to Madisonians that the
Madisonians are in no position to assess. Why is national security any
different?
It is different for a reason that I described in 1981: the organizations in question
do not regulate truck widths or set train schedules. They have the capability of
radically and permanently altering the political and legal contours of our
society.517 An unrestrained security apparatus has throughout history
been one of the principal reasons that free governments have failed. The
Trumanite network holds within its power something far greater than the ability to
recommend higher import duties or more windmills or even gargantuan corporate
bailouts : it has the power to kill and arrest and jail , the power to see and
hear and read peoples every word and action, the power to instill fear
and suspicion, the power to quash investigations and quell speech, the
power to shape public debate or to curtail it, and the power to hide its
deeds and evade its weak-kneed overseers. It holds, in short, the power
of irreversibility. No democracy worthy of its name can permit that power
to escape the control of the people.
NSA surveillance creates a dangerous potential for tyranny

Brand, 2015
(Jeffrey S., Dean and Professor Emeritus and Chairman of the Center for Law and
Global Justice, University of San Francisco School of Law. Dean, University of San
Francisco School of Law, 1999-2013. A.B., University of California, Berkeley, 1966;
J.D., University of California, Berkeley, 1969; Eavesdropping on Our Founding
Fathers: How a Return to the Republic's Core Democratic Values Can Help Us
Resolve the Surveillance Crisis; Harvard National Security Journal; 6 Harv. Nat'l Sec.
J. 1 JRS)
Indeed, the ability to participate in and affect the political debate and process lies at
the heart of Lesson Five. Throughout the FISA debates, this fact was stated
dramatically over and over again, sometimes in dire tones by people with access to
Americas deepest held secrets such as Senator Frank Church, whose
committee reports in the wake of Watergate remain seminal sources to
this day. His analysis is stark, declaring that surveillance powers could: at
any time be turned around on the American people, and no American
would have any privacy left, such is the capability to monitor everything:
telephone conversations, telegrams, it doesnt matter. There would be no place
to hide . . . The NSA could impose total tyranny [and] we must see to it
this agency and all agencies that possess this technology operate within
the law and under proper supervision, so that we never cross that abyss.
That is the abyss from which there is no return.211
Senator Muskie put it more diplomatically at the very first hearing after the
Watergate break-in: In our democracy, the decision to invade the privacy of
an American citizen or of anyone living in America must be made with a
full regard for the constitutional rights which could thus be jeopardized.
Such a decision should not be made lightly or arbitrarily by the Executive
Branch . . . . It is governments first responsibility to safeguard the rights and
liberties of its citizens.212 Representative Drinan perhaps put it most cogently: It
should be remembered too that the liberty of the people is at least as
important as the marginal increment in intelligence information which we
acquire through the inherently indiscriminate method of electronic
surveillance. As the District Judge in the Pentagon Papers case cogently observed:
The security of the nation is not at the ramparts alone. Security also lies
in the value of our free institutions. 213
Urgent court action key to stop democracys extinction

Brand, 2015
J. 1 JRS)
Finally, in 2013, the FISA court received an additional layer of insulation from review
when the Supreme Court decided Clapper v. Amnesty International. n82 In Clapper,
the Court rejected an opportunity to rule on the constitutional merits of many of the
post-9/11 changes to FISA by holding that the plaintiffs lacked standing to bring the
action. In a 5-4 opinion authored by Justice Alito, the Court held that plaintiffs' fear
that they would be subject to surveillance in the future was "too speculative" to
establish standing. n83
Ultimately, new laws, amendments to FISA, secret rulings of the FISA court, and
Clapper are partially responsible for landing us where we are today--in a
surveillance environment in which it is possible for the government to
collect data on essentially every phone call made in the United States. In
fact, in light of all of these changes, it would be unfair to place all of the blame on
the drafters of the original FISA statute for the Act's inability to weather the 9/11
storm and the concurrent technology revolution. Nonetheless, the reality is that
even without the Patriot Act, the FAA, and Clapper, FISA was destined to implode
because of fundamental flaws in its structure. FISA may have been ambushed by
subsequent events but it is not blameless for its own demise. FISA may no longer be
recognizable relative to its initial incarnation, but the seeds of its destruction in its
original structure surely are and they shed light on the lessons that FISA teaches for
the future. It is to those flaws and those lessons that we now turn.
Time is of the essence. After the Supreme Court's decision in Clapper, one
commentator wrote: "Absent a radical sea change from the courts, or more
likely intervention from the Congress, the coffin is slamming shut on the ability
of private citizens and civil liberties groups to challenge government
counterterrorism policies." n84 That ominous prognosis punctuates the
urgency of learning from the past if we are to halt the march toward
democracy's extinction, a march led by the very institutions that the
Framers created to sustain it.
Insert privacy and tyranny impacts

(Insert democracy/war/modeling impact?)
Contention Three Executive

Domination
Security justifications edge out the judiciary and disrupt
checks and balances and the executive grabs more unilateral
control
Husain 2014
(Waris Husain, Esq., adjunct professor at Howard University School of Law, faculty
adviser for Goler Teal Butcher International Moot Court Team, currently pursuing his
S.J.D. at American University Washington College of Law, writing a comparative
dissertation focusing on the Supreme Courts of the United States, Pakistan and
India, LL.M. in international human rights and international business from
Washington College of Law, JD Howard University, BA in government from the
College of William and Mary; Surveillance And Law Enforcement: Tools In The Fight
Against Terror In A Comparative Study Of The United States And Pakistan; 21 ILSA J
Int'l & Comp L 25; ILSA Journal of International & Comparative Law, Fall 2014 JRS)
A. Conclusion The continued proliferation of terrorism and the growing
trend of governments overriding their citizens' protections for a fair trial
and privacy require new methods that both ensure a nation's safety and
uphold its humanitarian, constitutional, and international values. The
General Assembly of United Nations affirmed that,
[R]espect for human rights and the rule of law [is] the fundamental basis for the
fight against terrorism . . . . [Member States] reaffirm[ed] that the promotion and
protection of human rights for all and respect for the rule of law are essential to all
components of the Strategy, and recognized that effective counterterrorism
measures and the protection of human rights are not conflicting goals, but
complementary and mutually reinforcing. n212
[*57] Therefore, it is incumbent upon nations to deal with terrorism in a
similar manner as other long running domestic criminal problems. Nations
like the United States and Pakistan must try to strike the fine balance
between security and freedom. In the alternative, if one is to concede the
invocations of the emergency rule that legitimize wholesale abrogation of
fundamental civil rights under certain circumstances, three phenomena
will occur concurrently, as they have been in the United States and Pakistan
recently. The executive branch will expand categorizations of "national
security" to be able to exclusively, secretively, and unilaterally control
more parts of the government, thereby disturbing the system of checks
and balances. The judicial branch will continue to both compromise its
own power by deferring to the executive branch, and lose institutional
power through the passage of anti-judiciary and anti-terrorism legislation
like the PATRIOT Act. Lastly, if current trend concerning the suspension of
constitutional protections for terrorism continues, it will challenge the
jurisprudence developed for over 200 years concerning the right of
citizens to privacy, dignity, information, and a fair trial.
These phenomena have led to a breakdown of limitations for government officials

wishing to monitor their citizens. In the United States, the warrant requirement was
required for electronic surveillance but this prerequisite approval from a judge
vanished for certain citizens with the passage of laws like the PATRIOT Act and the
PAA. Additionally, anti-terrorism legislation has led to an increased scope of
monitoring by intelligence gathering institutions such as the CIA, even though the
Church Committee found that these institutions could not be entrusted with the
power to intrude on citizens' right to privacy. In Pakistan, while there have been
warrant requirements for physical searches, there was an absence of legislation
concerning modem electronic surveillance. The Fair Trial Act attempts to pull
surveillance from the shadows into the rule of law by requiring intelligence officials
and police to seek judicial approval before wiretapping of any suspect. However,
critics argue that the Act goes too far in granting intelligence agencies, known for
their political manipulation and brutal activities, the right to impede the right to
privacy for invalid reasons.
Critics of the criminal enforcement model argue that civilian courts are ineffective at
battling terrorism because they have standards of proof that cannot be met due to
the nature of terrorism. However, the illegal practices of intelligence agencies
in Pakistan and the United States are a primary cause for the inability of
courts to prosecute individuals. These suspects might in fact be terrorists,
but have been subject to illegal treatment by the government, requiring
most of the evidence collected against them to be set aside by the Court
in accordance with constitutional protections. Therefore, when considering
modem methods of electronic surveillance, one must [*58] keep in the
mind the end goal of prosecuting suspects with admissible and legally
obtained evidence.
Giving in to secrecy means unchecked executive power

Brand, 2015
J. 1 JRS)
Lesson Five is certainly related to Lesson One (Pay Attention to the Core Values of
the Republic). A government of the people, by the people, and for the
people is a core value distilled by Lincoln and known to every schoolchild in
America. As basic and obvious as it may seem, its relevance to questions about
next steps in the surveillance debate cannot be overstated. The simple
fact is that secrecy has bred distance between the government and the
governed in profound ways. Indeed, we have arrived at a point in our
history where government actions related to intelligence gathering are
only discernable if an individual commits a criminal actEdward Snowden
being the prime current example. While people disagree about his motives and how
he should be viewed and treated, few would argue with the fact that but for
Snowdens actions, the microscope under which we currently have placed
our surveillance policies would not exist. That fact should tell us
something: The government is acting in ways that do not respect Lincolns
words, which we drill into our children as a first lesson in civics.
The response to these assertions is that the threat is so extraordinary and
the pace of technology so breathtaking that there is nothing that can or
should be done to curb the governments expanding surveillance
practices. Yes, the argument goes, transparency in a democracy is important,
and yes, the people should participate in the decision-making that affects their lives
and rights, particularly the rights to expression and privacy, but those aspirations
must give way if we are to protect our democratic values. Absolute
secrecy and the pervasive gathering of information, aided by revolutionary
technologies that keep us safe, the argument concludes, are necessary
imperatives. In reality, to accept that argument is to end the argument.
Such reductionist logic can only result in the unbridled, unchecked
authority of the Executive Branch. It has the ring of the argument made
during the Vietnam War that we had to burn the village in order to save
it.198 It also assumes that the middle ground that FISA sought to achieve
in 1978, and which hopefully we continue to search for today, does not exist.
SQ surveillance chills congressional oversight of the executive

and an unchecked executive is the most dangerous of all
human conditions
Slobogin, March 2015
(Christopher, Milton Underwood Professor of Law, Vanderbilt University Law School,

has been cited in almost 3,000 law review articles and treatises and more than 100
judicial opinions, including three U.S. Supreme Court decisions, Fulbright Scholar,
J.D., LL.M. University of Virginia, A.B. Princeton University; Symposium Issue: The
Future of National Security Law: Standing and Covert Surveillance; Pepperdine Law
Review; 42 Pepp. L. Rev. 517 JRS)
Perhaps most significantly, surveillance can compromise the political process
even at the upper reaches of government. In March 2014, for instance,
Senator Dianne Feinstein, chair of the Senate Select Intelligence
Committee, complained about suspected (but unproven) CIA hacking into
her office computers.125 Under Clapper, she would not have standing to
bring a claim against the CIA. But in drafting emails and documents the
Senator and her staff undoubtedly now think twice about what they are
saying, especially about executive branch powers. This chilling effect is
the kind of concrete impact that should lead to standing under political
process theory. As Senator Feinstein stated in reaction to the incident, [T]he CIAs
search may well have violated the separation of powers principles
embodied in the U.S. Constitution, including the speech and debate
clause. It may have undermined the constitutional framework essential to
effective congressional oversight of intelligence activities or any other
government function.126
Along the same lines, commentators have speculated that members of
Congress have curbed their efforts to regulate surveillance because of
their fear of it.127 Some have even suggested that President Obama has
been similarly constrained.128 Glenn Greenwald summarized the impact of

secret panvasive surveillance as the ultimate imbalance, permitting the
most dangerous of all human conditions: the exercise of limitless power
with no transparency or accountability.129
In contrast, the types of suits that are typically stymied by standing requirements
do not seek to protect the pillars of democracy. Claims alleging environmental
damage or misuse of taxpayer funds raise important issues. But they are not aimed
at protecting the integrity of the political process. Challenges to covert surveillance
ultimately address the structure of government, not its products.130
Insert presidential powers bad impacts
Plan: the Supreme Court of the

United States should decide that
warrantless collection of metadata
from the electronic communications
[and/or the content of electronic
communications] of persons inside
the United States violates the Fourth
Amendment.
Contention Four the plan solves

Fourth Amendment should extend to metadata it is no
different than preventing the government from sifting through
the papers and personal effects protected inside your home
Rasley, June 2, 2015
(George, CHQ Editor; Can You "Compromise" On The Constitution?;
http://www.conservativehq.com/article/20390-can-you-compromise-constitution -JRS)
Former Virginia Attorney General Ken Cuccinelli and our colleague Mark Fitzgibbons
have published a new op-ed on the Fourth Amendment in the Washington Examiner
and it makes a point that has been all too overlooked in the debate over the future
of the Patriot Act and other Obama Fourth Amendment abuses.
"Americans do not and cannot trust government to be benevolent - nor
should they. This is part of the reason our Constitution was written as it
was in the first place. And this truth has been proven again and again in
modern times, by so many recent official misdeeds and falsehoods coming from
the mouthpieces of government - including prosecutorial misconduct that has had
grave consequences and serious criminal penalties for its victims."
What makes the Patriot Act debate stand out say Cuccinelli and Fitzgibbons is that
some people in positions of responsibility deny that there is even a Fourth
Amendment problem with arbitrarily collecting the metadata of all customer records
from telephone companies.
This mass collection is not merely an expansion of power beyond previous
Fourth Amendment interpretation they say, it also sets dangerous
precedent that all metadata is subject to government's taking without a
warrant signed by a judge after a showing of probable cause that the law may
have been violated.
"Metadata" is everywhere observe Fitzgibbons and Cuccinelli. It runs our websites
and social media pages and underlies the accounting and financial records of
businesses. Government is already banging on both of these doors, with the Federal
Communications Commission trying to seize control of the Internet and the
Consumer Financial Protection Agency claiming blank-check authority over business
records. A metadata "exception" to the Fourth Amendment could give
government unchecked power over business, free speech, freedom of
association, religious liberty and more.
Making matters worse, they say more than 300 federal statutes authorize
government agencies to issue "administrative subpoenas" unilaterally.
Bypassing neutral judges and probable cause, government agencies may
obtain private records of individuals and businesses, Fourth Amendment
be damned.
The Constitution's Bill of Rights was written in broad strokes in the context of the
era. The First Amendment freedom of the press, naturally extended to radio, then
television, neither of which existed when the Bill of Rights was adopted. The
Fourth Amendment's protections of "papers and effects," which are
private records and property, should naturally extend to metadata. The
government's authority to reach metadata of persons and merchants

should be read in this originalist context.
To preserve the Fourth Amendment, certain reforms would be useful in
clarifying it for the 21st Century, and correcting mistakes of judicial, executive and
legislative interpretation. First, there should be no presumption that private
records in the possession of private third parties may be taken by the
government without probable cause. Also, all warrants - and that includes
administrative subpoenas - should be issued only by neutral judges or
magistrates to preserve the separation of powers inherent in the Fourth
Amendment. Because warrants are issued in chambers, there is no danger in
matters of national security conclude Cuccinelli and Fitzgibbons.
This would seem to be the time for constitutionalists in Congress to strike and to
rein-in the abuses of the Fourth Amendment that have gradually built-up like
barnacles on our right to be secure in our persons, houses, papers, and
effects, against unreasonable searches and seizures, but Congress it seems is
headed in the wrong direction.
Now that Senator Rand Paul has almost singlehandedly stopped the reauthorization
of Section 215 of the Patriot Act and its metadata collection program the USA
Freedom Act is being touted as the appropriate "compromise" between
security and liberty.
The problem with the USA Freedom Act is that rather than perfect the
Fourth Amendment by clarifying its application to data, it would appear to
legalize some of the abuses to which constitutionalists object -- particularly
judge-less warrants.
Historical and textual analysis supports the plan

Milligan 2014
(Luke M.; law professor at Univ. of Louisville; The Forgotten Right to Be Secure;
Hastings Law Journal, Vol. 65:713, Apr 2014; http://ssrn.com/abstract=2302850
JRS)
This Article locates a solution to the problem of regulatory delay in the text of the
Constitution. 13 The Fourth Amendment has traditionally been interpreted by courts
to safeguard a mere right to not be subjected to unreasonable searches or
seizures.14 In other words, the Amendment is read to guarantee nothing beyond
the right to be spared an unreasonable search or seizure.15 In 2013, the Supreme
Court reaffirmed the conventional spared reading of the Fourth Amendment in
Clapper v. Amnesty International.16 In Clapper, all nine Justices agreed that
communications surveillance programs do not violate an individuals Fourth
Amendment rights before the government succeeds in intercepting or acquiring
that individuals communications.17 The Court made clear, once again, that the
Fourth Amendment is not violated by attempts or threats to conduct an
unreasonable search or seizure.18 Nor are an individuals Fourth Amendment rights
violated by the existence of a vast surveillance program that happens to spare the
individual claimant. 19
The Fourth Amendment can be read, however, to safeguard more than a
right to be spared an unreasonable search or seizure.20 The Amendment
provides for [t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.21
Unlike its textual counterparts (such as search, seizure, and unreasonable),
the to be secure phraseology remains largely forgotten: it is treated on
mere occasion by commentators;22 and it has been left undefined in the case
law.23 Historical and textual analyses of to be secure, however, suggest
the existence of a Fourth Amendment right to protection against
unreasonable searches and seizures, and perhaps a right to be free from
fear against such government action. Support for these interpretations
of to be secure rest in the dictionary definitions of secure,24 the
structure of the Fourth Amendment,25 and founding-era discourse
concerning searches and seizures, which regularly emphasized the harms
attributable to the potentiality of unreasonable searches and seizures.26
Plan key to accountable democracy

Barnett 2015

III. CONCLUSION Let me conclude by noting that, without the recent leaks, the
American public would have no idea of the existence of these programs, and it still
cannot be certain of their scope. n72 Every day seems to bring new revelations
about domestic surveillance by federal agencies. The secrecy of these
surveillance programs is inconsistent with a republican form of government
in which the citizens are the principals or masters, and those in government
their agents or servants. For the people to control their servants, they
must know what their servants are doing.
Moreover, until these two district courts found--over the government's
objections--that citizens had standing to challenge the constitutionality of the
bulk-data seizure programs, n73 their constitutionality had been assessed
solely in secret by the FISC that Congress established to scrutinize the issuance of
particular business record subpoenas and warrants. n74
The secrecy of these programs, and the proceedings by which their
constitutionality is being assessed, make it impossible to hold elected officials
and appointed bureaucrats accountable. Internal governmental checks,
and even secret congressional oversight, are no substitute for the
sovereign people being the ultimate judge of their servants' conduct in office.
But such judgment and control is impossible without the information that secret
programs conceal.
If these blanket seizures of privately-held data are upheld as constitutional,
it would constitute an unprecedented legal and constitutional sea change.
It is not a policy that should emerge from an advisory panel of judges to which the
people are not privy. The American people are no longer the subjects of King
George and his general warrants. Nor should we be subjected to these
modern-day general warrants by those who are supposed to be our
servants, not our masters.
Fourth amendment protection is the last chance

Blass 2015
The Relevant Statues Fail to Protect the Public When Agencies Exceed Their
Authority Under the Statutes In Jewel v. National Security Agency, a lawsuit filed by
the Electronic Frontier Foundation (EFF), a putative class of plaintiffs made up of
AT&T customers sought legal and equitable relief for violations of federal
constitutional rights, FISA, and ECPA.30 They alleged that the NSA, in cooperation
with AT&T, engaged in the collection of communications passing through AT&Ts
network at its Folsom Street Facility without satisfying the FISA and ECPA
requirements of reasonable suspicion that the target is a foreign power or agent and
reasonable suspicion that the information is relevant to a criminal investigation or to
an investigation to protect against international terrorism and spying.31 Many of the
EFFs allegations are supported by credible evidence and have been admitted, to
some extent, by the government.32 This lawsuit and other lawsuits filed over the
last five years demonstrate that, regardless of the constitutionality of FISA or ECPA,
FISA and ECPA provide little protection for the public when the government refuses
to adhere to them.33
ECPA and FISA are supposed to limit the collection and use of personal data and
electronic communications.34 The National Security Agencys mass surveillance
programs, conducted pursuant to ECPA and FISA, however, have swept up
massive amounts of data and content that would be ancillary to any
individual application for a wiretap. While this is a tremendous invasion of
privacy, the crux of the constitutional issue is that limits on the use of that
data and information have proven to be ineffective. So, not only is the NSA
abrogating its front end responsibilities and obligations under ECPA and FISA in
operation of its mass surveillance programs, the data and content are in turn being
improperly utilized in ordinary criminal prosecutions without any fallback protection
from the Fourth Amendment. Failure to comply with FISA and the ECPA is
what makes the Courts Fourth Amendment jurisprudence so critical. The
Fourth Amendment is the legal protection of last resort where Congresss
statutory protections have failed. It is the ultimate backstop.35
Judicial hard power solves

