For instance, some argue that the metadata harvesting doesn’t really constitute a search, because the agency merely vacuums up information and stores it. Agents can’t access the information without court approval.
Never mind that a ruling by a super-secret court with no accountability or transparency doesn’t constitute a warrant in the constitutional sense – it still violates the intent of the Fourth Amendment.
At any rate, Pres. Obama proposed a reform. He suggested storing the data with a third party, placing another degree of separation between your private information and snooping federal agents. Again, this does nothing to satisfy the very simple and clear criteria laid out in the Bill of Rights.
In order for federal agents to conduct a search, they must demonstrate probable cause, obtain a warrant and specify exactly what they are searching for.
Now, your NSA apologist will again insist that merely scooping up data and storing it doesn’t constitute a search. The agency simply holds the data so agents have it available to them if they need it for an investigation. To do that, they must go to the FISA Court and convince those federal employees that they can justify accessing specific information.
This doesn’t cut it. I guess because people don’t see metadata as a tangible “thing,” they treat it differently than say a letter. But we should consider this data exactly the same as a letter because it serves an identical purpose – it stores our private information.
A little mental exercise demonstrates this.
Imagine an FBI agent comes to your house, digs all of the mail out of your mailbox, and makes copies of each piece of correspondence on his portable scanner. You run out and protest, but the agent assures you that you have nothing to fear. He won’t actually read your mail. He simply plans to file it away. Then, if he ever has a reason to suspect you of a crime, he will have the letters on hand for his investigation. He claims he will NEVER look at your correspondence until he gets authorization from a judge sometime in the distant future. (He also offers to sell you some desert land in Florida.)
Would you consider this legal?
How is this any different than the NSA vacuuming up your electronic data, emails, phone records and location information, and storing it away in case the agency needs to investigate down the road? We don’t need a warrant now. We’ll get one later, if necessary! I ask again: how is it different than copying and storing your physical mail?
Answer: it’s not.
Feds digging your mail out of the mailbox, making copies and storing it for future access would clearly violate your right to remain free from unreasonable search and seizure. It is unconstitutional.
So is NSA data mining and storage.
It’s as clear-cut and simple as that.