If the government employed Superman, Flash, or someone else capable of superhuman speed, to secretly search through your "papers" in the blink of an eye, has your Fourth Amendment right to be secure against unreasonable searches been violated? This is not related to a sneak and peek warrant, because there is no stinking warrant; instead of the secret search happening in your physical home, this search rifles through your "digital" papers. So where in the Fourth Amendment does it say that searches of "papers" happening at super-fast speeds are reasonable?
Charlie Savage at The New York Times focused on one paragraph from "top secret" FISA court documents previously published by The Guardian. It mentioned that the NSA "seeks to acquire communications about the target that are not to or from the target." More specifically, the "about the target" surveillance means the NSA is "temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border."
Computer scientists said that it would be difficult to systematically search the contents of the communications without first gathering nearly all cross-border text-based data; fiber-optic networks work by breaking messages into tiny packets that flow at the speed of light over different pathways to their shared destination, so they would need to be captured and reassembled.
A government official speaking to the NYT on the condition of anonymity said the NSA makes a "clone of selected communication links" to gather information' from email and text-based communications that cross the border. A computer searches for "identifying keywords or other 'selectors' and stores those that match so that human analysts could later examine them. The remaining communications, the official said, are deleted; the entire process takes 'a small number of seconds,' and the system has no ability to perform 'retrospective searching'."
It was, however, deemed too "difficult" to pinpoint "any particular terrorist plot that would have been carried out if the surveillance had not taken place." Imagine that.
If Americans' communications singled out for further analysis are deemed "relevant," then "the agency can retain it and disseminate it to other agencies, the rules show." Yet during President Obama's "surveillance speech," he stated, "I want to make clear once again that America is not interested in spying on ordinary people."
But dragnet surveillance does spy on the average Jane and Joe Doe. As The Atlantic pointed out, "America may not be 'interested' in spying on ordinary people, but it is doing so daily. It is spying on millions of ordinary people."
President Obama also said:
...a general impression has, I think, taken hold, not only among the American public but also around the world, that somehow we're out there willy-nilly just sucking in information on everybody and doing what we please with it. Now, that's not the case. Our laws specifically prohibit us from surveilling U.S. persons without a warrant. And there are whole range of safeguards that have been put in place to make sure that that basic principle is abided by.
But The Atlantic wrote, "Team Obama is collecting information on everybody! It isn't being done willy-nilly, but deliberately and comprehensively." The Guardian added, "The NSA is searching everything now - in real time and without suspicion - merely on the chance that it finds something of interest."
Regarding the Foreign Intelligence Surveillance Court (FISC), President Obama stated, "One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story, may tilt it too far in favor of security, may not pay enough attention to liberty."
"But a judge's job is not balancing liberty and security as if there is an objectively correct degree of 'tilt' that they can settle upon," argued The Atlantic. "Judges are there, first and foremost, to ensure that the Constitution is not violated, and then to be sure that the law is being followed. The rule of law is the most important safeguard that secures the life and liberty of Americans, and any legal regime that permits the Constitution to be violated in secret is 'tilting' away from long term security."
"Whether the NSA inspects and retains these messages for years, or only searches through them once before moving on, the invasion of Americans' privacy is real and immediate," warned The Guardian. "There is no 'five-second rule' for fourth amendment violations: the US constitution does not excuse these bulk searches simply because they happen in the blink of an eye."
Indeed, just because the search happens as if conducted by a government-hired superhero with superhuman speed does not make the search "reasonable," therefore meaning it is unconstitutional and violates your Fourth Amendment right to be secure against unreasonable searches.
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