America's Take On the Fourth Amendment and the NSA

The original revelations about spying on the AP have been overshadowed by the recent confirmations of the NSA's long suspected and extensive domestic spying activities. The opinion of the public appears to be strongly in favor of improved privacy protections.
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Fourth Amendment of the US Constitution.

In mid-May it was revealed that the US Department of Justice (DoJ) had subpoenaed two months of call records for 20 phone numbers used by over 100 Associated Press (AP) reporters as part of an investigation into a leak of classified information. It was later revealed that the Doj had obtained search warrants to read Fox News reporter James Rosen's emails, going so far as to label him a "co-conspirator" in the case. As a result YouGov decided to poll the US public for their attitudes towards the US Constitution's 4th Amendment. The first amendment is also pertinent insofar as it guarantees freedom of the press; hopefully we can cover the first amendment in more detail in a future YouGov poll. This article contains results from a poll of 1000 nationally representative US residents conducted over the period of May 20th to June 6th. On June 5th news broke that the NSA had obtained a top secret court order to obtain call records for all Verizon customers. Only 5 responses were collected on June 5th and June 6th so these results were essentially unaffected by that breaking news.

Attitudes Towards the DoJ Obtaining the AP's Phone Records

Respondents were asked for their specific opinion on the AP phone records investigation.

Recently it was reported that the Department of Justice, based on a subpoena authorized by Deputy Attorney General James Cole, obtained numerous phone records on AP reporters. This was in connection with the investigation of a leak of classified information to the AP.

Which statement best captures your position on the Department of Justice obtaining these records?

Support for requiring a warrant is at similar levels to a general rejection of the DoJ's searches. Support for the DoJ's efforts is only at 19%. Blacks were nearly twice as likely as whites and four times as likely as hispanics to support the DoJ (33% vs 19% and 9% respectively). Republicans were the most likely to believe that the investigation went too far (39%). By comparison 26% of Democrats thought the investigation went too far. Independents were close to Republicans at 38%.

Assessing the Tradeoff Between Privacy and Security

Respondents were asked "Which statement comes closer to your view?" (in random order)

This shows that the public strongly favors restricting the government's access to their private information. Blacks were again most supportive of the government (45% supported the current level of access) while independents were most in favor of making it harder for the government to access their information (63%). Democrats were more reserved at 49% (perhaps in support of the President) while Republicans were close to independents at 62%.

Views Towards the Patriot Act

The Patriot act has been controversial since its inception in 2001. Respondents were asked about their views towards this act as well after having the act described to them. The Pew Research Center has been tracking this question since 2004; their results are included here for comparison.

The PATRIOT Act was signed into law by President George W. Bush on October 26, 2001. The act, as a response to the terrorist attacks of September 11th, significantly reduced restrictions in law enforcement agencies' gathering of intelligence within the United States; expanded the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadened the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the PATRIOT Act’s expanded law enforcement powers can be applied.

On May 26, 2011, President Barack Obama signed the PATRIOT Sunsets Extension Act, a four-year extension of three key provisions in the PATRIOT Act: roving wiretaps, searches of business records, and conducting surveillance of "lone wolves" — individuals suspected of terrorist-related activities not linked to terrorist groups.

Which comes closer to your view of the Patriot Act?

Again blacks were more likely than whites and hispanics to consider the patriot act a necessary tool (58% to 42% and 40% respectively) but Republicans were the most supportive group of all (63%). Democratic support was at 45% while independents were least supportive at 32%. Republicans seem to be quite torn on these issues, strongly wanting the government to have less access to their data but simultaneously providing the strongest support for the Patriot Act. Perhaps the fact that it was explicitly credited to President Bush influenced them on this question.

Who is Protecting the Fourth Amendment?

Respondents were asked to rate various figures and organizations (in random order) as defenders of the fourth amendment on a scale of "excellent defender" to "extremely poor defender." The results are shown in the following table, ordered from strongest to weakest.

Except for the ACLU and the Supreme Court, all other organizations and public figures were seen by a majority of respondents to be poor or extremely poor defenders of the fourth amendment.

The position of the US Senate here (68% total negative) is somewhat unsurprising given that senators from both parties have been strong advocates of domestic spying programs in the past. On Thursday, June 6th, Sen. Dianne Feinstein (D-CA) and Lindsay Graham (R-SC) strongly defended the NSA's program of collecting call records from the phone companies. Independents were particularly critical of the Senate.

Opinion on the ACLU is highly polarized, with 34% of Democrats rating them as excellent defenders of the fourth amendment vs. only 8% of Republicans. Blacks also rated the ACLU highly.

