The Parable of Progress: NSA Spying, Data Privacy, and the Fourth Amendment
A Video by Ashley E. Dymond Available at http://youtu.be/HYCUF-vOlGc
Ashley E. Dymond, a UC Hastings Law 3L, is senior executive editor of the Hastings International and Comparative Law Review. Passionate about international law and its intersection with emerging technology, she works on related projects, including San Francisco’s first Legal Tech Startup Weekend.
Ms. Dymond writes: “The NSA is indiscriminately spying and capturing metadata on millions of American citizens. There is relatively little publicly expressed concern about the ways new communication technologies are altering the amount of content people reveal on a daily basis. The Fourth Amendment’s interpretation needs to be updated to protect citizens’ rights to privacy in the twenty-first century. This video has been made to raise awareness about the need to update laws regulating government spying and address the law’s implications for U.S. citizens operating new, smart-device technologies.”
NSA Activities Trespass Third Amendment Rights
By William Bessmer
William Bessmer is a first-year student at Widener University School of Law in Wilmington, Delaware. He is also enrolled in a Master’s of Marine Policy program at the University of Delaware, where he is focusing on offshore renewable energy policy. He hopes to combine these educational experiences to pursue a future in energy law.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. —U.S. Const. amend. III
The U.S. government, through its National Security Agency (NSA) programs, has, as disclosed by Mr. Snowden, violated the U.S. Constitution. When analyzing NSA programs such as XKEYSCORE, MUSCULAR, or PRISM, invoking the First and Fourth Amendments is reason to modify the current iteration of cyberspying. An aspect yet unconsidered is the assertion that the U.S. government has additionally trespassed against the Third Amendment by stationing a perpetual warrantless government presence in people’s residences without consent or demonstrable warrant. There are very few successful Supreme Court challenges based on the Third Amendment, as many are spurious. What little relevant case law there is offers a compelling argument that the NSA is indeed being quartered in citizen’s houses.
The original intent of this amendment was to prohibit the physical intrusion of armed, government-funded personnel into the private space of citizens. The specific eighteenth-century incidents that inspired the drafting of the Bill of Rights are not to be read as the sole examples of matters meriting constitutional protection. Rather, the Amendment was meant to be partially dynamic with culture and technology. The American forefathers did not foresee the invention of the telephone, security camera, or the preponderance of hi-tech gadgetry that would become indispensable staples of successful participation in American culture, but the First and Fourth Amendments had to be adapted to accommodate those new technologies. Until recently, there were very few instances of soldiers being pushed into the domiciles of American citizens and, thus, there was no need to invoke the Third Amendment.
In Custer County Auction Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001), petitioners claimed that the occupation of airspace immediately above their property was quartering military aircraft. The court found that legal use of airspace was too dissimilar to the actual quartering of soldiers in a domicile. In Johnson v. United States, 208 F.R.D. 148 (W.D. Tex. 2001), plaintiffs argued that toxic chemicals intruding from a nearby military base were an extension of the military and that they were invading and occupying the petitioner’s land. The court lacked jurisdiction to rule on the case. The general pattern of argument made in these two examples is that an inorganic extension of the military is regularly moving into or around property owned by private citizens. A strict reading of the Third Amendment would seem to imply that a more organic extension of the military, not simply materials of military origin, is necessary to breach Third Amendment rights. This begs the question: is software alteration planted into the homes of private citizens, which has the effect of placing eyes and ears to be later mentally synthesized by a remote military officer, enough to trigger the Third Amendment?
“No Soldier Shall . . . Be Quartered”
Are NSA operatives soldiers? The NSA operates under the jurisdiction of the Department of Defense and reports to the director of National Intelligence. The NSA director is a high-rank military official who also serves as commander of the U.S. Cyber Command. The NSA is an extension of the military and those charged with tasks under that hierarchy are acting as agents of a military structure and can be reasonably called military personnel, if not given the specific moniker of “soldier.” In Engblom v. Carey, 677 F.2d 957 (2d Cir. 1983), it was held that military reservists are “soldiers” and that those agents of the state or federal government can be considered so as well. Engblom v. Carey also indicated that tenancy, not necessarily home ownership, is sufficient to plead the Third Amendment.
