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Abstract

The Fourth Amendment to the United States Constitution provides the people the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” which means the people have the right to freedom from warrantless government intrusion, or trespass, into their persons, houses, papers, and effects. Most people are familiar with persons, houses and papers, but the term “effects” is unfamiliar to many. The United States Supreme Court recently explained that personal property, such as one’s vehicle, constitutes an effect under the Fourth Amendment. The government of the United States has not always lived up to its obligations under the Fourth Amendment. For example, the internment of Americans citizens of Japanese ancestry during World War II under President Roosevelt’s Executive Order 9066 stands as an example of the government and courts failing to protect citizens’ constitutional rights.

The National Security Administration (NSA) has received criticism for collecting call detail records, or metadata, about phone calls made by American citizens in an attempt to target and eradicate terrorism, both at home and abroad. Thus far, courts have not explicitly examined whether citizens’ metadata is an effect within the meaning of the Fourth Amendment. This article examines whether the metadata collected and stored by the NSA is an effect within the meaning of the Fourth Amendment. The authors conclude that it is, and that bulk collection of metadata conducted either without consent, exigent circumstances, and probable cause, or without a warrant, is a trespass that implicates the Fourth Amendment.

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