Is the NSA data-seizure program constitutional?

| August 26 2013
Christopher Cook

And, are secret courts “deciding” whether these things are or are not constitutional behind closed doors?

There is a real fundamental challenge to having popular sovereignty if the people can’t know that the government is collecting data on them and…confiscating it from private companies.” says leading libertarian legal theorist Randy Barnett of Georgetown University Law Center.

Reason’s Matt Welch caught up with Barnett at Freedom Fest to discuss the National Security Agency (NSA).


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The Fourth Amendment covers "searches and seizures," which covers the NSA-data snooping, and requires probable cause that a crime has been committed and specific delineation of what is to be searched and seized.  The NSA may have - we don't know for sure - obtained an order from the secret FISA court to acquire data of most Americans.  Granting this order either means the court stretched the probable cause requirement beyond all recognition - every American with a phone can't really be suspected of being a terrorist - or did not use the probable cause standard at all, which is the more likely case, but just as unconstitutional.   A provision of the Patriot Act makes it easier to obtain a court order for the government to obtain information relevant to a national security investigation, but the Fourth Amendment makes no exception for national security matters.  

The vaunted "War on Terror" is, in reality, a war on American freedom.  The question here isn't balancing freedom and security.  Determined terrorists can always take lives.  But only our politicians, with our acquiesance, can take our freedoms. 

WesternFreePress moderator

@phoenixlaw Yeah, I tend to agree with Barnett and others who assert that general, suspicion-less surveillance crosses the line. National security is vital, and it is one of the primary duties of even the most minarchist government. But there are lines it should not cross, even in that pursuit.