Does an entire soldier have to be present in a person’s residence to invoke this amendment? Does a soldier have to be physically present in a person’s residence? Current technology offers us the ability to put the visual, audial, and tactile sensory apparatus of the military into our homes, workplaces, and pockets. The data from the GPS in our cellphones, a tool used to find a detour or our way around in a new destination, are collected, decrypted, and stored in a government data center, an act that would have required corporeal agents to have compelling reason enough to either file a warrant or physically tail a person. A diversionary app, Angry Birds, can be tapped to report the entire contents of a person’s electronic communications. Taken in aggregate, the data that the NSA collects are far more intimate than what an investigating officer on a police case would be able to access legally. The NSA’s eyes, ears, and minds are telephonically broadcast into the most common electronic products in use in America to gather information that only an invited guest or a quartered sentry would be privy to. With current development of teledildonics, the NSA will have digitalized tactile information of citizens’ erogenous zones, should those targets send the information via the Internet to an intimate partner. It is in this regard, with the ability to use household electronic appliances to collect private sensory information without permission, that the military is quartered in our homes and lives. The substantive irrevocability of this government intrusion and its sustained effort to further intrude is thematically parallel to “quartering” a corporeal federal agent in one’s home.
The psychology of the British Quartering Act of 1774 and NSA activities is the same: maintain order through personal intrusion. The NSA’s activities are substantively no different than being forced to live with a redcoat in your house. Reports of individual NSA staff can even mirror the abuses perpetrated by less professional redcoat soldiers: i.e., stalking romantic interests or theft of materials considered private property. When the Coercive Acts were passed, physically quartered soldiers used the heat and food of private citizens, a fact that compounded the injustice of sharing private residence with a stranger. The NSA dragnet spying activities are fueled by electricity and shelter provided by the consumer of broadband information technology, and albeit a minor drag in resources compared to food sustenance, these particulars of occupation are nonetheless extant.
“In Time of Peace”
The United States has not formally declared war since World War II, although congressional drafts for the “use of force” are claimed to operate to the same degree, as the Constitution has no prescription for how a “declaration of war” would be worded. The “Authorization for Use of Military Force Against Terrorists” (50 U.S.C. § 1541 note (2001))(AUMF) is the primary justification for warrantless searching of citizens. Unique among U.S. war declarations, the AUMF has been criticized as an interminable breach of the War Powers Clause of the Constitution, as it indulges the commander in chief to execute military commitments without a specified act of Congress. This declaration of “war against terrorism,” in its brief text, is a generously vague empowerment for the president to use force against a shifting terrorist target comprised of “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” AUMF § 2(a).
“In Time of War, but in a Manner to Be Prescribed by Law”
Assuming the AUMF is the justification for the Foreign Intelligence Surveillance Act’s sanctioned cyberstalking of U.S. citizens, a strict reading of the Third Amendment would seem to infer that the U.S. government is acting within constitutional bounds. See Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. ch. 36. However, the NSA programs, as enacted, breach the First and Fourth Amendments and thus additionally poach the Third. The NSA is not behaving in a manner prescribed by law.
In Katz v. United States, 389 U.S. 347 (1967), a precedent was set for Fourth Amendment rights that induce the courts to consider matters of privacy in terms of reasonable expectations thereof. A man in a glass-sealed phone booth has a reasonable expectation of privacy. This was watershed case law, as previous Fourth Amendment claims tended to revolve around property, not around an individual’s right to privacy. Wearing spectacles or using binoculars or a flashlight, all technological sensory enhancers, are not breaches of the Fourth Amendment. In Kyllo v. United States, 533 U.S. 27 (2001), the use of thermal imaging to search is a breach. What substantive difference is there between being spied upon in a private residence through the technology used in Kyllo and what the NSA employs use to collect data through PRISM?
The Third Amendment exhibits a similar penumbral glimpse at a right to privacy. In fact, Justice William O. Douglas cited the Third Amendment in Griswold v. Connecticut, 381 U.S. 479, 484 (1965), as implying a belief that an individual’s home should be free from agents of the state. Compared to the Fourth Amendment right to be free of warrantless searches and seizures, a right extended to individual citizens, the Third Amendment has a necessary geographical component in that the protection extends to a residence, regardless of the individual that resides there.