Setty, 2015
If the PCLOB is able to exert some degree of soft power in influencing national
security decision-making, then the judiciary represents hard power that could
be used to force the protection of civil liberties where it might not
otherwise occur. The FISC should be reformed to include a public advocate
lobbying on behalf of privacy concerns, making the process genuinely adversarial
and strengthening the FISC against charges that it merely rubber stamps
applications from the intelligence community. n190 Article III courts need to
follow the lead of Judge Leon in Klayman in conceptualizing privacy as broad
and defensible, even in a world where electronics-based communication is
dominant and relatively easy for the government to collect. If the judicial
defense of privacy were combined with the possibility of liability for
violations of that privacy, it is likely that this would incentivize increased
self-policing among the members of the intelligence community.
The executive and legislative branches cant solve they dont

have the capability and it would be a political reversal
Setty, 2015
In late March 2014, the Obama administration announced that it would propose
legislation to dismantle the bulk collection program, leaving metadata in the
exclusive possession of telecommunications companies and requiring FISC
authorization prior to the NSA accessing the metadata. n48 The type and scope of
legislative restrictions were debated extensively in 2014, but no bill was passed,
leaving open the question of whether any additional legislative control will be
exerted by Congress - if not, the status quo of executive control over the scope and
intrusiveness of the program will continue. n49 Section 215 of the Patriot Act,
arguably providing statutory authorization of the NSA Metadata Program, is set to
expire in July 2015, a deadline that is sure to prompt legislative debate on whether
to renew the program, curtail the authority granted to the administration, or
eliminate the program altogether. The effect of any legislation in curtailing intrusive
surveillance practices is yet to be seen, but the fact that the administration has
already shifted its public willingness to improving protections of privacy
and civil liberties and increase transparency when compatible with
intelligence gathering interests, is noteworthy as well. n50 Assessment of
whether those changes will be meaningful must wait for further developments,
particularly as it may be institutionally and politically difficult for the
president and Congress to shift course dramatically in the face of stillexisting terrorist threats and the political pressure created by the public
perception of those threats. n51
The primary message from the Obama administration since the Snowden
disclosures has been that the administration itself is best suited to address
whether and to what extent any recommended changes to NSA surveillance
were appropriate, n52 and that the Snowden disclosures themselves have been
unnecessary, [*80] illegal, and counterproductive to both the intelligence
gathering programs themselves and the public discourse. n53 However, there is no
indication that any of the accountability measures now being promoted by the
administration would have existed or gained significant purchase but for the
Snowden public disclosures. n54 The various institutional accountability
mechanisms that currently exist within the executive branch do not appear
to be equipped to consider concerns stemming from intelligence community

insiders who have a fuller understanding than the public of the scope and nature of
surveillance programs and who question the basic premise or
constitutionality of programs such as the NSA metadata collection. To the
contrary, there are indications that some within the NSA have actively
attempted to avoid oversight by the Department of Justice. n55 The Office of
the Inspector General for the NSA, appointed by and reporting to the director of
the NSA, n56 is suited to deal with allegations of statutory and policy
compliance violations, but not with a large scale systemic complaint about
privacy and accountability such as that of Snowden. n57 Other potential
avenues for accountability, such as the Office of the Inspector General for
the Defense Department, are rendered irrelevant by the lack of
information access. n58 In fact, the extreme secrecy that surrounded these
surveillance programs, even within the administration, suggests that many
existing executive branch mechanisms were, in the time before the Snowden
disclosures, not engaged in effective oversight.
Ext: Tyranny/Democracy
Unfettered surveillance crushes freedom and privacy
Brand, 2015
J. 1 JRS)
To stress the importance of the relationship of the government to the governed is not a novel concept. The debates during the 1970s
On June 23, 1975,

Senator Tunney opened the Joint Hearings of his Special Subcommittee on Science, Technology and
Commerce of the Senate Judiciary Committee with words that could have easily been uttered
in 2014: The need for [these] hearings is overwhelming. Technological developments are
arriving so rapidly and are changing the nature of our society so
fundamentally that we are in danger of losing the capacity to shape our
own destiny. This danger is particularly ominous when the new technology
is designed for surveillance purposes, for in this case the tight
relationship between technology and power is most obvious. Control over
the technology of surveillance conveys effective control over our privacy,
our freedom, and our dignityin short, control over the most meaningful
aspects of our lives as free human beings.199 Tunneys position was clear: Our concern
(is that) that powerful new technologies . . . will destroy the Constitutions
delicate balance between the powers of the State and the rights of
individuals.200
that led to FISA eloquently articulated its importance in the context of intelligence gathering.
Tunney demanded answers to the same questions that are relevant today: We want to know who, if anyone,
controls surveillance technology. And can we assure American taxpayers that their scarce dollars are being spent
for their benefit and not for the creation of an Orwellian nightmare that will haunt them and their children for
decades to come?201
Moreover, Tunneys frustration with the answers that had been forthcoming
echoed the frustration that many feel today: To date our investigations
have been discouraging. No one seems to be in charge. New technologies
are developed and seem to be allowed to speak without thought for their
future social and political ramifications or for the ease with which they can
be surreptitiously abused.
202
Senator Tunneys focus, as the name of his subcommittee implied, was on the impact of science and technology on
democratic institutions. The conversation about the relationship of the government to the governed, however,
extended well beyond those confines. It was also about the abuse of political power in the time of Watergate when,
in Senator Kennedys words, a blanket of fear had swept the country.203 Senator Tunney, in his opening remarks
quoted New York Times columnist James Reston, who had connected the dots between technology, power, and the
protection of our right, as citizens, to participate in our democracy. Reston observed that what has happened here
over the last postwar generation is that the scientific capacity to use the arts of wartime espionage on private
citizens has greatly expanded while the political capacity to control all this has actually declined.204
In sum, the ultimate threat lay in the inability of citizens to participate in

the decisions that affect their livesa threat understood by those who supported and opposed
S. 1566. Senator Kennedy, the bills chief proponent, who had split with Senator Tunney over the legislation, fully
understood that the ability of a citizen to participate in our democracy was at stake. In November 1977, when he
presented the Judiciary Committees report regarding S. 1566 to the full Senate, Kennedy spoke directly to his
concerns about the chilling effect of surveillance on the populace at large, noting:
The exercise of political freedom depends in large measure on citizens

understanding that they will be able to be publicly active and dissent from
official policy, within lawful limits, without having to sacrifice the
expectation of privacy that they rightfully hold. Arbitrary or uncontrolled
use of warrantless electronic surveillance can violate that understanding
and impair that public confidence so necessary to an uninhibited political
life.205 Neither Tunney nor Kennedy was tone deaf to the need for national security to protect the nation from foreign threats.
Tunney acknowledged the importance of technology for national security purposes, even lauding it: The arrival of the electronic
battlefield promises to increase our security against foreign aggressors and . . . can even become a technological aid in the pursuit
of peace. [Indeed] law enforcement experts tell us that computers and electronics will . . . reduce the threats posed by organized
crime and terrorists.206
Panvasive surveillance risks tyranny


VI. CONCLUSION If panvasive surveillance cannot be challenged in court, it
could well continue indefinitely despite its real threat to democratic
institutions. Despite all of the hullabaloo occasioned by Edward Snowden's disclosures, the NSA
appears to be continuing its large-scale surveillance and Congress has yet
to propose serious limitations on it. n162 Although President Obama has put a few
new restrictions on the NSA's programs, n163 to date there have been few
judicial assessments of their constitutional status, and Clapper stands as
an obstacle to challenges to all but the most obviously panvasive
government actions.
While the limitations on standing may make sense in some types of cases, challenges to panvasive
surveillance should be treated differently than most other generalized
claims. The separation of powers, Fourth Amendment, and First
Amendment concerns about this surveillance go to the core of American
democracy. The Court's decision in De Jonge v. Oregon, decided almost eight decades ago, makes the point in
language that still resonates in this post-9/11 era:
The greater the importance of safeguarding the community from

incitements to the overthrow of our institutions by force and violence, the
more imperative is the need to preserve inviolate the [*548]
constitutional rights of free speech, free press and free assembly in order
to maintain the opportunity for free political discussion, to the end that
government may be responsive to the will of the people and that changes,
if desired, may be obtained by peaceful means. Therein lies the security of
the Republic, the very foundation of constitutional government. n164
Unwarranted surveillance broadly stifles fundamental liberties and
undermines "the very foundation of constitutional government ." Government is
no longer functioning as the framers of the Constitution imagined it should if political discourse, individual
This state of affairs

threatens rather than sustains the notion of separate but equal
creativity, outspokenness and non-conformity are not allowed to flourish.
governmental powers, because it diminishes the vitality of the legislative

function, improperly enhances the executive function, and ignores the
judiciary's role as a regulator of law enforcement through determinations of cause.
Standing doctrine, meant to ensure each branch of government is allowed to do
its job, should not prevent courts from ensuring that the other branches actually do it.
Strong and independent judiciary key to SOP and freedom

Brand, 2015
J. 1 JRS)
The importance of an independent judiciary to maintaining effective
checks and balances necessary to sustain the Republic has often been
cited from the likes of Thomas Jefferson to Andrew Jackson to modern figures who occupy varying positions along the political spectrum. Thomas
Jefferson surely understood the need for an independent judiciary despite being the most vocal of the Founding Fathers about the dangers of judicial
overreach:
The dignity and stability of government in all its branches, the morals of
the people and every blessing of society depend so much upon an upright
and skillful administration of justice, that the judicial power ought to be
distinct from both the legislative and executive and independent upon
both, that so it may be a check upon both, as both should be checks upon
that.140
Consider Jackson: All the rights secured to the citizens under the
Constitution are worth nothing, and a mere bubble, except guaranteed to
them by an independent and virtuous Judiciary .141
A bevy of modern commentators on all points on the political spectrum echo similar
thoughts from the likes of Caroline Kennedy (The bedrock of our democracy is the rule
of law and that means we have to have an independent judiciary, judges
who can make decisions independent of the political winds that are
blowing142) to President George W. Bushs Solicitor General Ted Olson ([I]n this country we
accept the decisions of judges, even when we disagree on the merits,
because the process itself is vastly more important than any individual
decision. Our courts are essential to an orderly, lawful society [which]
would crumble if we did not respect the judicial process and the judges
who make it work.143) to conservative columnist Charles Krauthammer (Let us have a bit of sanity
here. One of the glories of American democracy is the independence of the
judiciary. The deference and reverence it enjoys are priceless assets and
judicial independence and supremacy are necessary checks on the tyranny
of popular majorities.144).
Taken together, the Federalist papers formula for the separation of powers demanded a
precarious balance that required vigilance to maintain. Hamilton and Madison put it
this way: A dependence on the people is, no doubt, the primary control on the government; but experience has
taught mankind the necessity of auxiliary precautions.145 The separation of powers detailed in the new
Constitution has proved to be effective and durable and the necessary auxiliary precautions that Hamilton and
Madison envisioned. FISA, however, would prove to be otherwise.
War powers justification threatens civil liberties indefinitely

Barnett 2015

II. WHAT ABOUT THE WAR POWER AND NATIONAL SECURITY?
Some who defend the NSA surveillance programs would say that these
programs should not be constrained by the Fourth and Fifth Amendments as domestic
law enforcement is because they are exercises of the President's inherent power as
Commander in Chief, or pursuant to the Congressional Authorization for Use of Military Force against the
terrorist organizations that attacked us on September 11th. As such, the FISA procedures impose greater constraints on surveillance than was
some defenders
have said that it may well have been a mistake to in-elude [*17] the judiciary within
these procedures rather than let the President take full political responsibility for the use
constitutionally required, even to the point of including judicial and Congressional oversight of such surveillance. Indeed,
and abuse of such measures. This objection is a formidable one, requiring serious analysis of the scope and limits of both the President's executive power
We can identify two

legal models of constitutional powers. Call these the "domestic model" that
empowers the government to protect the rights of its citizens from being
violated by other members of the community; and the "wartime model" that is
designed to protect the rights of American citizens from being violated by
foreign enemy powers. Constitutional protections against abuses of these powers vary. Consider that our military may kill enemy
and Congress's resolution authorizing the use of military force. But let me offer some preliminary thoughts.
combatants in the field without any "due process of law" and may indefinitely incarcerate prisoners of war for the duration of hostilities. Neither of these
measures can constitutionally be done to American citizens domestically in time of peace or war. Nor can they be done to foreign nationals in peacetime.
Those who would justify these programs under the war power are
abandoning the domestic model. Therefore, any reliance on Katz's
"reasonable expectation of privacy" doctrine, or Smith's "third-party
doctrine," are make-weights and merely confuse the issue. You cannot defend the
program using the "third-party" doctrine and then, when pressed on that
argument, change the subject to the war power. Any war power argument
must stand and fall on its own. Perhaps for this reason, in its recent brief in the ACLU's challenge to the NSA data
seizures, the government did not assert the war power and never denied that the Fourth Amendment applied to this situation. Although the
government does rely on a "national security" theory of why the program
is "reasonable" under the Fourth Amendment, even if it could be said to be
reasonable to seize the phone records of every American in the interest of
national security, this rationale cannot justify using the NSA data for
domestic law enforcement purposes--as we are learning may well have
occurred--or any other comparable data collection program that is used for domestic law enforcement purposes. That such
mission creep has already occurred, albeit in secret, underscores the
danger of allowing such bulk data seizures in the first place. [*18] That
defenders of this program will alternate between the domestic and war
models of constitutional power signals that the conflict in which we are
currently engaged does not fit neatly within either. The domestic model
assumes that government is using its police powers to protect the rights
of its citizens from others who are also members of the community. When
citizens are accused of violating the rights of others that define the social
compact, they deserve the benefit of the doubt before they are subjected
to punishment. And we must be very careful to protect the civil liberties of the people from those in law enforcement who would abuse
The war model assumes that government is using its

military power to protect the rights of its citizens from threats posed by
foreign powers, in particular the armies of foreign governments. Unlike persons who are accused of domestic crimes, the soldiers
of a foreign power are not entitled to the protections of the Fourth and
Fifth Amendments. But these war powers do not stretch into perpetuity and
this police power to protect the public safety.
are typically limited to a geographically confined theater of combat. Wars between nations have both a beginning and end, and extraordinary war powers
expire with the conflict that necessitated their use. If the "cold war" between the United States and the USSR muddied the distinction between the
domestic and war powers of the Congress and the President, what is sometimes called the "long war" against radical Islamic NGOs has threatened its
If the battle ground is considered to include the territory of the United States, the enemy
is hidden among the population, and such conflicts know no definitive end,
adherence to the war power model threatens to completely subsume the
protections of civil liberties afforded by the domestic model. In essence,
the means of war are then turned against the People themselves to
identify an enemy within. Even if some blending of the models is warranted and that is what the original FISA and Patriot Acts
collapse.
were attempting to accomplish, it makes it all the more essential that the government not exceed the limits defined by these statutes.
Construing Section 215 as broadly as the government now urges, and the FISA court has ruled in its secret opinions,
threatens the very balance between the wartime and domestic models
that Congress was presumably trying to strike. For this reason, the courts should avoid the constitutional
issues by [*19] holding that Section 215 of the PATRIOT Act does not authorize the bulk seizure of the telephone and email communications records of all
Americans.
AT SQ solves surveillance still

massive
The feds still collect tons of domestic communications without
a warrant
Vladeck, June 1, 2015
(Stephen, Professor of Law at American University Washington College of Law,
teaching and research focus on federal jurisdiction, constitutional law, and national
security law, nationally recognized expert on the role of the federal courts in the
war on terrorism, has been published in Harvard Law Review and the Yale Law
Journal, B.A. summa cum laude with Highest Distinction in History and Mathematics
from Amherst College, JD Yale Law School; Forget the Patriot Act Here Are the
Privacy Violations You Should Be Worried About;
http://foreignpolicy.com/2015/06/01/section-215-patriot-act-expires-surveillancecontinues-fisa-court-metadata/ -- JRS)
But whatever the merits of the competing sides in this debate, the larger problem is that this conversation has
from the perspective of

individual privacy rights, the phone records program is much less
problematic than the governments other authorities to conduct mass
surveillance under Executive Order 12333 and the 2008 FISA Amendments
Act. And so, in focusing on how to fix Section 215, weve given short
shrift to the far more significant problems raised by these other authorities and, just as
missed the forest for a very small and largely irrelevant tree. In fact,
importantly, the broader lessons we should be taking away from the surveillance reform conversation that Snowden
started.
To understand the significance of these other authorities, itll help to describe their aims: Executive Order 12333,
issued in 1981, is directed at the overseas interception of communications both metadata and content of noncitizens outside the United States, who, under a 1990 Supreme Court decision, categorically lack Fourth
Amendment rights. The 2008 FISA Amendments Act was enacted to close a loophole that new technology had
helped to create, where non-citizens outside the United States were nevertheless communicating through servers
or other telecommunications infrastructure located stateside, which the government could not surveil under the
executive order.
Ordinarily, the government needs a warrant before collecting the content

of domestic communications, one based upon a judges determination that theres good reason to
believe a particular individual either is engaged in the commission of a crime or is an agent of a foreign power.
But Executive Order 12333 and the 2008 FISA statute, by focusing on
individuals who fall outside the Fourth Amendment, capitalize on the lack
of constitutionally required individualized assessments and instead allow
the government to engage in bulk collection of such information as if it
were using an industrial vacuum cleaner to pick up individual particles of
dirt.
Its easy to see how these authorities could cause diplomatic headaches (as, for example, with the contretemps
most commentators
have assumed that, at least legally, the validity of these programs turns on their
overseas focus. After all, if the government is only targeting the communications of non-citizens outside the
surrounding U.S. surveillance of German Chancellor Angela Merkels cell phone). But
United States, what could possibly be the constitutional objection?
Although the government is

only allowed to target non-citizens outside the United States, it is inevitable,
given how it collects information under both of these regimes, that the communications of U.S.
The answer, we now know, has everything to do with technology.
citizens and non-citizens lawfully present in the United States will also be
collected, albeit incidentally, as the government puts it. After all, when thousands of
unrelated emails and other electronic communications are bundled
together in a packet that travels through an Internet switch thats
physically located in the United States (for the 2008 statute) or overseas (for Executive
Order 12333), its simply not possible for the government to only collect the
communications between non-U.S. citizens and leave the others
untouched, any more so than its possible for a vacuum to segregate
particles of dirt.
To be sure, the U.S. government doesnt dispute that it routinely collects the
communications of U.S. citizens. Instead, it has argued that any potential for abuse is mitigated by
so-called minimization requirements procedural rules that require the relevant intelligence agency to take
steps to avoid the improper retention and use of communications collected under these authorities.
More than 300 federal statutes authorize domestic surveillance

the NSA is unchecked even post-Freedom Act
Cuccinelli and Fitzgibbons, June 1, 2015
(Ken Cuccinelli is the former attorney general of Virginia. Mark Fitzgibbons is coauthor with Richard Viguerie of The Law That Governs Government: Reclaiming The
Constitution From Usurpers And Society's Biggest Lawbreaker; NSA and how the
Fourth Amendment stops government abuses;
http://www.washingtonexaminer.com/nsa-and-how-the-fourth-amendment-stopsgovernment-abuses/article/2565387 -- JRS)
The debate surrounding the sunset of section 215 of the Patriot Act is a historic moment for the Fourth Amendment,
which protects Americans from unreasonable searches and seizures of their persons, houses, papers and effects.
Americans do not and cannot trust government to be benevolent nor

should they. This is part of the reason our Constitution was written as it was in the first place. And this truth
has been proven again and again in modern times, by so many recent official misdeeds and falsehoods coming from
the mouthpieces of government including prosecutorial misconduct that has had grave consequences and
serious criminal penalties for its victims.
For example, when the Benghazi attack occurred, killing four American diplomats, the Obama administration lied
and blamed a maker of an anti-Muslim film. And it is bad enough to see the IRS claiming to have "lost" emails and
allowing hackers to steal private taxpayer information from its systems. But that seems tame compared to other
malicious, targeted abuses of power against individuals, businesses and property.
people in positions of responsibility

