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.

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