The revelation that the FISA court has ordered Verizon Business to turn over to the NSA call records for all telephone calls, foreign and domestic, is the biggest revelation in a series of controversies over government surveillance that have ensued since 9/11. One problem that keeps creeping into these debates is that most people don't understand exactly how the courts interpret the Forth Amendment, and government spokespersons may, within the gap of that misunderstanding, make truthful statements that create misleading impressions among laypersons.

For example, consider this transcript of my own district's Congressman, Hank Johnson, grilling Gen. Alexander Keith on domestic surveillance. In the exchange, Gen. Alexander repeatedly denies that the NSA has the capability to do things like spy on the content of American's emails.

Given the revelations about Verizon, this must mean that Gen. Alexander was lying, right? Well, no, it doesn't. Nothing that Gen. Alexander said in this exchange is inconsistent with what has been revealed about Verizon.

In American law, there is a big distinction between government collection of "call records" and government collection of content information. It may be the case that the NSA is not collecting the content of American's domestic telecommunications, wholesale. If they aren't, all of the answers that Gen. Alexander provided Rep. Johnson may be true. However, it may be the case that the NSA is vacuuming up information about who called who. The legal barriers to doing so are much lower than the legal barriers to collecting content. A statement by a government official that content is not being collected or that content is not being monitored should not lead to the conclusion that call records are also not being collected or monitored.

Furthermore, The Fourth Amentment doesn't always require a warrant. The Fourth Amendment has two clauses. The first says there will be no "unreasonable" searches. The second sets the requirements for a warrant. The text doesn't explain when a warrant is required. Presumptively, a warrant is always required, but the courts have found a variety of contexts where they have seen fit to conclude that warrants aren't required.

One such context is "national security." Cases from 1960's and early 1970's may authorize warrantless surveillance for national security reasons involving foreign powers.

Another context regards business records such as the sort of "call records information" at issue with this Verizon revelation (Google "Third Party Doctrine.")

Collection by the government of call records information in national security contexts is regulated by acts of Congress - it is not considered to be unconstitutional, but it may be illegal.

Consider, in light of those facts, the following comments by the previous NSA director, Gen. Hayden, regarding the NSA Terrorist Surveillance Program revealed in 2005:

What we did was never challenged with regard to its constitutionality – what we did was challenged because of some people claiming it was inconsistent with the FISA act with statute, not with the constitution. The FISA act, the one we’re alleged to have walked all over, was amended in 2008 and the changes made to the FISA act in 2008 were far more dramatic, far more far-reaching than anything President Bush authorised me to do under his article 2 commander-in-chief authority.

A statement by a government official that a surveillance program does not violate the Constitution should not be taken to mean that a surveillance program is not illegal. A statement by a government official that a surveillance program is not illegal should not be taken to mean that it is not pervasive.

The fact that this Verizon program was authorized by a judge means that it may, in fact, be legal, and that it was performed with the sort of judicial oversight that a warrant requirement is meant to ensure. On the basis of those conclusions, some people may argue that there is no problem here.

I am not personally convinced that the Constitution ought to be interpreted to allow for this sort of broad domestic surveillance, nor do I think that it ought to be legal, and in my mind, assurances that it is Constitutional and that it is legal do little to comfort my concerns.