deny that there is even a Fourth Amendment problem with arbitrarily
collecting the metadata of all customer records from telephone
companies. This mass collection is not merely an expansion of power
beyond previous Fourth Amendment interpretation. It also sets dangerous
precedent that all metadata is subject to government's taking without a
warrant signed by a judge after a showing of probable cause that the law may have been violated.
"Metadata" is everywhere. It runs our websites and social media pages
and underlies the accounting and financial records of businesses.
Government is already banging on both of these doors, with the F ederal
Communications Commission trying to seize control of the Internet and the Consumer
Financial Protection Agency claiming blank-check authority over business records.
A metadata "exception" to the Fourth Amendment could give government
unchecked power over business, free speech, freedom of association,
religious liberty and more.
Making matters worse, more than 300 federal statutes authorize government
agencies to issue "administrative subpoenas" unilaterally. Bypassing
What makes the Patriot Act debate stand out is that some
neutral judges and probable cause, government agencies may obtain

private records of individuals and businesses, Fourth Amendment be
damned.
Those who know history know that government's power and lawlessness inevitably
expands unless stopped or reversed. Magna Carta, which turns 800 on June 15, the Declaration
of Independence and the United States Constitution are examples of documents that came about when people
rebelled against government lawlessness and reclaimed legal authority over government.
These documents are celebrated as monuments of freedom because they place

government under control of the rule of law. They demonstrate that government is
best when there is paramount law controlling its behavior when there is
a separation of powers, checks and balances and accountability to the
people.
Everyone understands the desire to keep America safe, but Americans are annoyed and troubled that some people
in positions of power refuse even to acknowledge the Fourth Amendment problem with the Patriot Act and the
collection of metadata.
Section 215 is a drop in the bucket SQ data collection still

pernicious and comprehensive

the U.S. government doesnt dispute that it routinely collects the
communications of U.S. citizens. Instead, it has argued that any potential for abuse is mitigated by
To be sure,
so-called minimization requirements procedural rules that require the relevant intelligence agency to take
steps to avoid the improper retention and use of communications collected under these authorities.
The governments defense, as weve come to learn, is flawed in two vital respects: First, as several since-disclosed
opinions from the FISA Court have made clear,
the governments minimization

requirements under the 2008 statute were often too skimpy, allowing the
retention and use of information that both the statute and the Fourth
Amendment prohibit. Second and perhaps more importantly even where the
minimization rules were legally sufficient, there have been numerous
instances in which government officials violated them, with the FISA Court
only discovering the abuses after they were voluntarily reported by Justice
Department lawyers. As a result, the government collected and retained a
large volume of communications by U.S. citizens that neither Congress nor
the Constitution allowed it to acquire.
More alarmingly, with regard to collection under Executive Order 12333, there isnt any
similar judicial review (or meaningful congressional oversight), which
means that it has entirely been up to the government to police itself. As State
Department whistleblower John Napier Tye explained last summer, there is every reason to doubt that such internal
accountability has provided a sufficient check. In his words, Executive Order 12333 contains nothing to prevent the
NSA from collecting and storing all communications provided that such collection occurs outside the United
States in the course of a lawful foreign intelligence investigation.
whereas the Section 215 debate has addressed whether

the government can collect our phone records, Executive Order 12333 and
the 2008 FISA Amendments Act allow the government to collect a lot of
what were actually saying, whether on the phone, in our emails, or even
to our search engines. There is no question that, from a privacy
perspective, these programs are far more pernicious than whats been pegged to
To put the matter bluntly,
Section 215.There is no question that, from a privacy perspective, these programs are far more pernicious than
such collection raises even

graver constitutional questions than the phone records program. Whereas
there is an open debate over our expectation of privacy in the metadata
we voluntarily provide to our phone companies, theres no doubt that we
have an expectation of privacy in the content of our private
communications.
Why, then, has all the fuss been around Section 215 and the phone records
program, while the far more troubling surveillance authorities provided by
Executive Order 12333 and the 2008 FISA Amendments Act have flown
under the radar?
whats been pegged to Section 215. There is also no question that
Freedom Act only addressed a paper cut uncontrolled data

collection is inevitable without the plan

But whatever the reason for our myopic focus on Section 215, it has not
only obscured the larger privacy concerns raised by these other
authorities, but also the deeper lessons we should have taken away from
Snowdens revelations. However much we might tolerate, or even embrace, the
need for secret government surveillance programs, it is all-but-inevitable
that those programs will be stretched to and beyond their legal
limits. Thats why its important not only to place substantive limits upon
the governments surveillance authorities, but also to ensure that they are
subject to meaningful external oversight and accountability as well . And thats
why the denouement of Section 215 debate has been so disappointing.
This should have been a conversation not just about the full range of government surveillance powers, including
Executive Order 12333 and the 2008 FISA Amendments Act, but also about the role of the FISA Court and of
congressional oversight in supervising those authorities. Instead, it devolved into an over-heated debate over an
Congress has tended to a paper cut, while it ignored the

internal bleeding. Not only does the expiration of Section 215 have no
effect on the substance of other surveillance authorities, it also has no
effect on their oversight and accountability.
Reaching some degree of closure with regard to the phone records
program may leave many with the impression that America has concluded
a meaningful and productive national debate over surveillance reform. We
over-emphasized program.
havent. And although the 2008 FISA Amendments Act is also set to expire on December 31, 2017 the
debate over Section 215 leaves little reason to believe that well have it then, either.
NSA info gathering is massive

Blass 2015
The National Security Agency is Collecting an Unprecedented Variety and Quantity of Personal Data, Virtual
The National Security Agency conducts so much

domestic surveillance that it would be easier to answer the question
what isnt the National Security Agency collecting than to detail every facet of
the Agencys intelligence gathering programs.8 Recently, its PRISM and XKeyscore programs
garnered notoriety. Through these programs, the National Security Agency has collected massive
amounts of personal data and information, including the contents of e-mails,
stored data, and internet traffic.9 Even without PRISM and XKeyscore, the
National Security Agency collects more than 250 million internet communications
each year.10 Moreover, even the Supreme Court has acknowledged the
tremendous capability of the government to conduct this surveillance. 11
Information, and Electronic Communications
NSA has panvasive access to all internet communication -violates the 1st and 4th amendments and SOP, but immune from
Court review
J.D., LL.M. University of Virginia
A.B. Princeton University; Symposium Issue: The Future of National Security Law:
Standing and Covert Surveillance; Pepperdine Law Review; 42 Pepp. L. Rev. 517
JRS)
Thanks to Edward Snowden,
the federal governmentup to and including President Obamahas

been forced to confirm that the National Security Agency is vacuuming up every phone
number we text and call, and is then subjecting this metadata to
queries to determine which numbers link with known or suspected
terrorists.9
Press reports suggest that the NSA is also engaging in numerous other types of
panvasive surveillance (that is, surveillance that cuts across wide swaths of the population with no
particularized reason to suspect any given subject of terrorist activity or other wrongdoing).10 F. Michael Maloof of
WND has asserted that [t]he National Security Agency already has access to all the content of intercepted emails
and phone calls, not just the metadata such as who contacted who[m], when and where.11 Glenn Greenwald, the
Guardian journalist who is Snowdens main conduit to the outside world, has described XKeyscore, [a] top secret
National Security Agency program that purportedly allows analysts to search with no prior authorization through
vast databases containing emails, online chats and the browsing histories of millions of individuals.12 Via a
program code-named Optic Nerve, the NSA and its British counterpart reportedly have been amassing webcam
images of millions of Yahoo users since at least 2008.13 A newly disclosed malware program known as Turbine
allegedly allows the NSA to hack into computers, computer networks, and phone networks.
One
calculation holds that the NSA touches roughly half of all Internet
communications and that, because 68% of those communications are spam, the agency may have
access to all meaningful communication on the Internet. 16
Most of this surveillance takes place without any type of judicial authorization,
17 or is authorized only by the Foreign Intelligence Surveillance Court (FISC), which operates i n
secret.18 Although regulation of these practices has recently ramped up, even today the decision
about what to collect and what to target and query is largely in the hands
of executive agency officials.19 Thus, good arguments can be made that
much, if not all, of this surveillance is unconstitutional under the Fourth
Amendment, the First Amendment, separation of powers doctrine, or
some combination thereof.20 But these arguments may never be fully
fleshed out in the courts because of the Supreme Courts standing
doctrine.
14 Today Turbine affects thousands of people but it is predicted to soon to reach millions.15
Just one AT&T facility gave NSA access to 10% of all US

internet communications
Blass 2015
The NSA has also been operating a program similar to PRISM involving upstream collection of communications on
In one particular instance, the NSA installed a special room at

AT&Ts Folsom Street Facility in San Francisco, where all communications passing through
the facility were split, or redirected through the special room, so that they could be
collected before reaching their destination.19 Upstream collection was not
limited to international communications or communications where one party to the
communication was located abroad.20 With this one facility, the NSA had access to 10%
of all domestic internet communications in the United States.21
AT&Ts network.18
Courts are deferring to the NSA

Setty, 2015
After the terrorist attacks of September 11, 2001, U.S. surveillance efforts were ramped up, in part due to the
perception that intelligence agencies failed to garner vital information that could have prevented the attacks. n5
There was significant disagreement as to whether the failure was due primarily to legal constraints n6 or primarily
to an inability to synthesize and analyze the available intelligence accurately and thoroughly. n7 The 9/11
Commission agreed with the latter view, concluding that the inability of intelligence agencies to learn about and
legal
and policy constraints on intelligence gathering were loosened
significantly in the wake of the September 11 attacks. As discussed below, the PATRIOT Act
prevent the attacks of September 11 was not attributable to a lack of legal authority. n8 Nonetheless, the
arguably authorized the collection and storage of domestic telephony and internet metadata n9 and the collection
and content searches [*73] of substantial amounts of foreign telephone and internet communications, n10 thereby
giving the intelligence community a much larger "haystack" of information from which to attempt to glean details of
emerging and ongoing terrorist threats. n11 This shift generated critiques from civil libertarians and lawmakers, n12
critics have been largely unable to secure significant and lasting

victories in curtailing surveillance powers, either through judicial action n13
or legislative initiative.
but
However, the tenor of the public debate became more contentious in June 2013, when then-National Security
Agency (NSA) contractor Edward Snowden began revealing classified documents detailing the scope of NSA
surveillance on foreign and U.S. persons in order to prompt public scrutiny and debate over the programs. Snowden
revealed, among many other things, that the NSA was engaged in the practice of collecting and retaining the
metadata of all U.S. telephone customers for five years (the "NSA Metadata Program"), and had been running
searches through that metadata when there was a "reasonable, articulable suspicion" that a particular telephone
number was associated with potential terrorist activity. n14
This program - with its broad scope, lack of particularized suspicion, and lengthy duration of data retention provides a useful vehicle through which to analyze the question of meaningful accountability over warrantless
government surveillance more generally. n15 Snowden's revelations over the year following the publication of his
initial disclosure continued to foster debate and demands for [*74] better oversight of the NSA. n16 The
administration initiated various review mechanisms, n17 Congress convened oversight hearings, n18 and the public
engaged in a vigorous debate as to the legality, efficacy, and morality of the NSA's activities, particularly the bulk
collection and retention for several years of telephony and internet metadata of U.S. persons.
the architecture constructed to

support arguments as to the domestic legality n20 and constitutionality of the
NSA Metadata Program is extensive. On a purely constitutional level, some
have asserted that inherent Article II power confers on the executive
branch expansive surveillance powers based on a view that the United
States continues to be on a post-9/11 war footing. n21 From a legislative
perspective, a significant number of statutes, such as the Authorization for the Use of Military
Force [*75] (AUMF), n22 provisions of the USA PATRIOT Act (PATRIOT Act), n23 the Protect
America Act and the FISA Amendments Act of 2008 (FAA) n24 were enacted by
Congress and interpreted by the NSA as providing ample legal authority for the capture and
This collection has been described at times as lawless, n19 yet
storage of data. n25 Compounding these statutory authorities, the executive branch has likely sought its own
nonpublic legal guidance in the form of secret legal opinions from the Office of Legal Counsel memoranda n26 and
other Department of Justice memoranda defending the legality and efficacy of the surveillance program. n27
The surveillance and data collection that are part of the NSA Metadata
Program have been largely validated by two forms of relatively weak
judicial review: Article III courts have, until recently, largely refused to
hear the merits of cases challenging the government surveillance, instead
finding that plaintiffs are unable to satisfy the standing requirement , n28 or
dismissing suits at the pleadings stage due to invocations of the state
secrets privilege by the government. n29 The Foreign Intelligence Surveillance Court
(FISC), tasked with determining the legality of many of the government's surveillance requests , has largely
acquiesced to the government's requests over the years. n30 Cases litigated after the Snowden
revelations of June 2013 suggest, however, that the judicial deference offered to the government in
many previous counterterrorism cases may be curtailed in light of public attention and
critique of the NSA Metadata Program, as well as a [*76] reinvigorated
judicial embrace of the privacy protections embodied in the Fourth
Amendment. n31
Surveillance is pervasive today and FISA doesnt check

Brand, 2015
J. 1 JRS)
The notion of the separation of powers assumes that each branch of government is accountable to the citizenry for
Where a proper balance of power among the branches exists,

accountability is achievable. Absent a proper balance, accountability is
unlikely. Senator Bayh had hoped that FISA would demonstrate that all three branches of Government can
its actions.
share responsibility for the most sensitive intelligence activities and show that our system of checks and balances
FISAs judicial structure

doomed the effort to failure, creating instead a lack of Executive Branch
accountability for its actionsthe polar opposite of what the Congress
sought in the months and years following Watergate .
Today the naivet of the chief proponents of FISA is painfully obvious. For
will continue to work as the framers of the Constitution intended.178 In fact,
example, responding to charges that the FISA courts secrecy would undermine its integrity and the ability to check
Executive Branch actions, Senator Kennedy responded in ways that future events would prove devastatingly
inaccurate:
There is no judicial secrecy today [at the time of FISAs consideration], because the courts are not part of the
process at all. It is the executive branch that exercises the secret and uncontrolled discretion, free from any
statutory restraint. And even if a lenient judge is quick to rubberstamp 99 out of 100 applications, the everpresent
possibility that this application will be the one rejected by the court should act as an effective deterrent for
abuses.179
Surveillance programs with names like

Stellar Wind, Terrorist Surveillance Program, and PRISM speak volumes
about the pervasiveness of surveillance in todays America. The FISA
courts inability to say no to requests from the Executive Branch is best
demonstrated by statistics detailing how frequently the court grants and
denies warrant applications. In the thirty-three years from 1979 to 2012, the FISA
court granted 33,942 requests for warrants and denied only eleven, compiling a denial rate
of three tenths of one percent of the total warrants requested.180 In the twenty-two years prior to
That hoped-for deterrent would not come to pass.
the September 11, 2001 attacks, the court approved 14,036 warrants and did not reject any. The eleven denials
came after 2002, but in the ten-year period from 2002 to 2012, the court granted 19,906 warrants, 6,804 more
warrants granted than in the twenty-one years preceding the attacks. As noted, former FISA court judge James
Robertson, now a critic of the court and a proponent for its reform, denied that the court acted as a rubber
stamp.181 The statistics, however, overwhelmingly suggest otherwise. Senator Kennedys hoped for a deterrent
proved to be a pipedream.
Ext: Scotus review

coming/circuit split/uniqueness
Constitutional challenges coming
Flumenbaum and Karp, June 24, 2015
(Martin Flumenbaum and Brad S. Karp are members of Paul, Weiss, Rifkind, Wharton
& Garrison. Philip S. May, a litigation associate at the firm, assisted in the
preparation of this column; Government Collection of Telephone Metadata Exceeds
Statute's Authority; New York Law Journal;
http://www.newyorklawjournal.com/id=1202730150541/Government-Collection-ofTelephone-Metadata-Exceeds-Statutes-Authority#ixzz3eTbTl25G JRS)
Plaintiffs also mounted constitutional challenges to the
program, arguing that even if the telephone metadata program was authorized by
statute, it violated the First and Fourth Amendments . Because the court found the program
exceeded its statutory authorization, the court did not analyze plaintiffs' First Amendment claims and
discussed the Fourth Amendment claims without reaching a conclusion .
In discussing the Fourth Amendment implications of the telephone metadata program, the court noted
the particularly complicated notions of privacy following the Supreme
Court's decision in U.S. v. Jones,21 in which five of the Supreme Court justices,
speaking through concurring opinions, suggested that a surveillance program that takes
into account large amounts of information generated in the digital age by
carrying out routine tasks might violate the Fourth Amendment. The court also
Constitutional Claims.
noted that, at the time the case was decided, Congress was debating the U.S. Freedom Act of 2015, which had just
passed the House Judiciary Committee, and could moot the issues presented by the telephone metadata program in
its current form.
Judge Sack's Concurrence. Sack issued a concurring opinion to "offer[ ] several additional observations about the
import of [the] decision."22 Sack observed that because the court's decision turned on the statutory authority for
the program rather than its constitutionality, Congress could overturn the decision by explicitly authorizing such a
program. Sack also discussed the challenges the FISC and all Article III courts face in closing their doors to
adjudicate issues of classified and sensitive materials. He discussed the importance of adversary proceedings in our
court system, even when the courtroom doors must be sealed to the general public, analogizing FISC hearings to
the Pentagon Papers case.23
debate rages over the

degree to which national security should subordinate individual liberties in
keeping the nation safe. The Second Circuit's ruling in American Civil Liberties Union v. Clapper,
as the first appellate court to issue a decision regarding Section 215, underscores the concerns
many have with large-scale surveillance programs and secret court
proceedings. Moreover, the program as authorized by the Freedom Act
may itself be subject to constitutional challenges as outlined here, and the courts may be
Conclusion While Congress has now passed the U.S. Freedom Act of 2015,
called upon once again to determine the legality of future surveillance programs.
Fourth amendment claims being pushed now

Harclerode, June 23, 2015
(Kelsey, J.D., UF Levin College of Law (Expected 2016), B.A., University of Florida,
Political Science and Women's Studies; How USA Freedom Impacts Ongoing NSA
Litigation; https://www.eff.org/deeplinks/2015/06/how-usa-freedom-impactsongoing-nsa-litigation -- JRS)
First Unitarian v. NSA solely targets the NSAs bulk collection of telephone records. In First Unitarian, EFF is
pursuing First Amendment, Fourth Amendment, and statutory challenges to this program, so the passage
of USA Freedom will have an impact on our claims. While the court denied EFFs most recent request for a hearing,
EFF will continue to pursue these claims to ensure that the court fully considers the issues raised by the NSAs
phone records program.
Jewel v. NSA is EFFs longest-standing case against the NSAs dragnet surveillance. Jewel challenges the NSAs bulk
USA
Freedom addresses the bulk collection of telephony metadata, but it
notably neglects the collection of Internet communications under Section
702 of the FISA Amendment Act. The court ruled for the government on
EFFs Fourth Amendment challenge to the collection of Internet content
(and EFF is appealing this decision in the Ninth Circuit), but the court has yet to rule
on the constitutionality or permissibility of the mass surveillance of telephone records. In addition to
pursuing our appeal in the Ninth Circuit, EFF will continue to push forward on our
other claims in the district court.
Expect similar issues to arise in other NSA spying cases that EFF has supported as an
amicus Klayman v. Obama and ACLU v. Clapper. Currently, Klayman is under review following
oral argument in the D.C. Circuit, which is considering the district courts ruling that the bulk
collection of telephony metadata, the collection of Internet metadata, and Internet content surveillance.
collection of telephone records is likely unconstitutional. Klayman recently filed a supplemental brief stressing the
importance of the appeal continuing despite USA Freedom given the NSAs pattern of illegal and unconstitutional
acts for an extended period of time. Meanwhile, the Second Circuits historic ruling in Clapper not only held the
bulk collection of telephone records exceeded congressional authorization, it also directly raised the possibility of
Congress addressing the NSAs reliance on Section 215 of the Patriot Act for its telephone records program.
Congress has since spoken with the passage of USA Freedom, so the extent of the Second Circuits deference to
Congress relating to the 180-day transition period will be a significant issue as it considers supplemental briefing
from the parties on whether the ACLUs claim is moot.
SCOTUS already changing 4th amendment analysis

Raysman and Brown, June 9, 2015
Richard Raysman is a partner at Holland & Knight and Peter Brown is the principal at
Peter Brown & Associates; How Has Digital Ubiquity Affected Fourth Amendment
Law?; New York Law Journal;
http://www.newyorklawjournal.com/id=1202728535476/How-Has-Digital-UbiquityAffected-Fourth-Amendment-Law#ixzz3eVZI52AM
http://www.newyorklawjournal.com/id=1202728535476/How-Has-Digital-UbiquityAffected-Fourth-Amendment-Law#ixzz3eVYB5zo9 JRS)
Pick up pretty much any 21st century smart phone, tablet or PC, and in minutes, a treasure trove of information
about its owner can be uncovered. Missives to a significant other, photos from summer vacation, browsing history
that spans years; all of this information, generally considered of the most intimate nature, is easily accessible with
unwanted
disclosure of such information can be highly damaging.
Perhaps in no situation can such disclosure be as injurious as when the
recipient of the information is a representative of law enforcement. Given the
even a rudimentary technical knowledge of the device's operating system. Needless to say,
protection from an unreasonable search and seizure enumerated in our constitution that give ballast to notions of
privacy and autonomy, questions have arisen from the Founding as to when a law enforcement search can square
That the
devices now function as virtual warehouses of information has
with these rights, particularly when it is effectuated without the imprimatur of a warrant.
aforementioned
exacerbated the tension between effective policing and privacy rights

deemed inseparable from the notion of ordered liberty .
The Supreme Court confronted this tension in its previous term, and came down decidedly in
favor of the privacy interests in Riley v. California, 134 S. Ct. 2473 (2014). Chief Justice
John Roberts, in writing for a unanimous court, held that because "cell
phones differ in both a quantitative and qualitative sense from other
objects" kept on an arrestee's person, greater privacy interests are
potentially impinged by the search of a cell phone. Accordingly, Fourth
Amendment analysis must be sculpted in a way so as to recognize that a
search incident to an arrest can now reveal exponentially more personal,
and often incriminating, information.
SCOTUS is starting to rule in favor of civil liberties

