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We will never know whether the National Security Agency telephone data-retrieval program meets constitutional norms because the U.S. Supreme Court has defined the issue out of existence. Fourth Amendment protections generally apply only if government officials have engaged in an unreasonable search and seizure. Because the NSA program involves no “search” as the Supreme Court defines that term, its constitutionality is not seriously at stake. According to the Supreme Court, a search occurs only if government action violates privacy expectations “that society is prepared to recognize as reasonable.” When the Supreme Court adopted this definition, civil libertarians applauded; they expected it to expand privacy protections because it replaced an antiquated standard, established in 1928, that only asked whether the police had technically trespassed on property. The “trespass test” utterly failed to consider the capacity of modern technology to obtain private information without trespassing on property rights. Following 40 years of flawed jurisprudence, the Supreme Court declared in 1967 that the Fourth Amendment “protects people, not places.” Katz v. U.S., 389 U.S. 347, struck down warrantless electronic surveillance of a telephone booth, ruling that conduct is a search whenever government officials violate someone’s reasonable expectation of privacy. But this new standard soon became problematic, as the Supreme Court experienced difficulty living with the consequences of a decision that potentially exposed more police conduct to constitutional requirements. Rather than confer broadened protections upon undesirable defendants, the court issued a series of rulings narrowly interpreting what privacy expectations are reasonable. These decisions epitomized the adage that “hard cases make bad law.” For example, although bank records enjoy statutory protection under the Bank Secrecy Act, the court ruled that depositors do not have a reasonable privacy expectation against government investigators accessing their bank records. It also found no reasonable expectation of privacy against police trespassing on open fields, conducting low-altitude helicopter surveillance over private property or using transponders to monitor automotive movement on public highways. In each case, the absence of a reasonable privacy expectation meant no “search” had occurred. This, in turn, meant no Fourth Amendment protections applied. The police could thereby act as though the Fourth Amendment did not exist. This approach, however, undermined the court’s credibility. Holding that aerial surveillance is not a search borders on absurd, and most Americans would be shocked to learn their privacy expectation in bank records is not reasonable. Nevertheless, by expanding the range of permissible investigative “nonsearches,” the court carved out categories of governmental conduct from Fourth Amendment oversight. When it ruled in 1979 that telephone users have no reasonable expectation of privacy in their outgoing phone numbers, investigations to obtain such data were no longer searches and fell outside the Fourth Amendment. This definition of search thus determined the outcome of today’s debate; absent a search, there is no constitutional intrusion for courts to review. But why rely upon a policy-driven definition that 20th-century judges crafted to interpret an 18th-century document? When the founders used the term “search,” they presumably had common usage in mind. Dictionaries then defined search as “a seeking or looking for something,” “an inquiry; examination.” Given these definitions, wouldn’t it make more sense to acknowledge a “search” for what it is and then decide whether it conforms to the Fourth Amendment? This approach remains truer to the original intent of the Constitution, frees courts to consider the reasonableness of the NSA program, and will produce more principled results than constrained interpretations of privacy expectations. Michael Goldsmith is the Woodruff J. Deem Professor of Law at Brigham Young University J. Reuben Clark Law School.

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