The ruling of the National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449, 450 (1958), contends that the right to freedom of association is a component of First and Fourteenth Amendment rights. Other than refusing to use Internet-accessible devices, a citizen cannot opt to not associate with the U.S. government’s NSA operatives. The freedom to not associate is abridged, as the dominant paradigmatic expectation of the NSA is that the average citizen condones the association with governmental entities through his or her ties as clientele to corporations, where the exact opposite should be presumed true, considering the sensitive nature of data stored digitally with businesses. The gag orders served to Internet access providers to turn over clients’ data further indicts the government as cognizant of the fact that, given choice, people would opt not to be spied on in their private residences and to be able to simply make an honest exertion of their fundamental right to associate with whom they please.
Additionally, the NSA has issued 1,000 pages of documents that demonstrate that it routinely oversteps a number of limitations set in place by the FISA court to curb exploitation of the First and Fourth Amendments. See Barton Gellman, NSA Broke Privacy Rules Thousands of Times Per Year, Audit Finds, Wash. Post., Aug. 15, 2013, at http://wapo.st/1cR57dW. In ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007), the court declared that “. . . the plaintiffs do not—and because of the State Secrets Doctrine cannot—produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a ‘well founded belief . . . .’” If Mr. Snowden’s leaks were known to the ACLU at the time this case was decided, the court would have reached a far different conclusion, as bulk collection did target the ACLU.
“Without Consent of the Owner”
Through NSA programs, no physical military presence is necessary to occupy a resident citizen’s space; rather the citizens’ own tools (telephone, broadband connection, GPS) are drafted into reconnaissance for the government through buying access through Internet carriers, installing software on corporate devices, or simply hacking tech companies. In the aggregate, when private citizens work together in an agency or corporation, the violation of the constitutional right becomes clear.
The Dictionary Act, 1 U.S.C. § 1, states, “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), was a ruling that could “not be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose,” demonstrably guaranteeing that corporations do have a right to free speech. As of this writing, Sebelius v. Hobby Lobby Stores, Inc., 723 F.3d 1114 (10th Cir. 2013), was poised to result in an assurance of religious rights to corporate persons that is equal to those of individual citizens, as the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., provides that the government “shall not substantially burden a person’s exercise of religion.” In Hale v. Henkel, 201 U.S. 43 (1906), the Court held that a corporation possesses some protection from unreasonable searches and seizures. It stands to reason, then, that corporations enjoy the right to Third Amendment protections.
Some Supreme Court cases have held that you have no reasonable expectation of privacy in information you have “knowingly exposed” to a third party—for example, bank records or records of telephone numbers you have dialed—even if you intended for that third party to keep the information secret. VISA was hacked and its financial data were viewed and stored by the NSA, despite it having a reasonable expectation that the same information is available through legal means. In the NSA’s project MUSCULAR, an unnamed source with access to the data backbones of both Google and Yahoo were paid to access the unencrypted data moved between server properties. These companies were unaware of this and had a reasonable expectation of privacy (seeing as how they chose to not encrypt the data in between the two server properties) that was not “shared” by any definition of the law by the service provider that served the fiber optics. A military paid asset was, therefore, entrenched on private property, “photocopying” data to send to NSA agents to process. Military minds using military assets quartered on a legal entity’s property to collect digitalized sensory information: a clear constitutional statutory prohibition ignored.
The Tailored Access Operation (TAO) is an NSA hacking unit that imparts spy and malware to target computers, going so far as to intercept Windows error reports to find the weakest point of software attack. In a very demonstrable way, the NSA has planted corrupt code, an electronic footprint that coerces one’s electronic belongings to spy on you, undermining any meaningful expectation of privacy in the home.
Consenting to broadband use is not consenting to a warrantless search. Consenting to cellphone use in one’s residence is not consenting to allow military eyes and ears to record, save, and ponder one’s phone call. Buying an easily infected computer with a webcamera is not a permission slip to be recorded in one’s home by the government.
There is a redcoat stationed in my house.
The Google doc upon which this article was written has been copied and stashed in a government digital warehouse without express permission to do so. This author’s websearches over the last 24 hours have included an online Koran, known terrorist groups, and 16 different articles about the NSA published by Al Jazeera. This author used a proxy to email it to the ABA through a Pakistani server. All of those who open the file upon which this is written will be tracked as part of my web of association. Should there be a myopic political surge akin to McCarthyism in our near future, the protests of the abridgment of our shared civil rights can be recalled by government sources and utilized against this author and may be used to bar future government work. Worse, it can (and may) be used to indict our patriotism or besmirch our characters.
The act of receiving this communication has stationed a redcoat in your house, too.