A. Constitutional protection: The First and Fourth Amendments.

The First Amendment to the U.S. Constitution guarantees freedom of expression by, among other things, prohibiting any law that infringes the freedom of the press, or the rights of individuals to speak freely.  The First Amendment affords broad protection to journalists and news organizations engaged in the gathering and dissemination of news, and a core purpose of the First Amendment is the fostering of robust and uninhibited debate on public issues.[1]  For example, in Bartnicki v. Vopper,[2] the U.S. Supreme Court held that the First Amendment protected a news organization from liability for the publication of information of public interest that had been obtained unlawfully by a source.  The use of subpoenas to compel journalists to identify sources also presents serious First Amendment concerns:  Several federal circuits have recognized a qualified reporters’ privilege under the First Amendment in both civil and criminal cases to protect journalists from compelled disclosure of their sources.[3]

Along with First Amendment protections, Fourth Amendment protections are among the most crucial constitutional safeguards of newsgathering in the context of government investigations.  The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”[4]  The prohibition on unreasonable searches of “papers” and the use of “general warrants” arose from a long list of abusive colonial-era practices, many of which targeted printers and publishers of dissenting publications for seditious libel.

Under the Fourth Amendment, a “search” occurs only when the person searched has a “reasonable expectation of privacy” in the place or thing to be searched.[5]  What a person “knowingly discloses” to a third party is not the subject of Fourth Amendment protections, and government requests for such information do not require a warrant or probable cause.  As a result, because a telephone subscriber “knowingly discloses” dialed numbers to the telephone company, courts have held that the use of a subpoena or court order to obtain that information does not implicate the Fourth Amendment.[6]  In several pending challenges to the constitutionality of the government’s bulk collection of telephony metadata, discussed in more detail below, plaintiffs have challenged the application of this “third party doctrine” to large-scale collection activity.  

The third party doctrine has significant ramifications for the protection of electronic communications.  For example, electronic communications service providers necessarily have access to metadata such as telephone numbers, email to/from addresses, IP addresses of websites visited, and other addressing data that users are aware “is provided to and used by Internet service providers for the specific purpose of directing the routing of information.”[7]  This metadata can be obtained through many types of legal process.  On the other hand, although the content of emails, instant messages, and text messages are often accessible by service providers as well, courts that have addressed the issue have found that individuals retain a reasonable expectation of privacy in the substance of their communications.[8]  As a result, the government may not obtain the content without a search warrant.[9]

But as a practical matter, many surveillance authorities permit the government to obtain information that law enforcement can use to identify sources without using formal process such as subpoenas or warrants, compelling testimony, or giving notice to a journalist whose communications may be secretly monitored or seized.  Reporters whose records are obtained pursuant to national security processes such as National Security Letters, directives or orders under the Foreign Intelligence Surveillance Act (FISA), or delayed-notice warrants or subpoenas would almost certainly not be notified or have an opportunity to try to quash the request.  Indeed, reporters may not even be aware that national security processes have been used to obtain their records.  This uncertainty has been an impediment to journalists wishing to challenge surveillance practices that impact their own newsgathering processes.[10]

In the national security context, the Fourth Amendment’s application is complex.  The Fourth Amendment’s protections apply domestically, and to U.S. persons abroad, but do not apply to non-citizens abroad.[11]  There are no protections under the U.S. Constitution for non-citizens abroad who are affected by foreign intelligence investigations.  As a result, surveillance of non-U.S. persons abroad is outside the scope of the Fourth Amendment.  However, because some of the surveillance authorities used to collect the communications of non-U.S. persons abroad sweep up many communications belonging to U.S. persons as well, courts have considered whether those programs are “reasonable” under the Fourth Amendment.[12]

[1] RCFP’s First Amendment Handbook provides a primer on how the First Amendment protects journalists in a range of contexts, including from libel and defamation charges, privacy torts, and prior restraints.  See Reporters Committee for Freedom of the Press, First Amendment Handbook, available at https://www.rcfp.org/first-amendment-handbook; see also Reporters Committee for Freedom of the Press, Digital Journalists Legal Guide, available at https://www.rcfp.org/digital-journalists-legal-guide/sources-and-subpoenas-reporters-privilege.

[3] See, e.g., von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987) (reasoning that “the process of newsgathering is a protected right under the First Amendment, albeit a qualified one,” and that “[t]his qualified right . . . results in the journalist’s privilege”); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980) (recognizing a qualified privilege not to disclose confidential informants in civil cases); United States v. LaRouche Campaign, 841 F. 2d 1176, 1181–83 (1st Cir. 1988).  For more information, see Reporters Committee for Freedom of the Press, The Reporters Privilege, available at https://rcfp.org/reporters-privilege.

[7] United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008).

[8] See, e.g., United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010); Forrester, 512 F.3d at 511; cf. United States v. Hambrick, 225 F.3d 656, 2000 WL 1062039, at *2 (4th Cir. 2000) (per curiam) (finding no reasonable expectation of privacy in non-content information provided to an ISP).  See also Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U. Pa. L. Rev. 373, 399–400 (2014) (noting that “several lower courts have ruled that the Fourth Amendment fully protects the contents of emails held by third party providers” and “Warshak has been adopted by every court that has squarely decided the question”). 

[9] To the extent the Stored Communications Act appears to permit warrantless acquisition of content data, it violates the Fourth Amendment.  See, e.g., Warshak, 631 F.3d at 288.

[10] See, e.g., ACLU v. NSA, 493 F. 3d 644, 662–65 (6th Cir. 2007) (noting that the journalists’ injury involved “purely speculative fears” and a “personal subjective chill” that was not sufficiently concrete, actual, or imminent to establish standing for a First Amendment cause of action).

[11] See United States v. Verdugo-Urquidez, 494 U.S. 259, 274–75 (1990) (holding that Fourth Amendment did not apply to a citizen and resident of Mexico where the search occurred in Mexico).

[12] See Mem. Op. and Order at *28–29, FISC (Oct. 3, 2011) (J. Bates), available at http://www.dni.gov/files/documents/0716/October-2011-Bates-Opinion-and%20Order-20140716.pdf.