Kevin J. Schrop
ABSTRACT
In 2013, Edward Snowden leaked classified documents that revealed a massive surveillance program conducted by the National Security Agency (NSA). In revealing the NSA’s surveillance program, the Snowden disclosures also detailed significant warrantless sharing of data between private U.S. communications companies and the U.S. government. Private communications companies collect and store the “metadata” of their customers in order to customize marketing and boost sales; however, these private companies often share this data with the government, who wants and uses this data for very different reasons.
While the Snowden disclosures created a public furor over the NSA’s surveillance practices, the surveillance techniques of other U.S. agencies, in particular, the Federal Bureau of Investigation’s (FBI) use of National Security Letters (NSLs), have garnered far less attention. Through NSLs, which are administrative subpoenas requiring no judicial oversight, the FBI can demand that private companies turn over the metadata they have collected on individuals. The FBI’s power to issue NSLs is derived from two 1970s Supreme Court decisions concluding that an individual has no privacy right in information voluntarily given to a third party. This lack of an individual privacy right is known as the “third-party doctrine.”
Although the Fourth Amendment of the U.S. Constitution protects Americans from illegal searches or seizures by the government, private entities are largely exempt from constitutional standards. However, the public-private data sharing revealed by Snowden raises questions regarding private companies’ involvement in what would otherwise constitute Fourth Amendment violations. This Comment argues that the transfer of personal data from private companies to the FBI under the authority of an NSL (1) allows the government to skirt the Fourth Amendment, (2) is unconstitutional, and (3) must end. The tenets of the third-party doctrine must be reconsidered in light of modern technology, and the entanglement exception embedded in constitutional jurisprudence provides an avenue through which the Fourth Amendment becomes applicable to private entities.