The latest Obama administration controversy will not prove as bad as it first seems. Apparently, the administration has been asking Verizon for all of the “metadata” on all of its customers’ calling — the phone numbers called and received, but not the content of the calls themselves.
In the days after the September 11, 2001 attacks, the Bush administration’s Justice Department (in which I served) approved a program that may have relied on similar technology, but was far narrower in scope. Both programs, however, seek to use communications coming into the United States from a known terrorist abroad to identify an al-Qaeda network within the country.
The revelation of broad e-mail surveillance is more troubling, but it is because we don’t know the program’s scope. If the program only intercepts the content of e-mails for foreigners abroad, as is being reported, there is no constitutional violation. As the Supreme Court has made clear, the Fourth Amendment does not protect the communications of non-U.S. persons that take place abroad. In fact, the Justices reached that conclusion because they observed that it would be impossible for the U.S. to fight a war against a foreign enemy if limited by the Fourth Amendment. Allowing the government to intercept foreign, potentially enemy signals intelligence abroad without a warrant recognizes the reality of war, as opposed to the precise targeting of communications that would apply if domestic law enforcement were the framework.
We shouldn’t expect any measured response to the Obama administration’s program from the usual libertarian critics, should we? When news broke in 2006 that the National Security Agency had been collecting phone-call metadata, Senate Democrats called for President Bush’s censure or perhaps impeachment, New York Times and Washington Post editorial writers attacked Bush as a violator of the Constitution, academic leaders such as Yale law-school dean Harold Koh called it “quite shocking” and without judicial approval, and Senator Patrick Leahy had a hearing where he yelled “are you telling me that tens of millions of Americans are involved with al-Qaeda?”
For those who want to dive deeper, I published a law-journal article in 2007 in George Mason Law Review on the constitutionality of such measures. Sorry for all the footnotes, but there are a lot less than in the usual academic article — promise.