On Friday, the Obama Administration released a “white paper” articulating its case for the legality of the NSA call records program under Section 215 of the Patriot Act and under the Fourth Amendment. I found the “white paper” a somewhat frustrating read, as it is essentially a brief for the government’s side with no brief coming to oppose it. Although the white paper raises some interesting points, it also fails to confront counterarguments and address contrary caselaw.
Some observations regarding the First Amendment chilling effects issue.
1. The whitepaper argues that court imposed rules that restrict the Government's access to the collected metadata substantially mitigate any First Amendment concern arising from the breadth of collection. This is almost a good argument. However, chilling effects have a lot to do with trust and the intersection between chilling effects and secret courts presents a challenge that is unaddressed here. Lets say the court authorized the NSA to access the data for a different reason. Lets say the court created different procedures for accessing the data. As an ordinary citizen, I would have no idea. In fact, the NSA may already be accessing the data for other reasons and misrepresenting this to the public, just as a few months ago the Director of National Intelligence misrepresented the fact that data was being collected at all.
Because there is no way for citizens to know, ultimately, what data is being collected, how the data is being used, or whether safeguards exist for accessing the data, "oh they're only using that to investigate terrorists" may not be a reasonable assumption for people to make, even if its really true. The lack of transparency coupled with public misrepresentations has created a trust vacuum which has its own chilling effects on First Amendment protected activities.
2. The reference to US v Ramsey is interesting - the idea that a warrant requirement for reading content during a border search limits the chilling effect of those searches on first amendment activity. While there is nothing technically wrong with way the reference is used here, its worth noting that the Fourth Circuit in United States vs. Ickes seemed to hold that the presence or absence of a warrant requirement for reading content has no bearing on a First Amendment analysis of border searches, so they are making an argument based on an observation that may be bunk in its original context. The Fourth Circuit suggested that law abiding citizens don't need to worry about suspicionless border searches of our First Amendment protected material because border agents don't have the time and resources to search every laptop. I personally don't find that very reassuring, but even if you do, the automated searches that the NSA can perform on collected data eliminate the rationalization that "they don't have enough time to bother with me," so a warrant requirement might be necessary here even if you don't think its necessary at the border.
