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Y O U N G L A W Y E R S J O U R N A L
I
n June of 2013, the
Guardian
revealed
the first of several leaks of informa-
tion obtained by former National
Security Agency (NSA) employee Edward
Snowden. These in part detailed the NSA’s
acquisition of “telephony metadata”—
information about the numbers dialed and
length of calls made, but not the actual
content of any conversations—from mul-
tiple telephone carriers regarding United
States customers, including both interna-
tional and domestic calls.
Since the leaks became public, a vig-
orous public policy debate has erupted
over the propriety of the NSA’s program.
One aspect of the NSA’s program that has
drawn less-acute public attention is its
ramifications for the understanding of the
term “search” in the Fourth Amendment.
The government claims that, under the
so-called third-party doctrine, the NSA’s
program does not qualify as a “search” that
would trigger the Fourth Amendment’s
strictures.
But civil libertarians insist that the
collection of data from over 325 million
subscribers must be a constitutional search,
or else the Constitution would fail to place
any limits whatsoever upon government
efforts to use big data to glean detailed
understandings of citizens’ daily lives.
This battle is now unfolding in real time
in federal courts across the country.
The Third-Party Doctrine
The government’s position, accepted by
the Foreign Intelligence Surveillance Court
that originally authorized the program and
endorsed by at least one additional federal
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JANUARY 2015
When the Government Mines “Big Data,”
Does It Conduct a Fourth Amendment
Search?
By Mike Gentithes