There is a crucial difference between the Obama administration’s phone call data-mining program, which is constitutional under current law, and the Bush administration’s NSA Surveillance Program, which was clearly unconstitutional. Unlike Obama program, which is limited to obtaining information about phone calls made and received from telephone companies, the Bush program authorized the government to wiretap private phone conversations. From a constitutional perspective, the difference is critical, and it is unfortunate that President Obama has not done a better job of explaining the distinction, and why his administration’s program does not violate the constitutional “right of privacy.”

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court has held that, at least presumptively, a search is “unreasonable” unless it is based on probable cause and a judicial warrant.

It would therefore seem that it violates the Fourth Amendment for the government to collect phone call records from phone companies without first obtaining a judicial warrant based on a finding that there is probable cause to believe that the individual whose call records the government want to examine has committed a crime. This would be true, for example, if the government wanted to open that individual’s mail or search his home or wiretap his phone calls, so why isn’t it true in this situation as well?

The puzzle turns on the meaning of the word “search.” The Fourth Amendment does not protect a general right of privacy, but only a right not to have the government unreasonably search an individual’s person, house, papers, or effects. But what is a “search”?

The Supreme Court first confronted the meaning of “search” in its 1928 decision inOlmstead v. United States. In that case, the Court held that a wiretap of a phone call was not a “search” within the meaning of the Fourth Amendment because it did not involve a physical intrusion into a constitutionally protected place. The Court explained that that what the Framers meant by a “search” was a physical intrusion into an individual’s pocket, briefcase, home or envelope. A wiretap, which is effectedwithout entering the suspect’s home, is therefore not a “search” for purposes of the Fourth Amendment. Thus, the government could constitutionally wiretap phone calls without either probable cause or a warrant as long as it did not physically enter the target’s home or business.

This remained the law until 1967, when the Supreme Court, in Katz v. United States, overruled Olmstead and held that the use of a bugging device by the police on theoutside of a public telephone booth to overhear a phone call within the booth was nonetheless a “search” within the meaning of the Fourth Amendment.

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