Kent, May 2015
(Andrew, Professor, Fordham Law School; Faculty Adviser to the Center on National
Security at Fordham Law; J.D., Yale Law School, A.B., Harvard College, formerly
Climenko Fellow at Harvard Law School, attorney in private practice, and federal
judicial clerk; Essay: Disappearing Legal Black Holes And Converging Domains:
Changing Individual Rights Protection In National Security And Foreign Affairs;
Columbia Law Review; 115 Colum. L. Rev. 1029 JRS)
B. Role and Self-Conception of the Supreme Court and Federal Judiciary
Certain institutional changes within the U.S. government, notably the rise to prominence and power of the Supreme
Today, the
Court's fairly aggressive vision of judicial supremacy, especially in the
area of individual rights, is clearly supportive of further convergence and
closing of legal black holes.
Court, seem conceptually and historically linked to convergence and closing of legal black holes.
In Marbury v. Madison, the Court sketched a very limited role for judicial review. First, the Court emphasized that its
duty and power to say what the law was could properly be exercised only in service of the court's duty to provide a
remedy for violations of an individual's private right. n206 Second, the Court broadly described categories of
"political" issues that could not be decided judicially but lay within the "constitutional or legal discretion" of another
branch. n207 And, famously, the Court exercised the power of judicial review in service of limiting the Court's power
in the particular case before it and ducking confrontation with the President and Congress.
But in a gradual process spanning centuries, the modern imperial Court emerged from these humble beginnings. Only two acts of
Congress were declared unconstitutional in the entire period prior to the Civil War (in Marbury and Dred Scott). n208 The pace
The
Court barely maintains any longer the fiction that it decides constitutional
issues only when it unavoidably must to protect an individual's private
rights. It is often very self-conscious and forthright about its modern role
of declaring constitutional doctrines and rules that will operate prospectively as binding rules of
law applicable [*1070] to all government actors facing circumstances within the scope of those rules or doctrines. n210 The
scope, density, and ambition of the modern Court's constitutional
jurisprudence are astounding. It is difficult to think of any important area of social, political, economic, or
quickened over the subsequent decades. As of 2002, a Government Printing Office publication had counted 157. n209
educational life that entirely evades its reach.
The Court is less and less willing to see any zones of U.S. government
activity as categorically immune to judicial review and oversigh t. n211 At the
Supreme Court level, if not yet in the lower federal courts, the scope of things considered nonjusticiable political
questions has shrunk. Out of quasi-departmentalist beginnings, the modern Court has decided that it "alone among
the three branches has been allocated the power to provide the full substantive meaning of all constitutional
The modern Court's supremacy is widely accepted.

"Governments at all levels . . . have essentially acceded to the Supreme
Court's demand in Cooper v. Aaron that the constitutional doctrines and rules announced by the Court
in its decisions be treated as equivalent to the Constitution itself ." n213
provisions." n212
For this enormously powerful and self-confident modern Court, it must

seem increasingly quaint to hear the government argue in national
security and foreign affairs cases that the judiciary lacks competence or authority to decide a given issue. n214
As has been widely recognized, the Court has also shifted the focus and intensity of its judicial review over time.
One salient change is the shift that became most obvious in the late 1930s and 1940s, and was noted by the Court
itself in, among other places, the famous footnote in the Carolene Products decision. n215 As the Court moved
toward a more deferential posture to legislative and executive action when reviewing law [*1071] in the economic
and regulatory spheres, it
has moved quite strongly to protect civil rights and civil
liberties.
Circuit split on cell phones will spark SCOTUS review

Daskal 2015
(Jennifer, Founding Editor of Just Security, prof at American University Washington College of Law, degrees from
Brown University, Harvard Law School, and Cambridge University (where she was a Marshall Scholar), formerly
fellow and adjunct professor at Georgetown Law Center, counsel to the Assistant Attorney General for National
Security at the Department of Justice 2009-11, served on the Department of Defense and Justice-led Detention
Policy Task Force, senior counterterrorism counsel at Human Rights Watch, staff attorney for the Public Defender
Service for the District of Columbia, and clerk for the Honorable Jed S. Rakoff, her articles on humanitarian law,
military commissions, and non-custodial detention have appeared in the University of Pennsylvania Law Review, the
Journal of International Criminal Law, and Cornell Law Review. She has published op-eds in The New York Times,
Washington Post, International Herald Tribune, LA Times, and Salon.com, and she has offered comment for the BBC,
C-Span, CNN, MSNBC, and NPR; Top 10 National Security Cases to Watch in 2015; January 1, 2015;
http://justsecurity.org/18762/top-10-national-security-cases-watch-2015/United States v. Graham JRS)
Among the many cases percolating through the courts involving the use of
cell site geo-location data, one case to definitely watch is that of United States v.
Graham. Argued before the Fourth Circuit in December, the case
challenges the governments warrantless collection of historical cell cite
location data for a whopping 221 days. At issue is whether or not the
suspect retains a reasonable expectation of privacy in the data even
though it had been transmitted to a third party doctrine the cell phone
provider.
The 11th Circuit addressed an analogous issue in United States v. Davis,
concluding that the government does need a warrant to collect historical
cell site data. (See Jennifer Granicks discussion of the case here.) And its an issue
thats been addressed by the Third Circuit as well. My prediction: A Circuit split,
if one develops, will spark Supreme Court review. (See Orin Kerrs discussion
of some related cases here.)
Several cases upcoming theyll be like dominoes

Farivar 2015
Klayman filed his federal lawsuit at the District of Columbia District Court on June 6, 2013, the day after the first
published disclosures from the Snowden leaks. That initial revelation showed that Verizon routinely handed over all
metadata on its customers to the NSA. So as a Verizon customer, Klayman argued that his constitutional rightsnot
to mention the rights of all other Verizon customerswere violated as the result of this data handover. The
government relied on the third-party doctrine in its defense.
Judge Richard Leon, a Republican appointee, agreed with Klaymans argument. As he wrote in a December
16, 2013 memorandum opinion: Indeed, the question in this case can more properly be
styled as follows: when do present-day circumstancesthe evolutions in
the Government's surveillance capabilities, citizens' phone habits, and the
relationship between the NSA and telecom companiesbecome so
thoroughly unlike those considered by the Supreme Court 34 years ago
that a precedent like Smith simply does not apply? The answer,
unfortunately for the government, is now.
In sum, the Smith pen register and the ongoing NSA Bulk Telephony
Metadata Program have so many significant distinctions between them
that I cannot possibly navigate these uncharted Fourth Amendment
waters using as my North Star a case that predates the rise of cell phones.
Unlike any of the other metadata-related cases thus far, Judge Leon ordered the government
to immediately halt the Bulk Telephony Metadata Program and to destroy
"any such metadata in its possession that was collected through the bulk
collection program." However, he noted, "in light of the significant
national security interests at stake in this case and the novelty of the
constitutional issues, I will stay my order pending appeal."
In early November 2014, Klayman arrived at that appeal. The case was heard again,
this time before the District of Columbia Circuit Court of Appeals. A ruling is
expected in the forthcoming months.
Klayman is likely the first domino. There are a few other current cases
making similar claims, and one is from June 2013 in fact. Like Klayman, Smith v. Obama
argues that the government is violating plaintiff Anna Smith's rights by routinely
collecting her metadata. Initially, a lower federal court in Idaho found that Smith "has no expectation of
privacy in the telephone numbers that she dials." The case was heard at the 9th Circuit Court of Appeals in Seattle
in December, and that appellate court is likely to rule sometime early in 2015.
Jones and Riley signal the Court is aware of the need for
change
Farivar 2015
the government's general
justification for the legality of bulk metadata collection: the third-party
doctrine.
Before outlining the relevant cases, it's important to note
This theory was codified most recently from a 1979 Supreme Court decision in Smith v. Maryland. In the case, the
court found that individuals do not have an inherent privacy right to data that has already been disclosed to a third
party. So with telecom data for instance, the government has posited that because a call from one person to
another forcibly transits Verizons network, those two parties have already shared that data with Verizon. Therefore,
the government argues, such data can't be private, and its OK to collect it.
legal experts say that recent surveillance and privacy Supreme Court
decisions could lead the courts to reconsider . The first Snowden revelation (published in
But
June 2013) was that Verizon (and presumably other telecom firms) are routinely handing over all call records to the
NSA. The metadata records include the date, times, and lengths of the calls.
In October 2013, the third-party doctrine was upheld. A Foreign Intelligence Surveillance Act Court (FISA Court)
judge ruled that there was no privacy interest in such metadata collected and analyzed by the NSA. In short, if it's
OK to collect third-party data on one person, it's OK to collect it on a bunch of people.
Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large
number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex
nihilo.
In sum, because the Application at issue here concerns only the production of call detail records or "telephony
metadata" belonging to a telephone company, and not the contents of communications, Smith v. Maryland compels
the conclusion that there is no Fourth Amendment impediment to the collection. Furthermore, for the reasons stated
inand discussed above, this Court finds that the volume of records being acquired does not alter this conclusion.
Indeed, there is no legal basis for this Court to find otherwise.
two recent Supreme Court cases: United States v. Jones (2012) and Riley v.
California (2014). Both were decided by rare unanimous opinions , and both indicate an
awareness that modern tech has changed reasonable privacy. Jones determined
But consider
that law enforcement does not have the authority to place a GPS tracker on a suspect without a warrant.
Meanwhile, the court found in Riley that law enforcement cannot search a persons phone incident to arrest without
a warrant.
"[These cases] are strong signs that the Supreme Court is aware that rules
that were created in a period of time when the court analyzed targeted
surveillance do not blindly apply where the government is collecting huge
quantities of information," Patrick Toomey, an attorney with the American Civil Liberties Union, told
Ars.
"As the quantity expand, a new constitutional analysis arises. We think

the same type of principle applies here. Smith v. Maryland is one suspects
data over three days as opposed to the information contained in
everyones call records contained for 10 years or more."
For his part, the EFF's Rumold agreed with this reasoning.
"Riley signals that the Supreme Court recognizes that technological

distinctions matter, and we can't blindly apply old precedent to new
technology," he added. "Jones, or at least the concurrences in Jones, signal that the
scope and duration of surveillance makes a difference for constitutional
purposes. Those twin principles put much of the NSA's domestic spying
programs on pretty unsound constitutional footing."
4th amendment status of cell phones unsettled

Hawn, June 15, 2015
(Jeff; BA International relations American University; Balancing security and privacy

in a mobile world; http://www.rcrwireless.com/20150615/devices/mobile-worldbalance-security-privacy -- JRS)
WASHINGTON Decades after they were invented and became a staple of everyday life, mobile phones
are finally finding a clear legal footing in U.S. courts.
Mobile technology has spurred a multiyear global debate touching on
issues such as privacy, freedom of speech, civil rights and international
relations. An American citizens right to privacy is guaranteed in the Bill of
Rights by the Fourth Amendment, and that privacy is extended to wired
telephones by Katz vs. The United States.
Mobile phones have proved to be an entirely different kettle of fish because of the
multimedia aspect, since they are not landlines and they do not just transmit point-to-point, real-time voice
messages.
Mobile phones transmit and retain a whole host of information, which can be directly relevant to criminal activity or
treating cellphones as wireless telephones has been

insufficient to answer nagging legal questions, especially in the post 9/11
terrorism. Simply
world and given the sweeping surveillance powers given to the U.S.
intelligence community under the Patriot Act.
Over the last few years, however, mobile phones have begun to carve out their own
legal niche separate from landlines.
In 2014, the U.S. Supreme Court ruled in Riley v. California that in order to
search a mobile phone confiscated in an arrest, law enforcement officials
must first obtain a warrant.
Chief Justice John Roberts noted in the majority opinion: Modern cell phones
are not just another technological convenience. With all they contain and
all they may reveal, they hold for many Americans the privacies of life.
The fact that technology now allows an individual to carry such
information in his hand does not make the information any less worthy of
the protection for which the founders fought.
Less than a year later, the Second Circuit Court of Appeals ruled in ACLU v. Clapper that section 215 of the Patriot
Act, which allowed for the collection of mobile phone metadata, was unconstitutional. The ruling was seen by many
as spurring Congress to pass the Freedom Act, which shifted the burden of bulk collection from the intelligence
community where the data therein could be accessed at will to the wireless service providers, who now have to
retain the data for an unspecified amount of time so it can be accessed by the government with a proper warrant.
Shifting the burden has left deep concerns and unanswered questions. Key among those is who is issuing the
warrants?
Currently, warrants for any kind of international communication are issued to federal agents by the Foreign
Intelligence Surveillance Court, a rotating panel of 11 judges whose identities are secret and who meet in
Washington, D.C.
The proceedings of these meetings are also secret. In response to what is perceived by many as a continued
invasion of privacy, several tech companies have started to look at encrypting phone data, which has caused the
government to begin to look at diluting such encryption so it is still accessible to law enforcement.
From a letter sent to the Obama administration by several technology leaders and civil rights groups: More than
undermining every Americans cybersecurity and the nations economic security, introducing new vulnerabilities to
weaken encrypted products in the U.S. would also undermine human rights and information security around the
globe. If American companies maintain the ability to unlock their customers data and devices on request,
governments other than the United States will demand the same access, and will also be emboldened to demand
the same capability from their native companies. The U.S. government, having made the same demands, will have
little room to object.
Despite a growing consensus that cellphones are a staple of modern

society and that the data contained on them are entitled to certain
specific protections, it will be years before the law answers all the
questions surrounding the issue, and in the meantime the pace of technology continues to
advance.
Protections will be an uphill battle in court

Farivar 2014
(Cyrus, has reported for The Economist, Wired, The New York Times, Deutsche Welle
English, the Canadian Broadcasting Corporation, Public Radio International, National
Public Radio, the Australian Broadcasting Corporation, B.A. in Political Economy from
the University of California, Berkeley and M.S. from the Columbia University
Graduate School of Journalism; Surveillance Watchdog Concludes Metadata
Program Is Illegal, Should End; Jan 23, 2014; http://arstechnica.com/techpolicy/2014/01/surveillance-watchdog-concludes-metadata-program-is-illegalshould-end/ -- JRS)
Legal experts are divided as to whether Judge Leons appellate
counterparts, who are all also Republican appointees, will be willing to
challenge the governments view.
"The three judges who will be hearing the Klayman appeal on the DC Circuit skew conservative,"
Ruthann Robson, a constitutional law professor at the City University of New York, told Ars. "Interestingly, Judge
Sentelle and Judge Brown, who are both on Klayman's panel, were also on the panel that voted in favor of the
constitutionality of the Military Commissions Act, which was later declared unconstitutional by the United States
Supreme Court in Boumediene v. Bush. But one judge, Judge David Sentelle, who is known as a national security
expert, joined the DC Circuit's opinion, another judge, Judge Janice Rogers Brown, a conservative with a decided
libertarian bent, dissented. The third judge on Klayman's panel is the 78-year-old Stephen Williams, appointed by
Ronald Reagan."
Brian Owsley, himself a former federal district judge in Texas and now a
law professor at Indiana Tech, told Ars that he didnt think that partisan
politics was a good predictor of outcomes. "There are people on both the
right and the left who are finding common ground in voicing a myriad of
privacy concerns."
However, Radack, Snowdens lawyer, thinks Klayman will face an uphill
battle.
"Judges Brown and Sentelle are the more conservative justices on the panel and are very
likely to defer to agency authority in this case as they have in the past
(Sentelle wrote an opinion in 2010 arguing that the right of habeas corpus does not extend to those detained at
Williams is the least conservative and more sophisticated

is also likely to defer to the NSA."
Radack added that the two recent unanimous Supreme Court decisions in
favor of privacythe Riley case and the 2012 case, United States v. Jones, which found that police
cannot warrantlessly install a GPS tracker on a car" bolster Judge Leons argument that the
1979 Smith v. Maryland case should no longer be controlling precedent on
questions about the legality of government surveillance ."
Bagram airbase)," she said by e-mail. "Though Judge
on these issues, he
Federal courts are split on metadata will go to Supreme Court

Cohn 2014
(Marjorie; law prof at Thomas Jefferson, past president of the National Lawyers
Guild, and deputy secretary general of the International Association of Democratic
Lawyers, author of Drones and Targeted Killing; Metadata Collection: Fourth
Amendment Violation; JURIST - Forum, Jan. 15, 2014;
http://jurist.org/forum/2014/01/marjorie-cohn-nsa-metadata.php -- JRS)
The government has admitted it collects metadata for all of our telephone communications, but says
the data collected does not include the content of the calls.
In response to lawsuits challenging the constitutionality of the program, two federal judges
issued dueling opinions about whether it violates the Fourth Amendment's

prohibition on unreasonable searches and seizures.
Judge Richard J. Leon, of the US District Court for the District of Columbia, held that the metadata program probably
constitutes an unconstitutional search and seizure. Judge William H. Pauley III, of the US District Court for the
Southern District of New York, determined that it does not violate the Fourth Amendment.
Leon's opinion Leon wrote, "Because the Government can use daily metadata collection to engage in 'repetitive
surreptitious surveillance of a citizen's private goings on,' the 'program implicates the Fourth Amendment each time
The issue is "whether plaintiffs have a reasonable

expectation of privacy that is violated when the Government
indiscriminately collects their telephony metadata along with the
metadata of hundreds of millions of other citizens without any
particularized suspicion of wrongdoing, retains all of that metadata for
five years, and then queries, analyzes, and investigates that data without
prior judicial approval of the investigative targets. If they doand a
Fourth Amendment search has thus occurredthen the next step of the
analysis will be to determine whether such a search is 'reasonable.'" The
first determination is whether a Fourth Amendment "search" has occurred.
If so, the second question is whether that search was "reasonable."
a government official monitors it.'"
The judicial analyses of both Leon and Pauley turn on their differing
interpretations of the 1979 U.S. Supreme Court decision, Smith v. Maryland. In Smith, a
robbery victim reported she had received threatening and obscene phone
calls from someone who claimed to be the robber. Without obtaining a
warrant, the police installed a pen register, which revealed a telephone in
the defendant's home had been used to call the victim. The Supreme Court
held that a person has no reasonable expectation of privacy in the
numbers dialed from his telephone because he voluntarily transmits them
to his phone company.
Leon distinguished Smith from the NSA program, saying that whether a pen register constitutes a "search" is "a far
cry from the issue in [the NSA] case." Leon wrote, "When do present-day circumstancesthe evolution of the
Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom
companiesbecome so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a
precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now."
Then Leon cited the 2012 Supreme Court case of United States v. Jones, in which five justices found that law
enforcement's use of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable
expectation of privacy. "Significantly," Leon wrote, "the justices did so without questioning the validity of the Court's
1983 decision in United States v. Knotts, that the use of a tracking beeper does not constitute a search because '[a]
person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.'" Leon contrasted the short-range, short-term tracking device used in Knotts
with the constant month-long surveillance achieved with the GPS device attached to Jones's car.
Unlike the "highly-limited data collection" in Smith, Leon noted, "[t]he NSA
telephony metadata program, on the other hand, involves the creation
and maintenance of a historical database containing five years' worth of
data. And I might add, there is the very real prospect that the program
will go on for as long as America is combating terrorism, which
realistically could be forever!" He called the NSA program "effectively a
joint intelligence-gathering operation [between telecom companies and]
the Government."
"[T]he almost-Orwellian technology that enables the Government to store
and analyze the phone metadata of every telephone user in the United
States is unlike anything that could have been conceived in 1979," Leon
exclaimed, calling it "the stuff of science fiction." He cited Justice Scalia's opinion in Kyllo v. United States, which
held the use of a thermal imaging device, that measures heat waste emanating from a house, constitutes a
"search." Justice Scalia was concerned about increasing invasions of privacy occasioned by developing technology.
Leon wrote, "I
cannot imagine a more 'indiscriminate' and 'arbitrary invasion'

