Constitution Day Extra Credit INTL401

by David Doolittle
9/17/2015
Lists the search tool and filters you used to find your article;
I limited the initial APUS library search to papers released in the past two years, and
applied a filter to only government reviews on constitutional intelligence issues. In doing so I
believe my source to be timely and credible, a Congressional Research Service report on the
issue (4).
Summarizes the issue in question;
After edward snowdens revelations in 2013 to the global public about the extent of the
National Security Agency's (NSA) bulk data collection program, Congress initiated discussion
on the constitutional legality of such a program as prompted by general consensus on the
necessity of the issue.
Identifies the Article of the Constitution which bears on the question; and,
The article in question is the 5th Article, 4 Amendment. However the discussion can
include the 1st Article Section 8, 3rd Article Section 2, the 5th Article 1st and 5th amendments
for additional consideration.
Provides a concise argument for why you believe the element, operation, or effort is or is
not consistent with the U.S. Constitution.
In 2001 the Patriot Act was passed by Congress to prevent domestic and foreign
terrorism. The act became US law according to the relation to the powers vested in Congress by
the constitution (Article 1, Section 8) to create legislation in common defense of the people
and To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers (6). Provisions in the Patriot Act that defined those foregoing powers were

timed to expire. At expiration these provisions could be reinstated or ratified if necessary by a

vote in Congress. One provision tasked to provide common defense, the intelligence community
could collect bulk records of electronic data in the foreign and domestic environments (7). For
the next decade and a half the NSA found ample success in supporting the prevention of
domestic and international terrorism with the bulk data collection programs (1). The revelation of
the program, already in part written in the Patriot Act, brought staunch criticism of its
constitutionality.
Bulk data collection of a persons phone or online records was considered a violation of the
constitutional (Article 5, Amendment 4) right to the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures (5). The media
interpreted the term bulk as meaning all people in the United States and projected that belief to
the public. When in fact the NSA stated with several responses, during congressional
questioning, NSA director Keith Alexander defended the program utilized reasonable and
rationable circumstances as primary evidence for selecting individuals for data collection (1).
The mainstream media led the general public to believe every person's phone records and online
metadata were under surveillance. Evidence key to definitions of domestic or foreign terrorists
needed to be present for the program to begin collection on an individual according to the
Congressional Research Service Report (4). The program then itself had probable cause in
compliance with the Patriot Act and the constitutional wording (Article 5, Amendment 4) .
Additional criticism revolved around the issue of search of one persons houses papers and effects
without warrants. The claim was the data was personal property of the individual being
searched and doing so would be an infringement on their 4th amendment rights to collect the
data. Actually data can be considered a grey area in regards to the issue of property. According to
the the constitution (Article 3, Section 2) the US Supreme Courts judicial Power shall extend to
all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States(6).
To this date no standing supreme court has defined computer generated data as property. The
internet and telecommunications company facilitate user data creation. A internet user creating
content, the data is a property of the internet service provider or the website the user is
interacting with. Text or calls, the data is property of the telecommunications company.
Voluntarily or with compensation the proprietary right to that data can be provided to the NSA,

and should be considered constitutional to do so. In addition the data collection should be
compensated according to the Constitution (Article 5, Amendment 5) nor shall private property
be taken for public use, without just compensation (5). This relevant to the constitutionality of
the program as the data, property of the facilitator, possibly can be used as evidence in a court
trial. Case in point, metadata from online activity and text records are not personal property
under the current interpretation of the constitution. Making the bulk collection of data by the
NSA constitutional until the provision making it a congressionally passed lawful activity expires.
The other public concern constituted of the NSA collecting recordings of phone conversations as
part of the bulk data collection program.
Direct interception of communication between individuals requires a warrant. Your spoken
words, regardless if they are derogatory of the government or communicating with a spouse what
is dinner, are protected under the right of free speech covered in the constitution (Article 5,
Amendment 1). Phone conversation surveillance by any body of the government is supposed to
require at least a warrant and expanded surveillance a FISA warrant from a federal judge. The
program under constitutional scrutiny is the bulk collection of data, not phone conversations. A
concerned public has misinterpreted what the bulk collection program was. When that provision
expired, the public opinion of the measure ensured a heated debate about the constitutionality of
the bulk data program. Relevancy of evidence to interpretations that presented the bulk data
collection program as being constitutional gave way to ignorance on the fear it was being used
against the people. Outward appearance to see the potential for malicious use of this program,
prompted it to be a provision of the Patriot act severely unfavorable by the US general public.
The timing is dangerous to not consider the benefits of reinstituting the provisions enabling bulk
data collection. Homegrown lone wolf attacks are being credited as significant national security
threats by the Director of National Intelligence and Homeland Security (2). Contextual analytics
of bulk data could provide comprehensive understanding behind behavior indicators of lone wolf
attackers based on online activities or frequency of phone activity with a federal office. The
threat from the Islamic State sending trained soldiers back to commit attacks on US soil is a
rising concern in the USIC (3). Their main recruitment tool has been social media, collaborating
future new sources of bulk data could uncover if the group uses Facebook or Twitter to issue
attack orders.

Weighing every complaint made about the constitutional bulk data collection program by the
NSA is a discussion the American people needed to have, only when the provision expired.
Snowden robbed us of that right, because he deemed the program unconstitutional, then took it
upon himself to reveal the truth to the world. It begs the question if many who support his
decision, really understand the US constitution at all? This program had its follies but according
to this interpretation was aligned with the constitution. Many other interpretations will use
different evidence to prove the bulk data collection was unconstitutional. That is one of the
miracles of the US Constitution, how flexible yet resilient it has remained after 228 years. It's
malleable to interpretation, and because of it we have this freedom many other countries
constitutions ignore we are able to have discussions such as this one. Happy constitution day
2015!
Works Cited;
1.Carroll, Rory. "NSA Director Keith Alexander Defends Surveillance Tactics in Speech to
Hackers." The Independent. July 31, 2013. Accessed September 16, 2015.
http://www.theguardian.com/world/2013/jul/31/nsa-keith-alexander-black-hat-surveillance.
2.Howell, Kellan. "DHS Report Warns of Domestic Right-wing Terror Threat." Washington
Times. February 21, 2015. Accessed September 16, 2015.
http://www.washingtontimes.com/news/2015/feb/21/dhs-intelligence-report-warns-of-domesticright-wi/.
3."ISIS Exploits Social Media to Make Inroads in U.S. - CNN.com." CNN. June 5, 2015.
Accessed September 16, 2015. http://www.cnn.com/2015/06/04/us/isis-social-media-recruits/.
4.Liu, Edward C. "Overview of Constitutional Challenges to NSA Collection Activities and
Recent Developments." April 1, 2014. Accessed September 16, 2015.
5."The Bill of Rights: A Transcription." National Archives and Records Administration. Accessed
September 16, 2015. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
6."The Constitution of the United States: A Transcription." National Archives and Records
Administration. Accessed September 16, 2015.
http://www.archives.gov/exhibits/charters/constitution_transcript.html.

7."The USA Patriot Act." October 26, 2001. Accessed September 16, 2015.
http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf.