I was reading the New York Times Article “In Secret, Court Vastly Broadens Powers of N.S.A.” by Eric Lichtblau.  This article was written generally about the secret law that has been created by the FISA court.  It also touches on how that law has expanded in gross numbers of decisions and substantive theories that underly these new decisions.  This article was written based on information received from “current and former officials familiar with the court’s classified decisions.”

Mr. Lichtblau’s article discusses the “special needs” doctrine and its application to terrorism cases.  He points out that the “special needs” doctrine has been used by the Courts to find “that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger.”  Mr. Lichtblau then writes that this doctrine has been used more broadly to track the communications of American citizens based on the need to combat terrorism.  Mr. Lichtblau writes that his source contends this tracking “does not run afoul of the fourth amendment.”  Mr. Lichtblau further states that the reasoning used in terrorism cases has been used in cases involving other potential threats so long as they fit under the enlarged definition of “foreign intelligence.”

Mr. Lichtblau then writes that the metadata that is captured by the government has been treated unworthy of 4th amendment protection.  However, the government needs to have some sort of specific information about a threat in order to search the data it has collected.

Orin Kerr wrote a thoughtful post on this article on the Volokh Conspiracy entitled “Hints and Questions About the Secret Fourth Amendment Rulings of the FISA Court.”  His article raises some questions about the New York Times aricle.  Mr. Kerr is not surprised that the “special needs” doctrine has been used as public courts have already found that the “special needs” doctrine can be properly invoked with terrorism as its justification.  Furthermore, Mr. Kerr does not know what to take away from the article.  He wonders whether Mr. “Lichtblau [is] just saying that the metadata collection is outside the Fourth Amendment but that obtaining contents is protected (but covered by the special needs doctrine, requiring some cause but not a warrant)? Or is Lichtblau saying that accessing even just the metadata database is some kind of search requiring justification?”

This is a very important question.  It is  not answered in the New York Times article and without access to the secret FISA court decisions it is unlikely that anyone could reasonably divine what has developed behind locked doors.  I will attempt to add a further wrinkle to the question and posit a hypothesis.

To first understand this question one needs to examine what the “special needs” exception is not.  This exception, as applied, does not mean that a search has not taken place under the 4th amendment.  Cassidy v. Chertoff, 471 F.3d 67 (2nd Cir. 2006) discusses, in some detail, the special needs exception and its application in general to 4th amendment jurisprudence.  What we learn is that a person can have a reasonable expectation of privacy in the items the government wants to search.  However, the “special needs” exception can result in a finding that the search was reasonable under the circumstances. Thus, there is no 4th amendment violation despite a reasonable expectation of privacy.

However, as Orin Kerr dutifully points out, the devil is in the details when discussing 4th amendment cases.  The case I cited above applies to searches of a person and of their luggage.  When looking at the search of phony metadata there are other requirements at play than just the 4th amendment.  18 USC § 3121-3127 adds the further dimension that a tap and trace must be relevant to an ongoing criminal investigation amongst other requirements.*

Perhaps in order to satisfy this statute the FISA courts have adopted a standard that must be met by the government before collecting phony metadata.  It is also as equally plausible that the FISA court has found that the obtaining of the metadata is subject to the special needs exception and the tap and trace statute is only applied once the government wants to search the information it has collected.

So why is my article seem to indicate that there is a danger presented by the “special needs” doctrine?  Very simply because the “special needs” doctrine is extremely fact specific and here the facts and the laws are being executed and interpreted in secret.  This creates a hollowing out of your 4th amendment rights.

We know to date that citizens of the United States of America have had their rights violated by the federal government.  We know that there are decisions by the FISA courts indicating that such violations have taken place.  However, there is no remedy or even a right to know whose rights have been violated.  A right that cannot be enforced is not much of a right at all.  This is even more true when the very evidence of the violation is ordered to be destroyed and no citizen is made aware to what extent and under what authority their rights were violated.

Furthermore, citizens cannot adjudge what actions their government is taking and comport their future behavior to protect their privacy.  For instance, I know that if I use a ferry to transport myself across Lake Champlain my bags and my car may be searched.  If I have something I don’t want the government to know about (whether legal or illegal) I can comport my behavior to protect my privacy.  I can hire my own boat, I can drive around the lake, or I can choose to transport my luggage or car via any number of alternatives.  In connection with the NSA snooping I do not know under what standards my privacy is being invaded.  I cannot even attempt to comport my behavior to protect my privacy if I don’t know what items of mine the government is searching and under what theory they are conducting the search.

I understand the need to keep secrets so that the terrorists cannot attack American citizens.  However, if I cannot protect my rights from my government then my choice becomes the lesser of two evils.  Our founding fathers created limitations on our government as a bulwark against such choices.  We chose freedom over perfect security.  We saw that the search for perfect security gives the government powers that can and will be abused.  Open government, written laws, and open courts protect the citizens from overreach by their government.  Two of those very sacred protections are taken away from us under the FISA regime.  We are left to the whims of elected officials and are in danger of becoming a nation of men not a nation of laws.

*For a more comprehensive take on this law please see my article entitled “Smith v. Maryland and the NSA telephone number defense.”