from the can't-outsource-constitutional-responsibility dept
But, still, as Cindy Cohn at the EFF is noting, if the NSA thinks that having AT&T sift first and then voluntarily hand stuff over somehow absolves it of violating the 4th Amendment with these collections, well, then the NSA is wrong.
Given that the EFF is already challenging this collection in the Jewel v. NSA case, it seems like the latest leak may be somewhat helpful.
First some law: the Fourth Amendment applies whenever a "private party acts as an ‘instrument or agent’ of the government." This rule is clear. In the Ninth Circuit, where our Jewel v. NSA case against mass spying is pending, it has been held to apply when an employee opens someone's package being shipped in order to obtain a DEA reward (US v. Walther), when a hotel employee conducts a search while the police watch (US v. Reed), and when an airline conducts a search under a program designed by the FAA (United States v. Davis), among others.
The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights. It seems that the NSA may have been trying to do just that. But it won't work.