When it comes to modern technology, there are few questions that raise broader constitutional concerns than the NSA’s collection of Americans’ telephone records. It is difficult to determine what James Madison would have thought of the practice, but the framers understood that technological change might expose existing law to challenge. This has been the case many times, as new technologies have forced judges to reconsider legal precedents. From the automobile to GPS, the court has struggled to balance public safety and privacy needs in cases involving advancing technology.
In the NSA phone-records case, the main question is whether the use of this technology constitutes an unreasonable search under the Fourth Amendment. The framers of the Constitution understood that a reasonable expectation of privacy in one’s home, car, papers and effects, and that the government could not search those areas without a warrant supported by probable cause. This has been the prevailing view of the Supreme Court in most cases, but exceptions to this rule have emerged when the use of technology creates new constitutional issues.
For example, in a 2001 case involving thermal-imaging, the court held that the government needed a warrant to aim a thermal-imaging device at someone’s house, which was not visible to the naked eye. The police used the device to measure the temperature of the house and to see if marijuana was being grown under high-intensity lamps.
In these and other cases, EPIC has participated as a “friend of the court” to support privacy rights. What the Supreme Court decides in this case, and its future decisions about balancing security and privacy in the context of rapidly evolving technology, will have significant implications for the country.
