Is The NSA’s Telephone Meta-Data Program Constitutional?

Having taught privacy law at the University of Connecticut School of Law since 2003, I have followed the discussions about the legality of the National Security Agency’s telephone “meta-data” surveillance program with great interest.  In this context, meta-data refers to the non-content attributes of telephone communications, such as the numbers called, the length of the call and the frequency of calls to particular numbers.  Three questions are of particular interest:

1. What exactly is the NSA’s telephone meta-data program?
2. Is the program a “search” within the meaning of the Fourth Amendment?
3. If the program is a “search,” is the search “reasonable” (and thus constitutional), or is it “unreasonable,” and thus a violation of the Fourth Amendment?

I was going to write a series of posts intended to address these questions, but then discovered that Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, had written a series of seven informative posts on these very issues.  Rather than reinvent the wheel, I’ve linked to Professor Stone’s posts.

The first four (click here, here, here and here) discuss the factual background of the program, i.e., what it is, how it works, etc. 

The next three posts discuss the legality of the program.  Post one of three provides an introduction to the Fourth Amendment.  Post two of three discusses whether the NSA’s program is a “search” within the meaning of the Fourth Amendment.  Professor Stone answers that question in the affirmative.  That means the program must comply with the “reasonableness” requirement of the Fourth Amendment. In post three of three, Professor Stone considers whether the “search” is reasonable.  He concludes that it is not and, therefore, that the NSA’s program violates the Fourth Amendment.