than this systematic and high-tech collection and retention of personal
data on virtually every single citizen for purposes of querying and
analyzing it without prior judicial approval."
Quoting Justice Sotomayor's concurrence in Jones, Leon noted the breadth of information our cell phone records
reveal, including "familial, political, professional, religious, and sexual associations."
Having determined that people have a subjective expectation of privacy in their historical record of telephony
metadata, Leon turned to whether that subjective expectation is one that society considers "reasonable." A
"search" must ordinarily be based on individualized suspicion of wrongdoing in order to be "reasonable." One
exception is when there are "special needs," beyond the need for ordinary law enforcement (such as the need to
protect children from drugs).
"To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily
searches of virtually every American citizen without any particularized suspicion," Leon wrote. "In effect," he
continued, "the Government urges me to be the first non-FISC judge to sanction such a dragnet."
Leon stated that fifteen different FISC judges have issued 35 orders
authorizing the metadata collection program. But, Leon wrote, FISC Judge
Reggie Walton determined the NSA has engaged in "systematic
noncompliance" and repeatedly made misrepresentations and inaccurate
statements about the program to the FISC judges. And Presiding FISC
Judge John Bates noted "a substantial misrepresentation [by the
government] regarding the scope of a major collection program."
Significantly, Leon noted that "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."
Pauley's analysis of the Fourth Amendment issue was brief. He explained that prior to the September 11th terrorist
attacks, the NSA intercepted seven calls made by hijacker Khalid al-Mihdhar to an al-Qaeda safe house in Yemen.
But the overseas signal intelligence capabilities the NSA used could not capture al-Mihdhar's telephone number
identifier; thus, the NSA mistakenly concluded that al-Mihdhar was not in the United States. Pauley wrote:
"Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the
Federal Bureau of Investigation (FBI) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the
United States."
"If plumbed," Pauley noted, the telephony metadata program "can reveal a rich profile of every individual as well as
a comprehensive record of people's association with one another." He noted, "the Government acknowledged that
since May 2006, it has collected [telephony metadata] for substantially every telephone call in the United States,
including calls between the United States and a foreign country and calls entirely within the United States."
But, unlike Leon, Pauley found Smith v. Maryland controls the NSA case. He quoted Smith: "Telephone users ...
typically know that they must convey numerical information to the telephone company; that the telephone
company has facilities for recording this information; and that the telephone company does in fact record this
information for a variety of legitimate business purposes." Thus, Pauley wrote, when a person voluntarily gives
information to a third party, "he forfeits his right to privacy in the information."
While Leon's distinction between Smith and the NSA program turned on the breadth of information collected by the
NSA, Pauley opined, "The collection of breathtaking amounts of information unprotected by the Fourth Amendment
does not transform that sweep into a Fourth Amendment search." And whereas Leon's detailed analysis
demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley
failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones court did not overrule
Smith.
Leon's decision is the better-reasoned opinion.
Looking ahead
This issue is headed to the Court of Appeals. From there, it will likely go
the Supreme Court. The high court checked and balanced President George
W. Bush when he overstepped his legal authority by establishing military
commissions that violated due process, and attempted to deny
constitutional habeas corpus to Guantanamo detainees. It remains to be
seen whether the court will likewise refuse to cower before President
Barack Obama's claim of unfettered executive authority to conduct
dragnet surveillance. If the court allows the NSA to continue its metadata
collection, we will reside in what can only be characterized as a police
state.
Klayman outcome will be high profile

Farivar 2014
(Cyrus, has reported for The Economist, Wired, The New York Times, Deutsche Welle
English, the Canadian Broadcasting Corporation, Public Radio International, National
Public Radio, the Australian Broadcasting Corporation, B.A. in Political Economy from
the University of California, Berkeley and M.S. from the Columbia University
Graduate School of Journalism; A top appeals court to hear why NSA metadata
spying should stay or go; Nov 4, 2014; http://arstechnica.com/techpolicy/2014/11/top-appeals-court-to-hear-why-nsa-metadata-spying-should-stay-orgo/ -- JRS)
Civil libertarians and privacy activists are closely watching the case to see
if the appellate court upholds the landmark lower court order. Since Klayman
originally filed his lawsuit, there have been a few notable policy and legal decisions that could
push the appeals court in his favor.
Specifically, the Supreme Court has taken a stronger view of digital privacy
than it has in the past. Earlier this year, in a unanimous decision in the Riley
v. California case, the nine justices found that law enforcement must get a warrant
before they search someones cellphone.
On the policy side, both the Congressionally mandated Privacy and Civil
Liberties Oversight Board (PCLOB) and the presidents Review Group on
Intelligence and Communications Technologies (RGICT) recommended that
the metadata collection program should end as they currently exist.
PCLOB, in particular, concluded in January 2014 that the governments metadata collection program "lacks a viable
legal foundation under Section 215 [of the Patriot Act], implicates constitutional concerns under the First and Fourth
Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited
value As a result, the board recommends that the government end the program."
The RGICT recommended that the NSA not be allowed to hold all that metadata in-house. Either way, both
conclusions are simply advisorythey are not binding law by any means. The metadata program still functions in
essentially the same way that it did before the American public heard of Edward Snowden.
"Over
the last year, the governments privacy boards have taken the view
that this unusually intrusive program is unnecessary," Patrick Toomey, an attorney
with the American Civil Liberties Union (ACLU), told Ars. "Im hopeful that [the appellate court] will find that this is
Judge Leon was persuaded that bulk surveillance is a way of

collecting information that raised a significant violation of a reasonable
expectation of privacy and the Constitution." Will conservative judges be
swayed?
unconstitutional.
Lower courts are divided

Greenhouse 2014
(Linda, Pulitzer Prize winner, Senior Research Scholar in Law, the Knight
Distinguished Journalist in Residence, and Joseph Goldstein Lecturer in Law at Yale
Law School, NYT writer on the Supreme Court and the law since 1978, BA Radcliffe
(Harvard) and Masters from Yale Law; Weve Got Your Number; Jan. 22, 2014;
http://www.nytimes.com/2014/01/23/opinion/greenhouse-weve-got-yournumber.html?_r=0 JRS)
This case, Smith v. Maryland, was no big deal in its day . (And the defendant in the gardenvariety case that led to the decision was no criminal mastermind -- he was making harassing calls from his home
phone.) The majority opinion was only 11 pages long. There were three dissenting votes, but the dissenting
opinions lacked passion. After Justice Blackmun circulated his final draft in June 1979, Chief Justice Warren E. Burger
responded by agreeing that the urge for privacy does not rise to the level of a constitutionally protected right. The
chief justice added that Congress could require a warrant but the Constitution does not.
He ended his note with a lighthearted P.S.: Im going to use a public phone for my calls to my bookie.
Thirty-five years later, telephones and their users privacy concerns are obviously no
joking matter. They are the question of the hour. Constitutional challenges to the National Security Agencys bulk
telephone data collection produced opposing Federal District Court rulings last month, and the issue
appears
destined for the Supreme Court.
Meanwhile, the justices last week accepted two cases with less obvious national security implications
but much greater relevance to many Americans: whether the police need a warrant in order to search
the contents of a cellphone of a person they have just arrested. These cases, United States v. Wurie
and Riley v. California, will probably be argued in April and decided in June.
All the cases will be dissected in minute detail in the coming months, but thats not my goal here. Im
interested in the ultimate answers, of course, but what I find most intriguing at the moment is
watching how judges respond to the challenge of figuring out how old precedents fit with new realities.
The fit is awkward at best; the Supreme Courts description of a pen register -- a mechanical
device that records on a paper tape the numbers dialed on a telephone by monitoring the electrical impulses
reads like something from Alexander

Graham Bells laboratory. Differing conclusions about whether the old cases are even relevant, let
alone controlling, have divided the lower courts, state as well as federal. For anyone interested in
caused when the dial on the telephone is released --
how the law develops in a system ostensibly governed by precedent, the progress of these cases promises to be the
best show in town.
Ext: Blanket collection violates

4th Amendment
Blanket collection violates 4th amendment allowing it is an
unprecedented constitutional change
Barnett and Harper 2013
(Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center,
director of Georgetown Center for the Constitution, formerly a prosecutor in States Attorneys Office in Chicago,
represented the National Federation of Independent Business in its 2011 constitutional challenge to the Affordable
Care Act, argued the 2004 medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court, won 2008
Guggenheim Fellowship in Constitutional Studies, publications include more than one hundred articles and reviews,
as well as nine books, including Restoring the Lost Constitution: The Presumption of Liberty, Oxford Introductions to
U.S. Law: Contracts, Contracts: Cases and Doctrine, and Constitutional Law: Cases in Context, B.A., Northwestern,
J.D., Harvard; Jim Harper Global Policy Counsel of the Bitcoin Foundation, Senior Fellow at Cato, formerly counsel to
committees in both the U.S. House and Senate, and provided government relations counsel to PayPal, VeriSign, and
other companies in tech, telecom and e-commerce, original member of the U.S. Department of Homeland Securitys
Data Privacy and Integrity Advisory Committee, co-edited the book Terrorizing Ourselves: How U.S.
Counterterrorism Policy Is Failing and How to Fix It, J.D. from UC Hastings College of Law; Why NSAs Bulk Data
Seizures Are Illegal and Unconstitutional; Oct. 21, 2013; http://www.fed-soc.org/publications/detail/why-nsas-bulkdata-seizures-are-illegal-and-unconstitutional -- JRS)
II. The NSAs Section 215 Bulk Data Collection Orders are Unconstitutional A. Blanket Data Seizures Are Modern Day
General Warrants The Fourth Amendment has two parts: First, The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.6 And
second, no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly
The Fourth Amendment

was adopted to prevent general or nonspecific warrants.
The Fourth Amendment requires the things to be searched or seized under a warrant to
be described particularly.8 But the order issued to Verizon under the NSA data
collection program requires the company to produce on an ongoing daily basis all call detail
records.9 Because they are not particular, such orders are the modern
incarnation of the general warrants issued by the Crown to authorize
searches of American colonists. As with general warrants, blanket seizure
programs subject the private papers of innocent people to the risk of
searches and exposure, without their knowledge and with no realistic
prospect of a remedy.
The Founders thought that the seizure of papers for later perusal or
searching was an abuse distinct from, but equivalent to, the use of
general search warrants, which is why papers was included in the
Fourth Amendment in addition to effects or personal property.10
[A]t the heart of Whig opposition to seizing papers was the belief that any
search of papers, even for a specific criminal item, was a general search. It
followed that any warrant to sift through documents is a general warrant,
even if it is specific to the location of the trove and the item to be
seized.11
Allowing blanket seizures of privately-held data would constitute an
describing the place to be searched, and the persons or things to be seized.7
unprecedented legal and constitutional sea change
that should be undertaken, if at all,
only after robust public debate and a constitutional amendment that is itself worded specifically enough to govern
It is not a policy that should emerge from an

advisory panel of judges to which the People are not privy.
the executive branch in the future.
Tech has changed the calculus people reasonably expect to

keep their data private
Donohue 2013
(Laura K.; professor at Georgetown University Law Center and director of
Georgetowns Center on National Security and the Law; NSA surveillance may be
legal but its unconstitutional; June 21, 2013;
http://www.washingtonpost.com/opinions/nsa-surveillance-may-be-legal--but-itsunconstitutional/2013/06/21/b9ddec20-d44d-11e2-a73e-826d299ff459_story.html -JRS)
As a constitutional matter, the Supreme Court has long held that, where an
individual has a reasonable expectation of privacy, search and seizure may
occur only once the government has obtained a warrant, supported by
probable cause and issued by a judge. The warrant must specify the
places to be searched and items to be seized.
There are exceptions to the warrant requirement. In 1979 the court held that the use of a pen register to record
numbers dialed from someones home was not a search. The court suggested that people who disclose their
communications to others assume the risk that law enforcement may obtain the information.
three decades later, digitization and the explosion of social-network

technology have changed the calculus. In the ordinary course of life, third
parties obtain massive amounts of information about us that, when
analyzed, have much deeper implications for our privacy than before.
More than
As for Section 702 of FISA, the Supreme Court has held that the Fourth Amendment does not protect foreigners
from searches conducted abroad. But it has never recognized a foreign intelligence exception to the warrant
requirement when foreign-targeted searches result in the collection of vast stores of citizens communications.
Americans reasonably expect that their movements, communications and

decisions will not be recorded and analyzed by the government. A majority
of the Supreme Court seems to agree. Last year, the court considered a case involving 28-day
GPS surveillance. Justice Samuel Alito suggested that in most criminal investigations, long-term monitoring
impinges on expectations of privacy. Justice Sonia Sotomayor recognized that following a persons movements
reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.
The FISC is supposed to operate as a check. But it is a secret court,

notorious for its low rate of denial. From 1979 to 2002, it did not reject a
single application. Over the past five years, out of nearly 8,600
applications, only two have been denied.
Allowing mass collection is bad precedent makes a mockery

of 4th Amendment
Granick and Sprigman 2013
Jennifer Stisa Granick, director of civil liberties at the Stanford Center for Internet
and Society; Christopher Jon Sprigman, professor at the University of Virginia School
of Law; The Criminal N.S.A; June 27, 2013
http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html?
pagewanted=all&_r=0 JRS)
The Fourth Amendment obliges the government to demonstrate probable
cause before conducting invasive surveillance. There is simply no
precedent under the Constitution for the governments seizing such vast
amounts of revealing data on innocent Americans communications.
The government has made a mockery of that protection by relying on
select Supreme Court cases, decided before the era of the public Internet
and cellphones, to argue that citizens have no expectation of privacy in
either phone metadata or in e-mails or other private electronic messages
that it stores with third parties.
This hairsplitting is inimical to privacy and contrary to what at least five
justices ruled just last year in a case called United States v. Jones. One of the most conservative
justices on the Court, Samuel A. Alito Jr., wrote that where even public information
about individuals is monitored over the long term, at some point,
government crosses a line and must comply with the protections of the
Fourth Amendment. That principle is, if anything, even more true for
Americans sensitive nonpublic information like phone metadata and social
networking activity.
We may never know all the details of the mass surveillance programs, but we know this: The
administration has justified them through abuse of language, intentional
evasion of statutory protections, secret, unreviewable investigative
procedures and constitutional arguments that make a mockery of the
governments professed concern with protecting Americans privacy. Its
time to call the N.S.A.s mass surveillance programs what they are:
criminal.
Cloud computing changes the equation were not talking

about a purse anymore
(Richard Raysman is a partner at Holland & Knight and Peter Brown is the principal
at Peter Brown & Associates; How Has Digital Ubiquity Affected Fourth Amendment
http://www.newyorklawjournal.com/id=1202728535476/How-Has-Digital-UbiquityAffected-Fourth-Amendment-Law#ixzz3eVZI52AM -- JRS)
cloud computing has further complicated the
scope of privacy interests associated with a digital data device, as vast quantities of
personal data are now accessible via remote servers often run by thirdparty providers. See Com. v. Stem, 96 A.3d 407 (Pa. Super. Ct. 2014) (citing Riley to conclude a warrantless
Moreover, the increasing prevalence of
search of a cell phone was unconstitutional; later expressing qualms about the warrantless search of data located in
Data stored in the cloud can be accessed unbeknownst to the user,

which creates further hurdles in an attempt to redress any invasion of
privacy occurring as a result of access to the data. In the past, any remote
search of a container, such as a purse, was necessarily limited to the size
of the container. With respect to even the most limited digital storage devices, this is hardly so.
the cloud).
Blanket collection is unconstitutional

Barnett and Harper 2013
(Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center,
director of Georgetown Center for the Constitution, formerly a prosecutor in States Attorneys Office in Chicago,
represented the National Federation of Independent Business in its 2011 constitutional challenge to the Affordable
Care Act, argued the 2004 medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court, won 2008
U.S. Law: Contracts, Contracts: Cases and Doctrine, and Constitutional Law: Cases in Context, B.A., Northwestern,
J.D., Harvard; Jim Harper Global Policy Counsel of the Bitcoin Foundation, Senior Fellow at Cato, formerly counsel to
committees in both the U.S. House and Senate, and provided government relations counsel to PayPal, VeriSign, and
other companies in tech, telecom and e-commerce, original member of the U.S. Department of Homeland Securitys
Data Privacy and Integrity Advisory Committee, co-edited the book Terrorizing Ourselves: How U.S.
Counterterrorism Policy Is Failing and How to Fix It, J.D. from UC Hastings College of Law; Why NSAs Bulk Data
Seizures Are Illegal and Unconstitutional; Oct. 21, 2013; http://www.fed-soc.org/publications/detail/why-nsas-bulkdata-seizures-are-illegal-and-unconstitutional -- JRS)
the people are the

principals or masters and those in government are their agents or
servants. For the people to control their servants, they must know what
their servants are doing. The secrecy of these programs, and the
proceedings by which their constitutionality is assessed, make it
impossible to hold elected officials and appointed bureaucrats
accountable. Internal governmental checks, and even secret congressional
oversight, are no substitute for the sovereign people being the ultimate
judge of their servants conduct in office.
Such judgment and control is impossible without the information that
secret programs conceal. Without the recent leaks, the American public would have no idea of the
existence of these programs, and it still cannot be certain of their scope. What we do know reveals that these
programs are contrary to statute, and unconstitutional under any theory. The
American people need relief from this unprecedented surveillance of them
by their servants.
Conclusion In a republican form of government based on popular sovereignty,
Blanket collection is like a general warrant

Barnett 2015
(Randy, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, director of
Georgetown Center for the Constitution, formerly a prosecutor in States Attorneys Office in Chicago, represented
the National Federation of Independent Business in its 2011 constitutional challenge to the Affordable Care Act,
argued the 2004 medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court, won 2008
U.S. Law: Contracts, Contracts: Cases and Doctrine, and Constitutional Law: Cases in Context; Security Vs.
Freedom: Contemporary Controversies: The Thirty-Third Annual Federalist Society National Student Symposium On
Law And Public Policy -- 2014: Why The NSA Data Seizures Are Unconstitutional; Harvard Journal of Law & Public
Policy; 38 Harv. J.L. & Pub. Pol'y 3; Winter 2015 JRS)
I. BLANKET DATA SEIZURES ARE MODERN DAY GENERAL WARRANTS The Fourth Amendment has two parts. First,
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated." n11 And second, "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."
n12
the Fourth Amendment was adopted to prevent, among other things, what
"general" or non-specific warrants, which were blanket
authorizations for British authorities to search for contraband wherever
they might choose. In response to this abuse, the Fourth Amendment
requires [*6] the things to be searched or seized under a warrant to be
described "particularly." n13
With this in mind, the problem with the data collection orders issued to
Verizon and other telecommunications companies becomes obvious . These orders require
We know that
were called
the company to produce "on an ongoing daily basis . . . all call detail records." n14 Because they are not
such orders are the modern incarnation of the general warrants

issued by the Crown. As with general warrants, blanket seizure programs subject
"particular,"
the private information of innocent people to the risk of searches and

exposure, without their knowledge and with no realistic prospect of a
remedy.
Ext: 4th Amendment solves

Metadata should be seen as papers and effects under the 4th
Amendment
Cuccinelli and Fitzgibbons, June 1, 2015
(Ken Cuccinelli is the former attorney general of Virginia. Mark Fitzgibbons is coauthor with Richard Viguerie of The Law That Governs Government: Reclaiming The
Constitution From Usurpers And Society's Biggest Lawbreaker; NSA and how the
Fourth Amendment stops government abuses;
http://www.washingtonexaminer.com/nsa-and-how-the-fourth-amendment-stopsgovernment-abuses/article/2565387 -- JRS)
The Constitution's Bill of Rights was written in broad strokes in the context of the era. The First Amendment freedom
of the press, naturally extended to radio, then television, neither of which existed when the Bill of Rights was
The Fourth Amendment's protections of "papers and effects," which

are private records and property, should naturally extend to metadata.
The government's authority to reach metadata of persons and merchants
should be read in this originalist context.
adopted.
To preserve the Fourth Amendment, certain reforms would be useful in clarifying it for the 21st Century, and
there should be no
presumption that private records in the possession of private third parties
may be taken by the government without probable cause . Also, all warrants
and that includes administrative subpoenas should be issued only by
neutral judges or magistrates to preserve the separation of powers
inherent in the Fourth Amendment. Because warrants are issued in
chambers, there is no danger in matters of national security.
correcting mistakes of judicial, executive and legislative interpretation. First,
In Virginia, we have participated in promoting a "21st Century Fourth Amendment" that includes these needed
reforms and more, including tightening the definition of probable cause to ensure valid laws are being enforced.
These originalist reforms make sense for all the states, and even for the federal government, in protecting our
security from Orwellian government.
Analogy to sifting through papers supports the plan

