Outside Publication

Bulk Telephony Metadata Collection and the Fourth Amendment; The Case for Revisiting the Third-Party Disclosure Doctrine in the Digital Age

The John Marshall Journal of Information Technology & Privacy Law, Vol. 31


On June 5, 2013, Glenn Greenwald of The Guardian reported on leaked National Security Agency (“NSA”) documents revealing that the Agency was “collecting the telephone records of millions of US customers. . . under a top secret order issued in April.” On June 9, 2013, The Guardian released the identity of the source of the NSA leaks as Edward Snowden. Snowden, claiming that the NSA surveillance programs “pose[] 'an existential threat to democracy,'” leaked the top secret documents in order “ . . . to inform the public as to that which is done in their name and that which is done against them”—i.e., government use of dragnet surveillance to destroy “basic liberties.”

Snowden recently appeared by videoconference at the South by Southwest Conference in Austin, Texas. When asked if he would leak the details of the NSA surveillance programs again if given the chance, Snowden responded, “Absolutely yes,” and added “that he 'took an oath to support and defend the Constitution and [he] saw the Constitution . . . being violated on a massive scale.'” However, it is far from clear that the NSA‟s surveillance programs do indeed violate the Constitution under current Fourth Amendment principles.

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