Journal of Information & Privacy Law

Is the NSA’s Surveillance of Telephone Data Really a Violation of Our Privacy?

By Pamela Szelung, Editor-in-Chief on Wednesday, January 8th, 2014
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Edward J. Snowden’s actions in early 2013 created an international uproar against the U.S. government’s secret surveillance programs.  The U.S. National Security Agency (NSA) was directly attacked for secretly monitoring the phone numbers of world leaders and for asking U.S. officials to “share their Rolodexes so the agency can add the phone numbers of leading foreign politicians to their surveillance systems.” As this “revelation” is fought on the international playing field among global leaders, we must ask ourselves how the NSA surveillance program affects U.S. citizens’ individual privacy rights on the domestic home front.

As an apparent defense of its actions and an attempt to mitigate the negative global reactions, the NSA has pointed out that it does not monitor actual telephone conversations of U.S. citizens; but rather, only the call data, such as incoming and outgoing phone calls and the duration of these calls.   At first glance, one may reason that surveillance of an individual’s phone call records may violate the individual’s constitutional privacy rights under the Fourth Amendment; however, this reasoning is flawed.  By only monitoring the information that is already exposed to the telephone company, the NSA has not violated any constitutional privacy rights that an individual may have under the Fourth Amendment.

Information that would otherwise be protected under the Fourth Amendment may not actually be protected if the information  was made available to the public or a third party.  This premise is commonly referred to as the “third party doctrine” exception to Fourth Amendment constitutional privacy.  In Smith v. Maryland, the Court stated that a “person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”  442 U.S. 735, 735 (1979).  In the Smith case, the police requested, without first obtaining a warrant, that the telephone company install a pen register to monitor the telephone numbers that the suspect dialed from his telephone.  The Court held that the police did not violate the suspect’s Fourth Amendment privacy because the suspect-defendant could not have a subjective expectation of privacy to records that he knew were tracked by the telephone company.  The court also stated that it was “doubtful” whether society as a whole had any objective expectation of privacy to the telephone numbers that they dial because society is aware that the telephone company must keep records of this information.

Turning to the current situation, the NSA collected the telephone records of millions of individuals who are not able to legitimately claim that a violation of their constitutional right to privacy occurred because they knowingly exposed this information to the telephone companies.  As the Court ruled in Smith, individuals who knowingly exposed this same data to the telephone companies cannot turn around and claim that this information was to be kept private from the government.  Therefore, since the telephone records are subject to the third party doctrine under Fourth Amendment privacy, the NSA’s actions in collecting telephone calling data from millions of Americans should be deemed constitutional.  

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