Husain 2014
(Waris Husain, Esq., adjunct professor at Howard University School of Law, faculty adviser for Goler Teal Butcher
International Moot Court Team, currently pursuing his S.J.D. at American University Washington College of Law,
writing a comparative dissertation focusing on the Supreme Courts of the United States, Pakistan and India, LL.M. in
international human rights and international business from Washington College of Law, JD Howard University BA in
government from the College of William and Mary; Surveillance And Law Enforcement: Tools In The Fight Against
Terror In A Comparative Study Of The United States And Pakistan; 21 ILSA J Int'l & Comp L 25; ILSA Journal of
International & Comparative Law, Fall 2014 JRS)
B. Recommendations
The general recommendation to both the United States and Pakistan regarding
surveillance laws is to reevaluate the way in which the government and its
intelligence agencies interpret the balance between security and privacy.
There should be an increased reliance on the historical protections
afforded to citizens through physical searches by analogizing them to
modern surveillance practices. Both Pakistan and the United States have developed
laws and common law practices that require the state to respect the
privacy of its citizens by limiting the scope of its searches, which should
be respected by intelligence agencies in battling terrorism . Along with respecting the

rights of the citizen, the investigating authorities must also respect the right of the judicial branch to be involved throughout the
The
warrant requirement is an embodiment of this right, and should continue
to be applied for terrorism cases in both Pakistan, through the Fair Trial Act, and the United States,
through the FISA courts.
surveillance process in order to hold the authorities accountable for their duty to uphold the security-privacy balance.
For the United States, the executive branch and FISA courts themselves should reconsider easing the burden of
proof for investigating authorities dealing with terrorism, and should maintain the "probable cause" standard or
something near it in order to allow the government to investigate properly without intruding on the rights of
citizens. In Pakistan, the Fair Trial Act should either be amended or interpreted by the Supreme Court as requiring
proof of probable cause for warrant requesting agencies, rather than the "reasonable suspicion" standard currently
in place.
The wall between criminal investigation and intelligence gathering should be reconstructed in order to limit the
scope of surveillance that international intelligence agencies can engage in domestically. For the United States,
there needs to be a restructuring of the surveillance process to prohibit the CIA from being able to either receive
warrants from the FISA courts to monitor citizens, or worse, to do so without a warrant. The FBI and local police
authorities should continue to share information and conduct surveillance in pursuit of criminal prosecutions. In
Pakistan, the Fair Trial Act should be reexamined to place a greater emphasis on the power of local police in
investigating terrorist plots through electronic surveillance, shifting this power out of the hands of the nation's
intelligence agencies like the lSI.
Further, while the target of warrant should likely not be informed of the government's monitoring as is required in
physical searches, there must [*59] be something that holds intelligence agencies and police accountable for their
actions. These officials often rely on governmental immunity to avoid punishment for carrying out abuses of the
surveillance process. Therefore, a personal enforcement mechanism is the only way to hold these individuals
accountable. Both countries should consider allowing the same judicial body that grants warrants the power to hold
intelligence officers in contempt of court if they are attempting to abuse the warrant process, either by bringing
frivolous requests or failing to abide by the limitations required by the warrant.
maintaining a proper balance between constitutional rights and the

duty of the state to investigate and prosecute terrorism will require a
vigilant judicial body and a more respectful executive branch. Judges have
been silenced in many ways in the age of terrorism either fearing for their personal safety as in Pakistan, or the
risk of allowing another terrorist attack to occur due to inadequacies in
the judicial process, as in the United States. However, just as in all other criminal cases, the job of the judiciary is to
Lastly,
hold the state accountable for when it wishes to invade the privacy or freedom guaranteed to its citizens. Holding the state
accountable for its duties does not equate to co-opting or assisting terrorism, but rather, is an ideological assault against the lawless
As guardians of the Constitution, the judicial branch

must be reinvigorated regarding issues of privacy and modem
surveillance, rather than conceding to fear-mongering and anti-judicial
principles advocated by anti-terrorism hawks.
nature of terrorist methodologies.
History and plain text supports the plan

Milligan 2014
(Luke M.; law professor at Univ. of Louisville; The Forgotten Right to Be Secure;
Hastings Law Journal, Vol. 65:713, Apr 2014; http://ssrn.com/abstract=2302850
JRS)
The Fourth Amendment can be read, however, to safeguard more than a right
to be spared an unreasonable search or seizure.20 The Amendment provides for
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
the to be
secure phraseology remains largely forgotten: it is treated on mere occasion by
commentators;22 and it has been left undefined in the case law.23 Historical and textual analyses
of to be secure, however, suggest the existence of a Fourth Amendment
right to protection against unreasonable searches and seizures, and
perhaps a right to be free from fear against such government action.
Support for these interpretations of to be secure rest in the dictionary
definitions of secure,24 the structure of the Fourth Amendment,25 and
and seizures.21 Unlike its textual counterparts (such as search, seizure, and unreasonable),
founding-era discourse concerning searches and seizures, which regularly

emphasized the harms attributable to the potentiality of unreasonable
searches and seizures.26
Standing and judicial review solves

Correia 2014
(Evan R. C.; J.D. Candidate, May 2015, Temple University Beasley School of Law; Note & Comment:
Pulling Back The Veil Of Secrecy: Standing To Challenge The Government's Electronic Surveillance
Activities; Temple Political & Civil Rights Law Review; 24 Temp. Pol. & Civ. Rts. L. Rev. 185; Fall 2014
JRS)
The Klayman and ACLU v. Clapper decisions demonstrate the potential for the
judiciary to subject government surveillance to meaningful scrutiny . n306
Specifically, there must be a review process that is open and adversarial, as opposed to the one-sided, closed
hearings before the FISC in which judges consider only arguments from the government and operate in secret. n307
even if both suits ultimately succeed on appeal, the impact would

likely affect only the government's collection of metadata. Measures must
be adopted to facilitate meaningful judicial review of other government
surveillance programs rather than [*214] the present reliance on the disclosure of classified material .
In the field of electronic surveillance, the role of the judiciary is essential
to ensuring a proper separation of powers and protecting individuals from
"unreasonable searches and seizures" by the government as provided by the
Fourth Amendment. n308
However,
Conclusion Looking back at the events of 2013, in light of the extensive legislative history of government electronic
surveillance, one can see the problems currently facing those who seek to challenge the constitutionality of the
government's activities. While the Snowden leaks revealed the scope of some, but certainly not all, of the
government's electronic surveillance,
the Supreme Court's decision in Clapper will

remain a significant obstacle for future litigants who do not have evidence of the kind
leaked by Snowden. The leak's role in the establishment of the panel and the filing of Klayman
and ACLU v. Clapper are important to the protection of privacy rights. However, they are not aimed
at fixing the underlying problem: that government surveillance programs
have been effectively isolated from meaningful judicial review.
The only way to properly remedy the issue is to reform the system as a
whole, in a manner that would provide future litigants with the proof
necessary to establish standing and subject secret government
surveillance to judicial review. This does not mean a system that discloses classified material
which could potentially jeopardize national security. Rather, it means a system where an adversarial process creates
the proper balance between national security and the protection of individual privacy.
NSA needs an overhaul 4th amendment property rights solve

Blass 2015
While discussion over the intelligence gathering programs administered by the National Security Agency exploded
in 2013, concern over domestic spying is hardly a recent phenomenon.5 As early as 1975, in the aftermath
of the Watergate scandal, members of Congress were concerned about the National Security Agencys intelligence
gathering programs.6 Even then, members of
Congress feared that the National Security
Agencys intelligence gathering programs would be turned towards United

States citizens and used in domestic spying operations .7 Almost forty years later,
such fears have come true. The 2013 leaks generated more questions than answers. What remains
true is that the constitutional and regulatory framework governing personal
data and electronic communications needs an overhaul. In an era of
intrusive domestic surveillance, individuals should own property rights in
their personal data and electronic communications in order to receive the
protection they are truly entitled to under the Fourth Amendment .
People conceive of their data as property plan key to trust in

government and integrity of 4th Amendment
Blass 2015
The Court Can Easily Apply Its Current Jurisprudence to Vested Property
Rights in Personal Data and Electronic Communications The ease with which the
Courts existing trespass jurisprudence can be applied to personal data and electronic communications
demonstrates that vesting property rights in those intangibles in order to facilitate application of the trespass
theory will provide more Fourth Amendment protection. Analyzing surveillance of e-mail and other electronic
communications under a trespass theory would be novel in the criminal context, but not in the civil context, which
further demonstrates the ease by which the Court could apply its trespass theory of the Fourth Amendment to
electronic communications and personal effects.99 A return to a property basis is valuable for additional reasons,
however.
C. Property Law Concepts More Accurately Represent Public Conceptions of Electronic Communications, Personal
Property law is a good fit for electronic

communications and personal data for several reasons. First of all, people conceive of
their emails and personal data as property.100 Like tangible personal
effects, individuals generally have the right to exclude others from
accessing their digital communications and personal data, even when it is in the
Data, and Other Intangible Internet-Based Information
custody of a third party, such as a hospital or financial institution.101
Harmony between the law and public expectations of what the law should
be is important for the integrity of the Fourth Amendment, the courts, and
our judicial system. As Lon Fuller articulated in his famous book, The Morality of Law, there is a
reciprocal relationship between the government and the public, and where
the public does not feel the laws are just or that the government will
honor them, the citizens fidelity to the law will be tested .102 If people conceive of
their personal data and electronic communications as property, then a congruent legal framework would vest
individuals with property rights in that content, or as Patricia Mell describes it, their electronic persona.103
while individuals may conceive of their personal data and

electronic communication as property, the ability to restrict access and the
disclosure restrictions and procedures imposed upon third parties in
possession of such personal information are largely rooted in concepts of privacy, not
property.10
Paradoxically,
4th amendment justifies standing for surveillance cases


Consider, first, Professor Luke Milligans interpretation of the first eight words of the Fourth Amendment, to wit,
[t]he right of the people to be secure against unreasonable searches and seizures.102 Pointing to colonial
dictionaries, case law, legislation and literature, Professor Milligan argues that the Fourth Amendments choice of
the words [t]he right of the people and to be secure, combined with the colonists clear disdain for general
warrants, demonstrates that the framers were as worried about the oppression caused by a regime of unreasonable
contrary to the Courts

statements in Clapper and Laird, Professor Milligan concludes that the
Constitution guarantees not only freedom from unreasonable searches
and seizures but also freedom from the fear of such searches and
seizures.104 In other words, the Fourth Amendments history, structure and text
demonstrate that the Fourth Amendment has preemptive as well as
sanctioning power. Acceptance of that argument does not necessarily mean that every United States
searches as they were about preventing particular searches.103 Thus,
citizen ought to have standing to challenge a statute on a chilling theory. To assure the efficient use of judicial
resources, adequate advocacy and the other positive attributes associated with the case and controversy
requirement, plaintiffs should have to show, as the plaintiffs in Clapper did,105 that the government has officially
adopted an unregulated surveillance program that has affected their communications in specifiable ways. More
plaintiffs should only have standing if they can show: (1) the
existence of a surveillance program that does not adhere to traditional
Fourth Amendment constraints (i.e., a warrant based on particularized
probable cause),106 which (2) causes a significant, concrete and reasonable (i.e., not a fanciful
or paranoid) modification of the plaintiffs typical methods of communicating
specifically,
with other people, particularly (given the Fourth Amendments focus) their private methods of communicating. For
prudential reasons, the plaintiffs might also be required to demonstrate that (3) the inhibited activity is not criminal
in nature and that (4) the covert nature of the surveillance program means that it is not likely to be challenged
through another judicial forum.
Fourth amendment already changing privacy should trump

law enforcement for blanket collection
Richard Raysman is a partner at Holland & Knight and Peter Brown is the principal at
Peter Brown & Associates; How Has Digital Ubiquity Affected Fourth Amendment
http://www.newyorklawjournal.com/id=1202728535476/How-Has-Digital-UbiquityAffected-Fourth-Amendment-Law#ixzz3eVZI52AM
http://www.newyorklawjournal.com/id=1202728535476/How-Has-Digital-UbiquityAffected-Fourth-Amendment-Law#ixzz3eVYB5zo9 JRS)
Conclusion As Riley and its progeny epitomize, Fourth Amendment jurisprudence has been
permanently altered as a result of the proliferation of data storage devices, namely
smart phones and PCs. After all, some of the most forceful language from the majority opinion in Riley
elucidates why a search of a purse versus an examination of a hard drive is an irreconcilable dissimilarity. The
privacy interests and law enforcement prerogatives are now

continuously subject to rapid revision. Some exceptions to the Fourth Amendment warrant
implications for
requirement remain unchecked, while others appear anachronistic. The exceptions contingent on the consent or
prior search of a device remain largely intact, as whether by choice or not, one's privacy interests in personal
information, no matter how damning or testimonial, is diminished once it has been divulged to someone other than
law enforcement. However, even when such interest is weakened,
the breadth and depth of
information that can be gleaned from a cursory glance at contacts, messages, files, and metadata, even
during an ostensibly targeted search as in Lichtenberger, warrants a reassessment of law
enforcement rights to this information, even after it is no longer technically private.
privacy interests associated with these devices have

been reappraised, and subsequently heightened. As the Chief Justice opined in Riley,
What is most apparent is that
modern cell phones are hardly "just another technological convenience," and in fact could contain and reveal "the
such gateways to the most intimate components of

one's life must be evaluated with a greater emphasis on retaining that
privacy, even at the expense of the ability of law enforcement to combat crime. Precisely
privacies of life." Accordingly,
how much such ability will be constricted remains largely uncertain, but the trend heretofore has favored the
accused, even in milieus in which governmental interests are reiterated to be at their apogee.
Using providers with privacy policies should be evidence of an

expectation of privacy
Barnett 2015

the Court should
now recognize that, when consumers enter into terms of service contracts,
whether with telecommunications companies, banks, or credit card
companies, containing privacy assurances, they "reasonably expect" their
information to be used solely in ways specified in those policies. n61 As
Justice Marshall observed in his dissenting opinion in Smith, "[t]hose who
disclose certain facts to a bank or phone company for a limited business
purpose need not assume that this information will be released to other
persons for other purposes." n62
When people put their information behind passwords, they "reasonably
expect" it to be private, every bit as much as Mr. Katz did when he shut
the door to the public phone booth. n63 As Justice Sotomayor noted in her concurring
opinion in Jones, the third-party doctrine "is ill suited to the digital age , in which
people reveal a great deal of information about themselves to third
parties in the course of carrying out mundane tasks." n64 The NSA's
program of "pen registers for everyone" has shown how the conventional
reading of Katz's "reasonable expectation of privacy" test is patently
unsuited for the age of mass storage of data accessed in secret and
analyzed by super computers.
And with regard to information of our private activity that is entrusted to third parties,
SOP justifies standing

SOP concerns justify standing

JRS)
This Article describes and analyzes standing doctrine as it applies to covert government surveillance, focusing
primarily on practices thought to be conducted by the National Security Agency (NSA), although the analysis could
also apply to covert domestic surveillance programs, such as fusion centers.6 Part II of the Article describes the
The Supreme Court has made

challenges to this type of surveillance very difficult, on the ground that they
intrude upon the power of the legislative and executive branches. Part III of this
Article explains why this view misconstrues the nature of claims that contend
covert surveillance practices are unconstitutional. Whether based on the
Fourth Amendments prohibition on unreasonable searches and seizures
or the First Amendments guarantee against abridgements of speech and
association, these claims seek to ensure that the political branches carry
out their proper roles. Specifically, in contrast to most types of generalized
claims that are routinely dismissed on standing grounds, these cases seek
to ensure that the legislative branch does not grant, and the executive
branch does not usurp, power that can undermine the foundations of the
democratic process. Relying on the process theory of John Hart Ely, this part demonstrates why
litigants who can show that their ability to participate in the political
process has been compromised by covert surveillance should have
standing to make these constitutional claims even if they cannot prove the
surveillance has been directed at them.
current state of standing law in the covert surveillance context.
SOP issues justify judicial review

The separation of powers rationale for a narrow standing requirement is
the more potent of the two. If judicial review of decisions by the other branches is to be minimized, then a
narrow standing doctrine is an effective method of doing so. That is the gravamen of Clapper. 77
one could argue that the separation of powers rationale for a narrow
standing doctrine is stronger in the context of panvasive surveillance than
in many other settings. When a government action affects virtually
everyone, the popularly-elected legislative branch could be said to be the
best source of any remedy sought.78 The generalized grievance rule noted above is a means of
Indeed,
implementing this notion.79 It results in a denial of standing when the relief sought no more directly and tangibly
benefits [the plaintiff] than it does the public at large.80 Thus, the Court has often denied standing in so-called
taxpayer lawsuits, as well as in suits involving claims that the environment or other general interests have been
harmed by governmental action or inaction.81
As the Supreme Court stated in FEC v.

Akins, 82 the Court has sometimes determined that where large numbers
of Americans suffer alike, the political process, rather than the judicial
process, may provide the more appropriate remedy for a widely shared
grievance.83
When the widely shared grievance has to do with the proper functioning of the
political process itself, however, the calculus should change. Akins itself
recognized this point. That case involved a claim that the government had erroneously categorized an organization
as a political committee for election campaign purposes, resulting in the plaintiffs inability to force the
organization to abide by statutory spending reporting requirements.84 In deciding that the plaintiffs had standing to
where the asserted injury is directly related to

voting, the most basic of political rights, then the fact that it is widely
shared does not deprive Congress of constitutional power to authorize its
vindication in the federal courts.85 Akins suggests that when the plaintiffs
claim is directed at the functioning of the political process rather than at a
statute or action that results from that process, standing requirements
should be relaxed.
pursue this claim, the Court stated that
SOP justifies standing independent of 1st and 4th amendments


The political process theory of constitutional interpretation might provide such an explanation. As laid out by John
Hart Ely in Democracy and Distrust, political process theory dictates a narrow vision of judicial review when
courts are interpreting vague provisions like the Equal Protection and Due Process Clauses.113 But while Ely
argued
that courts should still be quite willing to protect participational values associated
with voting, political involvement, government transparency, and the
like.114 Those are the values, Ely argued, (1) with which our Constitution
has preeminently and most successfully concerned itself, (2) whose
imposition is not incompatible with, but on the contrary supports, the American system of
representative democracy, and (3) that courts set apart from the political process are
uniquely situated to impose.115 According to Ely, the Constitution establishes a process of
thought courts should resist gleaning substantive meaning from amorphous constitutional language, he
government, to wit, representative democracy.116
The role of the judiciary in this constitutional scheme is to discern when

the democratic process is not functioning properly . Echoing the language in footnote
four of United States v. Carolene Products Co.,117 Ely emphasized that any legislative or
executive action that undermines interests essential to political
participation should be declared unconstitutional by the courts .118 As

developed in the next section, this language describes a separation of powers
principle that could provide a merits ground, independent of the Fourth
and First Amendments, for challenging certain types of government
actions. But it also is relevant to standing analysis; more specifically, it anticipates the
holding in Akins, 119 without the constricting requirement that Congress authorize the suit. Political
process theory dictates that citizens whose participation in the political
process is concretely affected by a government action should be able to
challenge it.
If one adopts this political process perspective in thinking about standing to challenge covert practices like the
NSAs metadata program, the question then becomes how covert surveillance might affect this participation.
unconstrained surveillance,
especially of our intellectual activities, threatens a cognitive revolution
that cuts at the core of the freedom of the mind that our political
institutions presuppose.120 This is a chilling argument, but a chilling
argument framed in terms of its impact on the political process, not on
individual rights.
Professor Richards provides a hint with his observation that
Standing requirements are supposed to protect SOP


Standing doctrine in federal court places a heavy burden on plaintiffs to
show that the government action claimed to be illegal had, is having, or will have a direct effect on
them. The plaintiff must show a concrete and particularized harm that is
actual or imminent, not conjectural or hypothetical, that is fairly traceable to the
defendants conduct, and that is likely to be redressed by a favorable
decision.64 Additionally, the plaintiffs claim must assert his or her own interest, not the interest of a third
party,65 state something more than a generalized grievance aimed merely at assuring the government abides by
the law,66 and fall within the zone of interests protected by the relevant statute.67
According to the Supreme Court, these standing requirements exist for two
reasons. First, they implement Article III of the Constitution, which limits federal court jurisdiction to certain Cases
and Controversies.68 The case-and-controversy requirement helps ensure that litigants advocate the case
diligently, maximizes efficient use of scarce judicial resources, limits judicial inquiries into those matters most
conducive to investigation through the adversarial process, and minimizes the issuance of advisory opinions
unelucidated by a specific fact pattern.69 The second reason for the standing requirement, and the one emphasized
to prevent the judicial process from being used to usurp

the powers of the political branches.70 As the Court stated in Raines v. Byrd, 71 the
Courts standing inquiry has been especially rigorous when reaching the
merits of the dispute would force us to decide whether an action taken by
one of the other two branches of the Federal Government was
unconstitutional.72
in Clapper, is the desire
In the covert surveillance context, the first rationale should not carry much weight. As in Clapper, the parties will
often be composed of lawyers and human rights activists, who can be counted on to pursue their constitutional
claims aggressively.73 Amicus briefs can and will fill any gaps in constitutional argumentation left by the parties, at
least at the ultimate appellate stages of the litigation.74 Further, if the challenge is a facial one or is aimed at the
surveillance program as a whole (e.g., an attack on the bulk collection process or on the hop rule75), any ambiguity
about how the program worked in a particular instance against a particular plaintiff will not affect the ability of the
court to resolve the issues raised. If and when the courts determine that the program is constitutional on its face,
as-applied challenges could be subject to more demanding standing requirements, analogous to what Clapper
imposed, or to limitations in the discovery process.76

One response to standing arguments based on the insights of scholars like Milligan and Richards is that they ignore
when the
Fourth Amendment is the basis for the claim, the Supreme Court has
explicitly conflated standing with the Amendments substance. In Rakas v.
the close relationship between standing and the scope of the right in question.131 Indeed,
Illinois, 132 the Court stated that the decision as to whether a defendant can make a Fourth Amendment claim
forthrightly focuses on the extent of a particular defendants rights under the Fourth Amendment, rather than on
any theoretically separate, but invariably intertwined concept of standing.133 If a government action is not a
Fourth Amendment search vis--vis the litigant, Rakas held, then the litigant lacks standing to challenge it.
If
that reasoning is the correct approach to standing, then in cases

challenging covert surveillance on Fourth or First Amendment grounds
everything rides on whether the surveillance, as it operates in the way the
plaintiff describes it, infringes the plaintiffs reasonable expectations of
privacy or speech and association interests.134 While such a finding would
presumably be made in the Clapper case, which involved the alleged interception of the content of overseas phone
is less certain in connection with collection and querying of

metadata. The Fourth Amendment is only meant to protect reasonable
expectations of privacy.136 Supreme Court case law to date strongly
suggests that any privacy one might expect in ones metadata or Internet
activity is unreasonable, because we assume the risk that third parties to which we knowingly impart
calls,135 it
information (here phone companies and Internet service providers) will in turn divulge it to the government.137
The same type of analysis might limit standing in cases brought under the First
Amendment. As the Court intimated in Clapper, 138 one could conclude that even if
speech and association are inhibited by surveillance, that inhibition proximately
results from the individuals choices, not from anything the government has done to
the individual.139 On this view, even if an individual can show that he or she was
targeted, standing to contest surveillance does not exist unless and until the
government uses the seized information against the individual, because otherwise a
colorable claim that a constitutionally cognizable interest was infringed cannot be
made.

