CBA Record

Y O U N G L A W Y E R S J O U R N A L

When the Government Mines “Big Data,” Does It Conduct a Fourth Amendment Search? By Mike Gentithes

I n June of 2013, the Guardian revealed the first of several leaks of informa- tion obtained by former National Security Agency (NSA) employee Edward Snowden. These in part detailed the NSA’s acquisition of “telephony metadata”— information about the numbers dialed and length of calls made, but not the actual content of any conversations—from mul- tiple telephone carriers regarding United States customers, including both interna- tional and domestic calls. Since the leaks became public, a vig-

orous public policy debate has erupted over the propriety of the NSA’s program. One aspect of the NSA’s program that has drawn less-acute public attention is its ramifications for the understanding of the term “search” in the Fourth Amendment. The government claims that, under the so-called third-party doctrine, the NSA’s program does not qualify as a “search” that would trigger the Fourth Amendment’s strictures. But civil libertarians insist that the collection of data from over 325 million

subscribers must be a constitutional search, or else the Constitution would fail to place any limits whatsoever upon government efforts to use big data to glean detailed understandings of citizens’ daily lives. This battle is now unfolding in real time in federal courts across the country. The Third-Party Doctrine The government’s position, accepted by the Foreign Intelligence Surveillance Court that originally authorized the program and endorsed by at least one additional federal

36 JANUARY 2015