In defending their mass domestic surveillance program the NSA is arguing, on the one hand, that the Fourth Amendment doesn't apply to their activities, while simultaneously arguing that the strict limits that the Fourth Amendment imposes on surveillance are sufficient to protect the First Amendment rights of citizens. They cannot have it both ways.

The domestic meta-data surveillance program collects everyone's call records. These records reveal who you communicate with, how often, and when - essentially, what your associations are with other people. Of course, you have a right to Freedom of Association, guaranteed by the First Amendment to the United States Constitution. Its obvious that if the government is keeping a record of all of your associations, which may be used against you in the future, this might deter your exercise of your First Amendment rights.

In court filings defending the meta-data program, the NSA responds to this concern by arguing that we don't need to worry about the negative impact that meta-data surveillance might have on our Right to Freedom of Association, because the Fourth Amendment protects us from unreasonable surveillance.

"The Supreme Court and Ninth Circuit have held... that when governmental investigative activities have an indirect impact on the exercise of First Amendment freedoms, those interests are safeguarded by scrupulous adherence to Fourth Amendment standards... Accordingly, “surveillance consistent with Fourth Amendment protections . . . does not violate First Amendment rights, even though it may be directed at communicative or associative activities.”

In other words, they are saying that even though spying can have a negative impact on our First Amendment rights, that impact is acceptable because spying is only authorized by the Fourth Amendment in the narrow circumstances where it is necessary. In the past, people have argued that government surveillance of their speech or political and religious activities can have a negative impact on their Constitutional rights, even when that surveillance was authorized by a warrant. The courts addressed this concern in holding that the Fourth Amendment's probable cause and warrant requirements create a framework that limits the impact that government surveillance has on First Amendment activities, and the remaining impact is acceptable.

The government is trying to reference this logic in a context where they are simultaneously arguing that the Fourth Amendment's probable cause and warrant requirements do not apply! The government has repeatedly asserted that Americans have "no legitimate expectation of privacy in telephony metadata" and that "even the 'collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.'"

If the Fourth Amendment does not apply to the telephony meta-data program, than "scrupulous adherence to Fourth Amendment standards" isn't going to safeguard people's First Amendment rights, because we aren't actually adhering to those standards! If we are going to conclude that the Fourth Amendment in no way limits the government's collection of meta-data, than we're going to have to consider the First Amendment impact of that meta-data collection on its own, without relying on Fourth Amendment standards to mitigate it.

Hopefully the courts will think carefully enough about this issue to recognize the problem with the Government's argument here. I fear that often people who seek to rubber stamp this activity will buy into any argument they can get to rationalize it. This one is particularly thin and should not be allowed to stand if we are serious about considering the legal and Constitutional implications of mass surveillance.