The Clapper plaintiffs wanted to argue that interception of phone calls under section
702 of FISA violated both the Fourth Amendment and the First Amendment.90 They
contended they had standing to make these claims because their concern about
having their overseas conversations intercepted by the NSA compromised their
ability to locate witnesses, cultivate sources, obtain information, and communicate
confidential information to their clients.91 They also alleged that, as a result of
their concern about the NSAs surveillance, they had ceased engaging in phone
and email communications with certain people, and that they had undertaken
costly and burdensome measures to protect confidentiality of their
communications.92 In short, the plaintiffs argued that Section 702 of FISA chilled
their communications overseas.
The Second Circuit granted standing on the ground that the plaintiffs fear of
surveillance was not fanciful, paranoid, or otherwise unreasonable.93 But the
Supreme Court disagreed. A five-member majority concluded that such a fear is
insufficient to create standing,94 most prominently citing Laird v. Tatum, 95 a
Supreme Court decision that had denied standing to plaintiffs wanting to challenge
what they hypothesized were the militarys efforts to investigate and compile
dossiers on them.96 The Laird Court concluded that the ability to challenge a
government surveillance practice cannot be derived from a chilling effect
aris[ing] merely from the individuals knowledge that a governmental
agency was engaged in certain activities or from the individuals
concomitant fear that, armed with the fruits of those activities, the agency
might in the future take some other and additional action detrimental to
that individual.97 Taken literally, this language would deny standing not only on
Clappers facts, but even if the plaintiffs had been able to show that their calls had
been intercepted;98 only use of the intercepts against them would trigger standing
under Laird.
Whether the Court meant to sanction that result is not clear. But at a minimum
Clapper and Laird appear to firmly reject any standing argument based on
the claim that the challenged government program inhibits certain types
of behavior, absent a further showing that the government has or
certainly will take more direct action against the challengers.99 That the
Court really meant certainly was brought home by the fact that it refused to find
standing despite the dissents persuasive arguments that there was a very high
likelihood the government had used and would continue to use section 702 as
authority to intercept at least some of the plaintiffs communications.100
What the majority failed to recognize is that, while the chilling effect
described by the Clapper plaintiffs did not definitively prove their calls had
been intercepted, it certainly undermined the political process that,
according to Clapper, standing doctrine is meant to protect.101 Two recent
articles provide the building blocks for this argument.

JRS)
90. Clapper v. Amnesty Intl USA, 133 S. Ct. 1138, 1146 (2013). The plaintiffs also
argued that section 702 violated Article IIIs case and controversy requirement and
separation of powers principles by allowing the Foreign Intelligence Surveillance
Court to issue a warrant in the absence of a case or controversy. See Amnesty Intl
USA v. McConnell, 646 F. Supp. 2d 633, 64243 (S.D.N.Y. 2009), vacated sub nom.
Amnesty Intl USA v. Clapper, 638 F.3d 118 (2d Cir. 2011),
Standing in national security cases key to protect SOP


JRS)
Part V of the paper briefly addresses some objections to these arguments in favor of standing, the primary one of which is that
national security matters should be handled differently than other cases. In fact, as recent allegations about the effects of executive
it is precisely national security

cases that most dramatically raise political process issues requiring the
attention of the judiciary. These cases bring home the point that standing
doctrine should be structured so that the courts have a role in ensuring
the continued viability and independence of the legislative and executive
branches, goals that the Court says standing doctrine is designed to
enhance. As Chief Justice Roberts has said, albeit in a decision outside the standing context, [T]he obligation
of the Judiciary [is] not only to confine itself to its proper role, but to
ensure that the other branches do so as well.8
branch spying on members of Congress and the press accentuate,7
SQ standing precludes review

SQ standing requirements make federal surveillance immune
from judicial review
JRS)
government surveillance activitiessurveillance programs meant to
be kept secret from the general publichave expanded tremendously in scope
since September 11, 2001.1 Because much of this surveillance is conducted
without a warrant or probable cause, it may violate the Fourth
Amendment or some other constitutional provision .2 But to make that
argument in court a litigant must have standing, which according to the
Supreme Court exists only when the challenger can make a plausible claim
of injury that is concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a favorable
ruling.3 Precisely because much modern-day surveillance is covert, this demanding
standing test may be impossible to meet.4 If so, unconstitutional
surveillance programs may be immune from judicial review. 5
By all reports, covert
SQ standing rules preclude judicial review

JRS)
The Courts recent decision in Clapper v. Amnesty International USA21 involved a challenge to section
702 of the Patriot Act, which allows the NSA to intercept communications of non-U.S. persons outside the United States in the
Despite the plaintiffs showing that they routinely

made overseas calls to parties likely to be targeted under section 702, the
Court denied them standing because they could not show that their calls
were in fact intercepted and thus could not prove that the injury they alleged due to the surveillance was either
actual or certainly impending.23 As the outcome in Clapper illustrates, because NSA surveillance is, by
design, covert, the standing requirement that plaintiffs allege a
absence of individualized suspicion.22
concrete injury can pose a serious obstacle to parties trying to

challenge it.24 The majority in Clapper nonetheless insisted that our holding today by no means insulates [section 702]
from judicial review.25
It noted that the Foreign Intelligence Surveillance Act requires that the government give notice when it intends to
use or disclose [any] information obtained or derived from [electronic surveillance] in a criminal prosecution, and
pointed out that, armed with such notice, the defendant could mount a challenge to section 702.26
The more intrusive the surveillance, the harder it is to get

standing
(Christopher, Milton Underwood Professor of Law, Vanderbilt University Law School, has been cited in almost 3,000
law review articles and treatises and more than 100 judicial opinions, including three U.S. Supreme Court decisions,
Fulbright Scholar, J.D., LL.M. University of Virginia, A.B. Princeton University; Symposium Issue: The Future of
National Security Law: Standing and Covert Surveillance; Pepperdine Law Review; 42 Pepp. L. Rev. 517 JRS)
Many of the NSAs other surveillance regimes either do not engage in any bulk collection or appear to follow a more limited version
of the twostep collection and query procedure used in the metadata program.54 If so, proof that a particular plaintiff has suffered or
will suffer actual injury will be harder to establish even for challengers of the first-stage data collection process. And, in contrast to
Judge Leons characterization of the metadata query process in Klayman ,
the query process in these other

surveillance programs is much more likely to start with the particular
identifier or suspect than with a perusal of the general database,55 meaning that any
given plaintiff will probably be unable to prove that he has been subject to
the second stage of the surveillance. In fact, under Clapper, when
surveillance is covert there is almost an inverse relationship between the
intrusiveness of the surveillance visited on a target and the ability of potential targets to obtain standing. If the
government covertly zeroes in on the content of persons phone call, email, or bank records, it is usually relying on some type of
suspicion, however attenuated, a fact which, by definition, means the query will not have the panvasive nature that bolsters the
That means that, in the absence of

notice, no individual will be able to provide more than speculation as to
whether he or she has been targeted.
Other possible mechanisms for challenging the metadata program and
related programs are unlikely to pick up the slack. Of course, as it has with
communications interceptions, Congress could grant standing (and require the predicate notice)
to those criminal defendants who are aggrieved by metadata surveillance.56 But because these
programs are even more covert than the Section 702 warrant-based
interceptions involved in Clapperand given the governments penchant
for engaging in parallel construction57 the chances of such notice
would probably be slim to none.58 Congress could also create a special advocate in the Foreign
case for standing vis-a-vis the NSAs bulk collection program.
Intelligence Surveillance Court to represent the interests of those whose information is queried, a procedure
endorsed by President Obamas special commission and included in the administrations recently proposed
legislation.59 But whether such an advocates office could be counted on to overcome its governmental provenance
and the nonchalance that can come from proceeding in secret to develop into a vigorous advocate for individual
constitutional claims is at best unclear.60 Moreover, the advocates ability to appeal an adverse decision by the
FISC is tenuous.61
SQ rules preclude challenge to USFG surveillance


In sum,
the federal government is engaged in widespread surveillance that,
under current law as construed by the Supreme Court, may not be challengeable as a practical
matter. Programs that could be blatantly unconstitutional might be allowed to continue unless and until the
The Supreme Court has made

clear that standing need not be granted simply because unconstitutional
government action may otherwise be immune from judicial review. 63 But any
legislature or the executive branch decides to shut them down.62
government practice that has occasioned as much controversy as the NSAs surveillance ought to be subject to
such review if a plausible standing argument can be made. The next two parts of this Article proffer such
arguments.
Smith v Maryland destroys 4th

Amendment
Smith eviscerated 4th amendment protections
Blass 2015
The Supreme Courts Fourth Amendment Jurisprudence Does Not Adequately Protect the Rights and Interests of the
Public Because it Excludes Modern Means of Communication and Data Generated Through the Use of Web-Based
the public is left with

little protection by way of the Constitution as currently interpreted by the
Supreme Court. The Constitution, which sets the floor for government behavior where Fourth Amendment
Applications While the NSA continues to disregard statutes such as FISA and ECPA,
rights are implicated, provides almost no protection from unreasonable searches and seizures or the use of
evidence illegally obtained by the NSA in criminal prosecutions.36
The Fourth Amendment 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.37
The text of the Fourth Amendment enumerates different property items, the enumeration of
which has given rise to a longstanding property-based approach to the Fourth
Amendment.38 As early as 1886, the Court interpreted a search under the
Fourth Amendment as occurring when the government violated a property
interest, such as physical intrusion into the home or review of ones
personal documents.39 While the Court has explicitly refrained from
overruling this trespass theory of the Fourth Amendment, it is no longer
the only controlling doctrine.40
In Katz v. United States, the Court took steps to adopt a privacybased approach to the Fourth Amendment instead
of a formalistic property-based approach.41 In Katz, the majority, led by Justice Stewart, held that the Fourth
Amendment protects people, not just constitutionally protected areas, and accordingly, that a search takes place
where the government violates an individuals privacy.42 The Katz approach that the Court has adopted since
rendering a decision in the case is actually the approach articulated by Justice Harlan in his concurring opinion in
Katz.
43 The often-cited rule as formulated by Harlan, and adopted by the Court,

states that a search occurs when there is an intrusion upon an expectation
of privacy that society is prepared to recognize as reasonable.44
Katz seems to be a reasonable expansion of Fourth Amendment protection on its face; after all, it sought to protect
people as well as property. In attempting to interpret a reasonable expectation of privacy, the Court has faltered. In
Smith v. Maryland, a pen register, which is a device that records the numbers dialed on a phone, was used to
investigate Michael Lee Smith for the purposes of a criminal prosecution.45
Under Katz and its progeny, a person does not have a legitimate expectation of privacy in information voluntarily
disclosed to a third party.46 The Court held that the use of the pen register was not a search within the meaning of
the Fourth Amendment because Smith did not have a reasonable expectation of privacy in the numbers he dialed,
Smith has serious implications in the

digital age.48 The third party doctrine eviscerates Fourth Amendment protection under Katz in the modern
age. Through one decision, the Court brought nearly all modern methods
and modes of communication outside the operation of the Fourth
Amendment.49 Through its holding in Smith v. Maryland, the Court did not
as they were transmitted through a third party.47
just refuse to extend Fourth Amendment protection in one particular

instance or create an exception. Smith made it such that surveillance and
investigation involving collection or review of communications or data that
have passed through an internet service provider, a precondition satisfied anytime the
internet is involved, do not constitute searches.50 As Justice Sotomayor pointed out in her
concurrence in United States v. Jones, the third party doctrine is ill suited to the digital
age, in which people reveal a great deal of information about themselves to third parties in the course of carrying
out mundane tasks.51 Without a reasonable expectation of privacy in the data and communications collected by
the NSA, the alternative source of Fourth Amendment protection is the Courts classic trespass theory. Absent
congressional intervention in the form of legislation vesting property rights in electronic communications and
personal information, the Courts trespass theory fails to provide any protection either.52
Metadata isnt a pen register Smith should not control

Barnett 2015

[*10] In its briefs, the government intimates that the NSA is subjecting the data to computer analysis to reveal
suspicious patterns. n41 But others have defended the retention of this data simply to facilitate future searches of
the federal
government can use it the same way British authorities used papers
seized with general warrants for later perusal to see if they revealed
anything criminal. The NSA data seizures make possible fishing expeditions into the phone calling patterns
of nearly all Americans, except for terrorists, who will now avoid using their phones. n43
If this is the result, then there must be a flaw somewhere in the
constitutional doctrine that produced it. And indeed the fault lies in the
misuse of the "third-party doctrine" as well as in Katz's problematic
concept of the reasonable expectation of privacy.
B. Misapplying Katz and Smith
The key to understanding the flaw in the government's theory is to remember that the Fourth
Amendment was, above all else, the solution to the problem of general or
nonspecific warrants. n44 In Smith v. Maryland, n45 a pen register was placed by the phone company
records pursuant to later investigations. n42 Once in possession of the data, however,
on a particular person about whom there was a reasonable suspicion--though perhaps not probable cause for
seeking a search warrant. n46 Indeed, previous applications of the third party doctrine to business records, such
[*11] as bank records or emails, have concerned investigations of a particular person or company. n47
So the first problem is that Smith v. Maryland is being stretched to cover a

situation that is radically different than the law enforcement practice the
Court was addressing there, and in subsequent cases. Because this
ongoing blanket data seizure of every phone record in the country is
unprecedented, the rationale of Smith cannot automatically be extended
to this situation.
This was the position taken by Judge Richard Leon of the District Court of the District of Columbia in his
opinion finding that the NSA program violated the Fourth Amendment. "The question before me," he wrote, is
not the same question that the Supreme Court confronted in Smith. To say the least, "whether the installation and
a pen register constitutes a 'search' within the meaning of the Fourth Amendment,'-- under the
a far cry from the issue in this
case. n48
use of
circumstances addressed and contemplated in that case-- is
For Judge Leon, the question to be decided today is: When do present-day circumstances --the evolutions in the
government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom
companies--become so thoroughly unlike those considered by the Supreme Court thirty-five years ago that a
precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now. n49
While lower courts are certainly bound to follow Supreme Court

precedent, they are not required to extend general statements made by
the Court in one situation to an entirely different context. Lower courts
are supposed to grapple with applying existing doctrine to new situations,
and this includes identifying the limits of existing doctrine given the
circumstances in which it arose.
The crucial constitutional difference between Smith and all the "thirdparty" business records cases is particularity: the difference between a
general warrant that the Fourth Amendment [*12] was enacted to
prohibit, and a reasonable particularized search or seizure, which is all the
Supreme Court has ever purported to authorize. n50
Court dodges the question using Smith v. Maryland

Crocker and Reitman July 1 2015
(Andrew Crocker, staff attorney on the Electronic Frontier Foundations civil liberties
team, BA and JD from Harvard, formerly worked at Berkman Center for Internet and
Society, the American Civil Liberties Unions Speech, Privacy, and Technology
Project, and the Center for Democracy and Technology, M.F.A. in creative writing
from New York University; Rainey Reitman, director of the activism team at the
Electronic Frontier Foundation, Chief Operating Officer and co-founder of the
Freedom of the Press Foundation, winner of 2013 Hugh M. Hefner First Amendment
Award in Journalism, BA Bard College; https://www.eff.org/deeplinks/2015/07/sameold-fisa-court-thoughts-opinion-extending-mass-surveillance-6-more-months -- JRS)
The court thumbs its nose at the Second Circuits view that bulk telephone metadata surveillance is illegal. In a
landmark decision in May, the U.S. Court of Appeals for the Second Circuit found in ACLU v Clapper that mass
Although appellate court

decisions are usually given significant weight by district courts, the FISA
Court pointed out it isnt obligated to follow the Second Circuits decisions
surveillance of telephone records was never authorized by the Patriot Act.
and criticized reasoning in ACLU v. Clapper. Most troublingly, the court largely doubled down on the wildly expansive
interpretation of the word relevance in Section 215 from previous FISA Court opinions. Although nothing required
it to reach the same conclusion as the Second Circuit, the FISA Courts unnecessary dismissiveness is reminiscent of
some of its one-sided opinions of old. In light of the FISA Courts opinion, the ACLU said it will ask the Second Circuit
for an injunction stopping the program from going back into effect.
The FISA Court also dismissed all

constitutional concerns with the program as it has in the past by
repeatedly citing the same outdated Supreme Court case, Smith v
Maryland, that has been the bane of digital rights advocates for decades .
Third party doctrine trumps constitutional concerns.
This is a case from the 1970s that found that people who use the telephone dont have an expectation of privacy
because they are sharing the fact that they are making a phone call with the telephone company itself, and thus
the government has a right to access data about what phone calls are made and to whom without a judge-issued
the Second Circuit found that the program wasnt authorized by the Patriot Act,
did not reach the constitutional issue, but it indicated there were
significant constitutional concerns. Even so, were hopeful that in one of the
pending lawsuits challenging the program, including EFFs case Smith v. Obama, ACLU v. Clapper, or
Klayman v. Obama, a circuit court will disagree with the FISA Court and issue a
ruling soon holding that the program is in fact unconstitutional.
search warrant. Because
it
AT Katz and Smith

