A Challenge to Constitutionality of NSA Surveillance

Keith Coffman, Colorado defendant is first to challenge expanded U.S. surveillance effort Reuters (January 30, 2014)

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NSA: Cellphone Location: Five Billion Records/Day

Does it follow (in an informal sense) from the below article that Russia or the PRC probably has collected troves of cellphone location data of U.S. citizens?

Barton Gellman and Ashkan Soltani, NSA tracking cellphone locations worldwide, Snowden documents show Washington Post (December 4, 2013):

The National Security Agency is gathering nearly 5 billion records a dayon the whereabouts of cellphones around the world, according to top-secret documents and interviews with U.S. intelligence officials, enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable.

The records feed a vast database that stores information about the locations of at least hundreds of millions of devices, according to the officials and the documents, which were provided by former NSA contractor Edward Snowden. New projects created to analyze that data have provided the intelligence community with what amounts to a mass surveillance tool.

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Professor Randy Barnett on NSA Surveillance

Randy Barnett, The NSA's Surveillance Is Unconstitutional (Op.-Ed.), Wall Street Journal (July 11, 2013):

Due largely to unauthorized leaks, we now know that the National Security Agency has seized from private companies voluminous data on the phone and Internet usage of all U.S. citizens. We've also learned that the United States Foreign Intelligence Surveillance Court has approved the constitutionality of these seizures in secret proceedings in which only the government appears, and in opinions kept secret even from the private companies from whom the data are seized.

If this weren't disturbing enough, the Consumer Financial Protection Bureau, created by the 2010 Dodd-Frank financial reform, is compiling a massive database of citizens' personal information—including monthly credit-card, mortgage, car and other payments—ostensibly to protect consumers from abuses by financial institutions.

All of this dangerously violates the most fundamental principles of our republican form of government. The Fourth Amendment has two parts: First, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Second, that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

By banning unreasonable "seizures" of a person's "papers," the Fourth Amendment clearly protects what we today call "informational privacy." Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers' trust.

[snip, snip]

Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property "without due process of law." Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.

In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants. For the people to control their servants, however, they must know what their servants are doing.

[snip, snip]

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Excellent Op-Ed by Gail Collins on NSA Spying and Obama

Gail Collins,  Intelligence for Dummies NYTimes (June 7, 2013).

Snippets (but do read the entire op-ed column):

"'Nobody is listening to your telephone calls,' President Obama assured the American people on Friday. Well, probably nobody. And, if they are, it’s under an entirely different part of the program.

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"Let’s start with the real basics. Does the N.S.A. really need all the stuff it’s collecting? Ever since the attack on the World Trade Center, the agency has been exploding. It has an enormous operation outside of Washington, and it is building another million-square-foot complex in the Utah desert. It collects an estimated 1.7 billion pieces of communication a day. 'When you have the ability to get more and more data, the natural inclination is to get as much as possible,' said Representative Henry Waxman, the former chairman of the House oversight committee.

...

"...[W] e do seem to have an ominous combination: an agency with a bad record on thriftiness, and practically everything it spends money on is secret. 'It’s a tough balancing act,' an Obama administration official told me. 'It’s incumbent on us and Congress to do the job of scrutinizing the budget, both in terms of cost and efficacy.'

"Yeah, what about Congress? The president keeps saying that “Congress is continually briefed” about security issues. In reality, the briefing is pretty much confined to the members of the House and Senate intelligence committees, who are sworn to secrecy. Many of them also have a longstanding record of being in the pocket of the intelligence community. A few of the others had been desperately trying to warn their colleagues about the telephone-call program without breaking their vow of silence. Senator Ron Wyden of Oregon did everything but tap dance the information in Morse code.

...

"I wouldn’t rely on Congress to keep things under control. It’s really up to the president. As a candidate, Obama looked as if he would be great at riding herd on the N.S.A.’s excesses. But if he has ever seriously pushed back on the spy set, it’s been kept a secret. Meanwhile, the administration scarfs up reporters’ e-mails and phone records in its obsessive war against leaks.

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"“I welcome this debate,” Obama said Friday. “I think it’s healthy for our democracy.” Under further questioning, he said that he definitely didn’t welcome the leaks. Without which, of course, there would be no debate.

"Do you remember how enthusiastic people were about having a president who once taught constitutional law? I guess we’ve learned a lesson."

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