It appears that the controversy over the federal government's phone call data collection and analysis program, a tool in the war against terrorism, is headed for the U.S. Supreme Court.
Some critics of the program have charged that it constitutes an illegal "search" of citizens. If opponents of the program are to be believed, the government is engaged in a massive violation of our Fourth Amendment rights.
These are serious charges. Unfortunately, the charges have been accompanied by distortions and misrepresentations of the program. One approach to better understand the program is to separate it into three stages. The point at which the government actually may examine the contents of a telephone call by a U.S. citizen occurs, if it occurs at all, is at the end of a three-stage process.
The first stage involves the acquisition by the National Security Agency of telephone "metadata" from telephone service providers. The data collected is vast, but the information contained in the bulk data is limited. It includes information about numbers called and received, and the duration of the calls. It does not include the content of the calls or identities of the callers.
Following the collection of the phone data, a second stage of the program commences. Before NSA analysts search the data, the Patriot Act requires they document facts that demonstrate a "reasonable, articulable suspicion" that the phone numbers being used to search the database are associated with a specified foreign terrorist organization.
These organizations must be approved for targeting by the Foreign Intelligence Surveillance Court.
Critics charge that the procedure just described constitutes a search in violation of the Fourth Amendment. These critics are probably mistaken, however.
In a decision by the Supreme Court in 1979 (Smith vs. Maryland), the court ruled that a criminal suspect's dialed telephone numbers collected by police from a telephone company did not constitute a search.
The court observed that the acquisition of those numbers entailed neither a search of the property of persons making phone calls nor an invasion of their privacy.
Even if the 1979 Supreme Court precedent was disregarded and it was determined that the Fourth Amendment was applicable to the first two phases of the surveillance program, the program might be legal, nevertheless. A Fourth Amendment search is deemed illegal only if it is "unreasonable."
The reasonableness of a search, the court has stated, is determined by the balance authorities achieve between the level of personal intrusiveness the search constitutes, on the one hand, versus the gravity of the government's interest served by the search, on the other. It would appear that the first two phases of the program entail only a minimal intrusion on the privacy rights of persons whose phone numbers may be collected in the data.
On the other hand, the government interest served by the use of these data to detect deadly terrorist plots is a compelling interest indeed.
When the searches reveal links between domestic phone numbers and suspected terrorist organizations, the program enters a third stage. The third stage constitutes the authorization for government authorities to actually conduct surveillance on the content of phone calls.
To receive this authorization, the FBI must present evidence to the Foreign Intelligence Surveillance Court to demonstrate it has probable cause to believe a domestic phone number is being used by an agent of a foreign terrorist organization.
If the court is convinced, it may authorize the FBI to intercept the contents of phone calls to and from the domestic phone number under suspicion.
Despite the safeguards contained in the program designed to protect the privacy rights of U.S. citizens, suits have been filed in federal court to force an end to it. Ultimately, the constitutionality of the program probably will be determined by the Supreme Court.
In the meantime, given the public controversy the program has aroused, a national consensus to modify it is emerging. Even so, the director of the NSA, Keith Alexander, stated before Congress that the surveillance program had "protected the U.S. and our allies from terrorist threats across the globe."
Let's hope the modifications do not compromise the program's effectiveness.