Katz and Smith shouldnt apply to metadata
Barnett 2015

But there is a big difference between what happened in Smith and what the
NSA orders are doing. In Smith, a robbery victim had described to the police both her attacker and a 1975 Monte
Carlo she saw near the scene of the robbery. n30 Afterward, she began receiving threatening and obscene phone calls from a man
who said he was the robber. n31 During one phone call, the man asked her to step out onto her front porch, where she saw the 1975
Monte Carlo moving slowly past her home. n32 Later, the police spotted a man who met the victim's description of [*9] her
attacker driving a 1975 Monte Carlo in her neighborhood. n33 By tracing the license plate number, police learned that the car was
registered in the name of petitioner, Michael Lee Smith. n34 They then asked the phone company to install a pen register at its
central offices to record the numbers dialed from the telephone at his home. n35 Although the police did not obtain a warrant, hey
certainly had a reasonable suspicion that Mr. Smith had engaged in illegal activity. n36
If the constitutionality of the NSA's bulk data seizure programs is to be

justified as akin to a pen register under Smith, however, then these programs
amount to installing a pen register on every American without any
suspicion that a person, whose phone activities are now stored on the NSA's supercomputers, has done
anything wrong. n37 In essence, every American is to be treated the way Michael Lee Smith was treated in Smith v.
Maryland. n38 But unlike the pen register on his phone line that lasted just a few
days, each of us would have pen registers on our phone every day for the
rest of our lives.
In the old days, the government had to go to the third party to request the pen register be installed, n39 which preserved
a record of what it was doing. Moreover, had it tried to collect such information on everyone, the very massiveness
of such a data trove would have itself prevented the government from
storing it or doing much of anything else with it. Today, however,
enormous quantities of data can be kept digitally in huge NSA facilities. n40
Plan is consistent with Katz metadata has an expectation of

privacy similar to the closed door of the phone booth
Barnett 2015

C. Reconsidering Katz
when this case does get back to the Supreme Court--as I hope it will if Congress
Court should also reconsider the
"reasonable expectation of privacy" concept of Katz. As Justice Alito observed two
But
does not alter the practice as it recently failed to do n51-- the
terms ago in his concurring opinion in the GPS tracker case of United States v. Jones, n52 the "Katz expectation-ofprivacy test... involves a degree of circularity, and judges are apt to confuse their own expectations of privacy with
those of the hypothetical reasonable person to which the Katz test looks." n53 In addition, "the Katz test rests on
the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy
expectations." n54
the "reasonable expectations" language that now

dominates the academic literature and case law actually appears, not in
the majority opinion of the Court in Katz, but in a solo-concurrence by Justice
Harlan. n55 In contrast with Justice Harlan's concurrence, Justice Stewart's majority
opinion in Katz properly rested on the physical protection that the defendant
had given to his oral communications when he stepped into a phone booth
and closed the door. n56 "What a person knowingly exposes to the public," he wrote "even in his
own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as
private, even in an area accessible to the public, may be constitutionally
protected." n57 What Katz "sought to exclude when he entered the booth,"
Justice Stewart continued, was not the intruding eye--it was the uninvited ear. He
did not shed his right to do so simply because he made his calls from a
place where he might be seen. No less than an individual in a business office, in a friend's
We should all remember that
apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment.
One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled
to assume that the words he utters into the mouthpiece will not be broadcast to the world. n58
Rather than airy and untethered judicial speculations about "reasonable

expectations," the courts should return to the traditional--and more
readily administrable--property and contract rights focus of Fourth
Amendment protection that was reflected in the majority opinion in Katz.
Courts should examine how people employ devices that function like the
walls of the home, or the phone booth in Katz, to conceal digital
information and preserve their privacy. An inquiry into the physical and
legal barriers people have placed around their information, for example, by
using passwords to restrict access to their email, or entering into terms of service contracts with third parties
that include privacy protections, can generally answer whether they have held it close, and
establish the threshold of personal security that the Fourth Amendment
requires a warrant to cross. No distinction should be made between
sealing a letter before handing it to the postman, taking a phone call in a
secluded phone booth, password-protecting one's email, or selecting a
communications company with a privacy policy.
In short, the "reasonable expectation of privacy" test reverses the inquiry
required by the Fourth Amendment. For good reason, the Fourth Amendment
uses a possessive pronoun--"their"--to describe the "persons, houses,
papers, and effects" it protects. People's ownership of themselves and
their things is an essential counterweight to state power. And by availing
themselves of the law of property and contract, people create their own
zones of privacy. In short, first comes property and contract, then comes privacy. With this in mind, let us
return to Katz.
Plan is consistent with US v Jones, which extended the Katz

protections
Barnett 2015

the physical and legal barriers people place around their
information define both their actual and "reasonable" expectations of
privacy and should provide the doctrinal touch-stone of the search
warrant requirement. Two terms ago in United States v. Jones, the Supreme
Court took an important step in this direction when it held that the
"reasonable expectation of privacy" formulation from Katz does not
supplant the protection of one's property from unreasonable searches, but
instead adds additional protections to these. n59 "[T]he Katz reasonableexpectation-of-privacy test," wrote Justice Scalia, "has been added to, not
substituted for, the common-law trespassory test." n60
In reality,
Katz is unworkable SCOTUS justices are privileged and have

no clue what society considers reasonable (this also says
Smith v. Maryland should be overruled)
Blass 2015
IV. A Trespass Approach to the Fourth Amendment is Preferable to Katz and Any Attempts to Reform a Privacy Based
Criticism of the third party doctrine among scholars

and legal practitioners is nothing new.112 Since the original revelation of the governments
Theory of the Fourth Amendment
warrantless wiretapping programs there has been a flurry of scholarship declaring the end of privacy and examining
Privacy theory and jurisprudence is en

vogue right now, but it will never provide as satisfactory of a solution to
what ails the Fourth Amendment as a trespass theory.114 This is because the
Katz doctrine was not a workable standard to begin with.115 The only way
that Katz, a judicially created standard, can be rehabilitated, is if the
Court, of its own volition, chooses to explicitly or implicitly overturn precedent
such as Smith v. Maryland.
116 To square the reasonable expectations of privacy in various scenarios
with the publics actual expectations of privacy in the digital age would
require the Court to hear and decide many cases, some of which have not
even begun to wind their way through the courts, and could never wind
their way through the courts at the same rate of ever-evolving technology.
Ultimately, Katz should not be rehabilitated because it was not a workable
doctrine to begin with.
First, the Court is in a poor position to determine what privacy
expectations society is prepared to recognize as legitimate .117 Progress has been
reasonable expectations of privacy under Katz.113
made in diversifying the bench, but Supreme Court justices still come from a particularly privileged segment of
society and apply precedent crafted over hundreds of years by an even less diverse bench.118
Of the
current justices, all nine attended Ivy League law schools, primarily
Harvard and Yale.119 The continued existence of an Ivy League track to
the judiciary ensures that the justices are not from backgrounds or
currently in positions that allow them to truly understand what the public
and everyday Americans, Justice Harlans society, consider reasonable.120 Additionally,
the method of determining a reasonable expectation of privacy is subject to wide variation depending on the
methodology used to calculate it.121 The NSA mass surveillance programs are now public knowledge, so it would
be technically unreasonable for the public to maintain a reasonable expectation of privacy in their personal data
and electronic communications. Clearly, applying the standard in that way would result in an untenable and absurd
result. Nonetheless, that is the very logic that animates the Courts original collapsing of the concepts of secrecy
and privacy in Smith v. Maryland. 122
Numbers dialed are content and theyre private under Katz

-- Justice Stewarts Smith v Maryland dissent explains
Barnett 2015

Justice Stewart, the author of Katz, actually
dissented in Smith v. Maryland. "I think that the numbers dialed from a
private telephone--like the conversations that occur during a call," he
wrote, are within the constitutional protection recognized in Katz. It
seems clear to me that information obtained by pen register surveillance
of a private telephone is information in which the telephone subscriber
has a legitimate expectation of privacy. The information captured by such
surveillance emanates from private conduct within a person's home or
office--locations that without question are entitled to Fourth and
Fourteenth Amendment protection. Further, that information is an integral
part of the telephonic communication that, under Katz, is entitled to
constitutional protection, whether or not it is captured by a trespass into such an area. n65
Presciently for purposes of analyzing the significance of installing pen registers for
everyone, he added,
The numbers dialed from a private telephone--although certainly more prosaic than the
conversation itself--are not with-out "content." Most private telephone subscribers may have their
own numbers listed in a publicly distributed directory, but I doubt there are any who would be
happy to have broad-cast to the world a list of the local or long distance
numbers they have called. This is not because such a list might in some
sense be incriminating, but because it easily could reveal the identities of
the persons and the places called, and thus reveal the most intimate
details of a person's life. n66
Indeed, it is useful to remember that
When one has arranged one's affairs using physics, or the laws of property
and contract, to conceal information from preying eyes, government
agents may not use surreptitious means or novel technologies like thermal
imaging to defeat those arrangements without obtaining a warrant that conforms to the requirement of the Fourth
the Court was correct in the 2001 case of Kyllo v. United

to hold that police officers conducted a search when they used
Amendment. n67 For this reason,

States n68
[*16] a thermal-imaging device to detect heat emanating from a private

home, even though they committed no trespass. n69
Putting oneself behind closed doors creates a zone of privacy into which
the police ought not intrude without a warrant . As Justice Kagan explained last year in her
concurring opinion in Florida v. Jardines, n70 which involved the use of a drug sniffing dog, "[i]t is not surprising that
The law of
property 'naturally enough influence[s]' our 'shared social expectations' of
what places should be free from governmental incursions." n71
Smith v. Maryland need not be reversed to distinguish its application
in a case involving a search of a home, property concepts and privacy concepts should so align.
from the radically different practice of installing pen registers for

everyone. Whereas Smith concerned a particularized search that may well be "reasonable" under the Fourth
Amendment, the NSA bulk-data seizure program is the modern-day equivalent
of the general warrant that strikes at the very heart of the Fourth
Amendment's requirement of particularity. Both the third-party doctrine of
Smith and the "reasonable expectation of privacy" approach of Katz need
to be adapted to modern circumstances.
CP answers
Congressional oversight fails the executive branch lies to
Congress
Setty, 2015
The extent of congressional knowledge regarding the NSA Metadata Program is not fully known to the public and
has been the subject of significant debate. Nonetheless ,
even assuming that Congress was

sufficiently informed as to the potential reach of the PATRIOT Act with regard to
surveillance n59 and, therefore, that the statutory authority for the bulk data collection and storage was
sound, the ability of Congress to effect significant and meaningful ex post
oversight appears to be severely limited.
Historically, congressional hearings and investigations have been a powerful tool to rein in executive branch
the extreme secrecy surrounding the NSA

surveillance programs undermined the efficacy of these oversight powers, to the
point that they may have been reduced to an ersatz form of accountability .
One prominent example stems from a Senate oversight hearing on March 12, 2013, in which Senator Ron
Wyden specifically asked Director of National Intelligence James Clapper if
the NSA was systematically gathering information on the communications
of millions of Americans. n61 Clapper denied this, yet subsequent
revelations confirmed that the broad scope of the data collection included
metadata for telephonic communications, as well as content data for
emails, texts, and other such writings. n62 After public discussion of the
discrepancy in his testimony, Clapper commented that he gave the "least
most untruthful" answer possible under the circumstances . n63 Senator Wyden
expressed disappointment and frustration that even while under oath at an oversight
hearing, Clapper misled the Senate. n64
The ability for congressional oversight is further hampered by a general lack of
access to information about the details of the NSA Metadata Program n65 and lack of ability to
discuss publicly whatever knowledge is shared with Congress . n66 In fact, it
remains unclear whether senators, including Dianne Feinstein, Chair of the Senate Intelligence
Committee, knew of the lapses in NSA procedure until after such information
was leaked to news sources. n67 Further revelations indicate that administration
statements made to Congress even after the Snowden disclosures were
not entirely accurate. n68 These examples are not determinative, but taken together, they
raise significant doubt to the extent of accurate information regarding
surveillance programs being made available to congressional oversight
committees, and whether the oversight committees can function as effective
accountability measures n69 without the benefit of illegally leaked information such as the Snowden
overreaching. n60 However, it seems that
disclosures.
FISC cant solve need external review

Setty, 2015
The FISC differs from Article III courts in numerous ways: Its statutory scope is limited to
matters of foreign intelligence gathering; its judges are appointed in the sole discretion
of the Chief Justice of the United States Supreme Court; its proceedings are
secret; its opinions are often secret or are published in heavily [*83] redacted form; and its
process is not adversarial as only government lawyers make arguments
defending the legality of the surveillance being contemplated. n70 Many of these
differences bring into doubt the legitimacy of the court, its ability to
afford adequate due process regarding civil liberties concerns, and its ability to uphold the
rule of law in terms of government accountability. Compounding this legitimacy deficit is
the FISC's own loosening of the relevance standard under Section 215 of the PATRIOT
Act such that the FISC has found that bulk data collection without any
particularized threat or connection to terrorism is legally permissible. n71
Historically, the FISC has rejected NSA surveillance applications too infrequently
to be considered a substantial check on government overreach as an ex ante
matter. n72 As an ex post matter, it is unclear to what extent the FISC's work guarantees any meaningful
accountability over NSA surveillance activities. On the one hand, because the FISC lacks an adversarial process and
has no independent investigatory authority, the FISC only addresses ex post compliance problems when the
FISC judges rely on the

statements of the government as to the government's own behavior and
lack the authority to investigate the veracity of the government's representations. n74 For
government itself brings the problem to the court's attention. n73 As such,
example, in 2011, the FISC found one aspect of the surveillance program - brought to its attention months after the
program went into effect n75 - to be unconstitutional. n76 Additionally, in one declassified opinion, the FISC
critiques the NSA's sloppy over-collection of metadata of U.S. communications, and questions the efficacy of bulk
data collection as a national security measure. n77
At one point, the FISC sanctioned the
NSA for overreaching in
[*84] saving all metadata and running daily metadata against an "alert list" of
approximately 17,800 phone numbers, only 10% of which had met FISC's legal standard for reasonable suspicion.
On such occasions, the administration has modified problematic

aspects of the surveillance and continued forward without further impediment by the FISC. n79
n78
On the other hand, the fact that the NSA itself has brought potential compliance incidents to the notice of the FISC
this is hardly an effective

substitute for external review and accountability mechanisms that would ensure that
n80 indicates at least some internal policing of these programs. However,
consistent controls are in place. Further, the self-reporting of these compliance incidents does not in any way allow
for discourse over the larger structural questions surrounding the surveillance programs.
FISC oversight fails lack of information and fear of being

blamed for terrorist attack
Setty, 2015
the ability of the FISC to act as an effective check on NSA
overreaching is severely limited by the secrecy and lack of information
available to the FISC judges. Judge Reggie B. Walton, formerly the Chief Judge of the
FISC, lamented that "the FISC is forced to rely upon the accuracy of the
information that is provided to the Court ... . The FISC does not have the
capacity to investigate issues of noncompliance ... ." n81 The ability of the NSA to not
Finally,
only gather and retain bulk metadata, but also to build in backdoor access into data files despite private encryption
efforts has been largely sanctioned by the FISC based on NSA representations as to the seriousness of the security
there is a tremendous fear of being

held responsible for any future terrorist attack that might occur on U.S. soil, n83 and in
which there is a information deficit for those outside of the intelligence
community, the FISC has consistently deferred to the NSA's assertions and
has not been able to act as an effective accountability mechanism.
threats posed to the nation. n82 In an environment in which
Congress wont solve lack of public pressure and inside

information
Setty, 2015
Although Congress could launch a large-scale investigation into the programs Snowden disclosed, like the
Church Committee in its time, n176 its ability to serve effectively as an ongoing accountability
mechanism over intelligence gathering in the manner of a parliament seems unlikely.
For the political and structural reasons discussed above, the apparatus of national security policymaking is somewhat intentionally insulated from Congress . On the one hand, the
benefit of this structural arrangement is that it may facilitate expertise and efficient decision-making, but a key
effect is also that this apparatus is not really accessible to the other branches of government or the public. n177
This consolidation of decision-making authority in the executive branch , plus

the difference between congressional and parliamentary access to executive branch information, accounts for a
different potential for legislative oversight in the United States as compared to the United Kingdom and India.
lack of widespread and sustained public pressure [*100] on

Congress n178 toward reform suggests that a meaningful increase in
legislative oversight of the intelligence community will not occur in the
near future.
Further, the
AT CP with internal NSA reform cant solve, just looks like it

could solve
Setty, 2015
Leaks like that of Snowden, combined with rigorous and responsible press coverage, can provide some level of
constraint on and accountability over intelligence community activity. n179 However, the tendency toward public
inertia and the possibility that democratic institutions will not actually provide a substantive check on the
surveillance apparatus n180 suggest weakness in relying solely on this approach. Further, the crackdown on leaking
and the treatment of whistleblowers as criminals, even prior to Snowden's disclosures, n181 combined with
heightened security measures, means that reliance on leaking as a meaningful structural check is misplaced.
Tinkering with the structure inside of the NSA also seems to achieve more in
terms of burnishing a veneer of accountability rather than creating
genuine oversight. It is hard to understand how various proposed reforms, such as
appointing a civilian to oversee the NSA n182 or creating a more
adversarial internal review process within the NSA, n183 would increase
accountability and transparency. For the executive branch, it seems more likely that
pressure from business and corporate interests trying to retain consumer business n184
may shape NSA parameters for mass data collection and domestic surveillance in some respects,
n185 but will likely not lead to institutional or structural changes as to the
government's approach to surveillance without additional pressure from
the public.
1st Amendment
SQ already chilling journalism

Review; 42 Pepp. L. Rev. 517 JRS) (**Fourth Estate is another term for the
press/media)
That different framing should make a difference in standing analysis . As the plaintiffs
reactions in Clapper demonstrate, political participation can be compromised by
legitimate fears concerning covert surveillance.121 Even more significantly, the
Fourth Estate, crucial to maintaining a vibrant democracy, has been
affected by the governments surveillance practices. A 2013 survey of
journalists and other writers found that, in the wake of Snowdens
disclosures, 24% have deliberately avoided certain topics in phone or
email conversations.122 A more recent report, based on a survey of forty-six journalists
and forty-two lawyers, concluded that journalists and their sources, as well as
lawyers and their clients, are changing their behavior in ways that
undermine basic rights and corrode democratic processes. 123 This report noted
that [s]everal journalists likened the current reporting atmosphere to what
one might find in more authoritarian countries. 124
1st amendment should provide standing for surveillance cases


A similar rule might be derived from the First Amendments language stating that
freedom of speech and association should not be abridg[ed]. 107 To
abridge means to lessen the strength or effect of.108 As many scholars have noted,
surveillance has precisely that effect on communication and related
activities.109 Professor Neil Richards has recently argued, for instance, that the fear of being
watched causes people to act and think differently from the way they
might otherwise.110 A considerable empirical literature backs up the claim
that panvasive surveillance leads individuals to make choices that
conform to mainstream expectations.111 Because unconstrained surveillance
can lead to self-censorship, in terms of speech, action, or even belief,
Richards contends that people should have standing to challenge this type of surveillance on First Amendment
grounds.112 Although Richards does not go into any detail about the specifics of this standing proposal, the above
Fourth Amendment formulation might work just as well in the First Amendment context. The arguments from
Professors Milligan and Richards are the beginning of a rejoinder to the Courts decision in Clapper. But one might
still ask how their arguments are, at bottom, any different from the chilling argument rejected by the Court in
Clapper and Laird. Without further elaboration, they are not. What is needed is an explanation of why unregulated
surveillance undermines the political system that standing doctrine ostensibly is meant to preserve.

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1AC

Contention One Youre being

(Ted, editor of Sovereign Investors Offshore Confidential and Plan B Club,

For example, we were trying to get African

You can't let your guard down now, I'm afraid.

Federal domestic surveillance is running rampant

SQ laws allow federal domestic surveillance without any

in the absence of Fourth Amendment requirements including probable

Theres no solution in sight: the district court in Klayman ruled

District courts are split

SCOTUS review is inevitable

the constitutionality of some of the NSA's practices," Mark Rumold, an

Contention Two The End Of

This information grab reverses the fundamental premise of

(Randy, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law

accountant, subscriber information provided to an internet service

Unrestrained security apparatus threatens permanent loss of

NSA surveillance creates a dangerous potential for tyranny

Urgent court action key to stop democracys extinction

Insert privacy and tyranny impacts

Contention Three Executive

These phenomena have led to a breakdown of limitations for government officials

Giving in to secrecy means unchecked executive power

SQ surveillance chills congressional oversight of the executive

(Christopher, Milton Underwood Professor of Law, Vanderbilt University Law School,

been similarly constrained.128 Glenn Greenwald summarized the impact of

Insert presidential powers bad impacts

Plan: the Supreme Court of the

Contention Four the plan solves

government's authority to reach metadata of persons and merchants

Historical and textual analysis supports the plan

Plan key to accountable democracy

(Randy, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law

Fourth amendment protection is the last chance

Judicial hard power solves

The executive and legislative branches cant solve they dont

to be equipped to consider concerns stemming from intelligence community

On June 23, 1975,

In sum, the ultimate threat lay in the inability of citizens to participate in

The exercise of political freedom depends in large measure on citizens

Panvasive surveillance risks tyranny

(Christopher, Milton Underwood Professor of Law, Vanderbilt University Law School,

The greater the importance of safeguarding the community from

This state of affairs

governmental powers, because it diminishes the vitality of the legislative

Strong and independent judiciary key to SOP and freedom

War powers justification threatens civil liberties indefinitely

(Randy, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law

We can identify two

The war model assumes that government is using its

AT SQ solves surveillance still

from the perspective of

Ordinarily, the government needs a warrant before collecting the content

United States, what could possibly be the constitutional objection?

Although the government is

More than 300 federal statutes authorize domestic surveillance

Americans do not and cannot trust government to be benevolent nor

people in positions of responsibility

neutral judges and probable cause, government agencies may obtain

These documents are celebrated as monuments of freedom because they place

Section 215 is a drop in the bucket SQ data collection still

(Stephen, Professor of Law at American University Washington College of Law,

the governments minimization

whereas the Section 215 debate has addressed whether