John Yoo: Government Data Collection Doesn't Violate the Constitution
The Constitution protects the content of communications, but not metadata
June 7, 2013
The latest Obama administration eavesdropping 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-Qaida network within the country.
The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers, in contrast to the content of the communications, because individuals lose privacy over those numbers when they are given to the phone company. (he Constitution protects the content of the communications, whether it be a phone call, email or old-fashioned letter.) And Congress approved a change to the Foreign Intelligence Surveillance Act statute to allow such collection, and a court of federal judges approved it. In wartime, the president's commander-in-chief power allows him to hunt for enemy communications, even those concealed in a sea of perfectly innocent civilian chatter. Analyzing such metadata – what is sometimes called data mining – is perhaps the most effective way to find terrorist cells in the U.S. and stop future attacks, because the Obama administration has dropped our best methods for producing intelligence (the detention and interrogation of al-Qaida leaders).
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 like Yale law school dean Harold Koh called it "quite shocking" and without judicial approval, and Senator Patrick Leahy, D-Vt., had a hearing where he yelled "are you telling me that tens of millions of Americans are involved with al-Qaida?"
I suspect that we will hear nary a peep from these sources about Obama, proving yet again that the criticism of the Bush anti-terrorism programs was motivated by partisan politics, not enduring principle. But, unfortunately, the program will be questioned because of the Obama administration's serious mistakes on its Internal Revenue Service investigations into conservative groups and Justice Department surveillance of journalists to stop leaks. The Obama administration's destruction of the American people's trust in their government's ability to run its core tax and law enforcement functions will harm our government's ability to carry out its duty to protect the nation.
For those who want to dive deeper, I published a law journal article in 2007 in the George Mason Law Review on the constitutionality of such measures. Sorry for all the footnotes, but there are a lot less than the usual academic article – promise.