The Fourth Amendment prohibits government agencies like the NSA from invading your privacy without a warrant.
This seems pretty straight forward and unambiguous, doesn’t it?
Not when government wordsmiths get involved.
Consider the Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
It seems clear that this would prohibit federal agents from collecting all of the letters out of your mailbox.
But imagine for a moment you caught an FBI agent in the act of rummaging through your mail, and he explained to you that he wasn’t going to actually read the letters. He was only planning on making copies of your mail in case the FBI needs to read them at a later date.
“Since I’m not actually reading your mail, I am not violating your privacy rights. The Fourth Amendment doesn’t apply unless I read them. If we need to later, we will get a warrant” *wink wink*
Would any reasonable person accept this reasoning?
Of course not.
FBI agents pilfering your mail without a warrant, or even probable cause, clearly violates the Fourth Amendment.
But the NSA uses exactly this reasoning when it comes to gathering electronic data.
USSID 18 serves as the NSA’s top-secret manual of definitions and legal directives.
According to U.S. intelligence expert James Bamford, Under USSID 18, the NSA defines the word “intercept” differently than you and I commonly use it.
“An ‘intercept’ doesn’t take place until it’s actually listened to, until somebody puts on some earphones or actually reads some text on a screen. So you can pull in all the communications you want,” Bamford said in a New York Times documentary called the Project.
The NSA claims the authority to gather any data at all and store it, then conduct queries and searches targeting individuals long after the data was gathered.
In other words, according to the NSA, seizing your information doesn’t constitute seizing your information. It only counts when somebody actually looks at it. That may or may not require a warrant. And knowing what we know about the NSA it won’t bother with a pesky warrant. The agency regularly circumvents those inconveniences, instead relying on its own made-up legal definitions.
Regardless, any reasonable reading of the Fourth Amendment within its historical context clearly prohibits this kind of data mining and information gathering.
The NSA can no more constitutionally seize your email and phone records any more than it can grab the mail out of your mailbox.
This serves as yet another indication that the NSA is an agency out of control and completely detached from any constitutional reality.