Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice Over Protocol

Abstract

Information to, from, and about U.S. persons routinely comes into the possession of the National Security Agency (the "NSA") through the lawful warrantless surveillance of foreign persons abroad. The NSA's internal administrative guidelines allow such information to be disseminated to law enforcement if it evinces any criminal conduct on the part of the U.S. person. This information may therefore be used to initiate domestic criminal investigations against U.S. citizens and other protected persons despite the fact that no warrant authorized the initial surveillance. The NSA's guidelines contain no qualification as to the type of criminal offense that may be revealed, and no consideration of the individual's reasonable expectation of privacy. Using encrypted Internet telephony as an example, this Article proposes a change to the NSA's internal guidelines that would prevent dissemination of information gained through the frustration of the reasonable privacy expectations of protected persons unless exigent circumstances or serious threats to national security were presented.