Casarez on the Synergy of Privacy and Speech

Nicole B. Casarez. University of St. Thomas, University of Houston Law Center, is publishing The Synergy of Privacy and Speech in volume 18 of the University of Pennsylvania Journal of Constitutional Law (2016). Here is the abstract.

With the passage of the USA FREEDOM Act in June 2015, Congress supposedly curbed NSA’s ability to spy on ordinary Americans by taking the agency out of the domestic metadata collection business. In truth, however, the new law leaves untouched the NSA’s ability to capitalize on the global nature of modern communications networks to collect and analyze most of those same communication records under other legal authorities, including Executive Order 12333. Accordingly, the Freedom Act does nothing to resolve the great constitutional metadata debate. The law leaves intact the government’s theory that when the NSA collects metadata associated with U.S. -person communications, and uses it to map out our contacts and social networks, the agency resides in a constitution-free zone. Covert government surveillance programs that collect Americans’ communication records implicate both the right to privacy and the right of free expression. Given the development of the law and the constraints of precedent, however, neither the Fourth nor the First Amendment alone will provide citizens with sufficient protection against the government. Instead of viewing the two Amendments in isolation, I argue that the First Amendment value of communications privacy must be factored into the determination of whether a government surveillance program violates the Fourth Amendment. When considered in tandem this way, the two Amendments mutually reinforce each other and create a synergy that extends the protections of each. This approach, demonstrated by the Court in United States v. U.S. District Court (the “Keith” case) provides a path for the Court to reevaluate and limit the third party doctrine with respect to dragnet government collection of communications metadata, without overruling the doctrine entirely. Whether a constitutional challenge to bulk incidental collection of domestic metadata under EO 12333 will ever be heard by the Supreme Court is another matter, given the current state of the law of standing. I agree with others who have argued that, in the context of massive government surveillance programs, the Court should loosen standing requirements to ensure that those programs do not escape judicial review. In the meantime, I conclude by sketching out Congressional and executive branch reforms that would provide meaningful privacy protections to American communications records that the government currently harvests from abroad. These reforms would bring the NSA’s incidental collection of domestic communications metadata under EO 12333 more in line with the Fourth and First Amendments.

Download the article from SSRN at the link.