Republicans as well as independents were most critical of Obama's protection of their fourth amendment rights while Democrats were much more favorable. Republicans were extremely critical of AG Eric Holder as well. Blacks showed majority support for the AG as did Democrats overall.

The press took a beating on this question as well, with their 36% total positive rating falling behind even the NSA at 39% and just behind Eric Holder at 37%! It's important to note that it's the British press, particularly the Guardian, that's been at the forefront of breaking stories on US domestic spying over the years. The Guardian also played a strong role in revealing News Corp's phone hacking activities in the UK so they clearly have deep and patient interest in developing these kinds of stories. It's quite possible that the US public recognizes that until the press themselves (AP and Fox News) became the subject of investigations, the US press appeared to show little interest in this topic.

Tracking Our Calls

The survey we fielded included a battery of questions asking respondents for their personal view on the constitutionality of various government actions. The one most pertinent to the news about the NSA's program to capture call metadata was:

Based on your understanding of the Constitution, what do you believe the police, FBI, IRS, US Customs, or other authority needs in order to track who you communicate with (not what is said)

The FISA court actually produced a court order which was not one of the choices asked of respondents. 39% of respondents feel that a warrant should be required for this kind of data. A warrant requires probable cause to be shown and it's clear that the hoovering of call metadata is indiscriminate in its scope and that probable cause is not available.

"Supervisors" are not called out in the constitution at all so its interesting that 5% of respondents believed that permission of a supervisor carries some constitutional weight.

Some Good News

While the Fourth Amendment is nowhere near as famous as the First and Second Amendments, 45% of respondents were able to correctly identify the Fourth Amendment from a randomized list of summaries of the Bill of Rights. This list included two fake amendments as well. Recognizing the 4th amendment was highly correlated with education level and also with age up to 65, declining after that. Men were much more likely to identify the amendment correctly than women (51% vs. 39%). Republicans were slightly better than Democrats at getting this question correct (42% to 37%) but independents beat them both at 54%.

Comments from Respondents

Several questions provided opportunities for respondents to comment. Here's a sampling of quotes from respondents who agreed that their comments could be published:

  • Although I have nothing to hide, which is also the position of many of my friends I do not want to sacrifice freedom for safety.
  • We give away all our rights under the Patriot Act. It ain't the land of the free any more.
  • There is abuse of this amendment by organizations going after people who don't agree with them and going after those the government doesn't like.
  • The people who wrote the 4th amendment did not foresee terrorism. Matters of national security should have more permissive rules, unlike other matters that should follow the 4th amendment. The worry is that the government would use the laxer rules of the formers to push harder on the latters.
  • The war on terrorism has eroded our right of privacy.
  • The excuse of "making us safe" as a pretext to destroy our 4th amendments rights is pervasive in government today.
  • There should be due process e.g. A warrant issued by a judge to access anyone's private information unless national emergency or threat to a human life.
  • Balancing the rights of ordinary U.S. citizens against those who would destroy those same citizens is a tenuous task that is exacerbated by the exponential growth in technology.
  • I think many in the high executive branch believe the 4th Amendment is an annoyance.
  • In the age of terrorism and jihad, weighing the right to privacy and the need for security is a delicate balancing act, however this administration's use of government power against opposing viewpoints represents a very disturbing trend.
  • I believe that slowly our rights are being taken away to the point the government believes they can do anything because they say they don't have to obey the law, the constitution or the bill of rights....just like Animal Farm.
  • We currently have very little effective 4th Amendment protections. It is discarded at the whim of police, TSA, and other government officials. It is treated it as an outdated notion. This loss of privacy of your person and possessions is a dreadful loss that should not be tolerated by any freedom loving individual. Weakening this right weakens all of them.
  • Part of me wants to give up a small amount of freedom in order for the government to have access in finding out issues dealing with national security but at the same time, our freedoms are what makes America so unique. Are the terrorists winning the battles by taking away part of our freedoms?
  • There are two sets of laws in the US one for the ruling class which exempts them from following the law like everyone else, the other for the masses.
  • The Patriot Act has let the government run amok and threatens our civil liberties with very little excuse to do so.
  • I don't think the government should have access to our private information and communications UNLESS they can prove to a judge that someone is a terror threat to citizens of the US. That right is should be reserved for US citizens only and not foreigners or immagrants that became citizens. All immigrants should be opened for profiling by the FBI forever!
  • Most of us don't have any 'deep dark secrets' to warrant being recorded, in other words, so what if they do? IF it saves ONE life isn't it worth it? Oh yes it is!
  • It seems to me we either believe in the rights articulated in the Constitution or we do not. However, the way we implement these principles relative to enemies of out country, here and abroad, is very problematic. It requires a degree of wisdom/integrity I don't think our leadership is capable of currently. And even more problematic since our own citizens are often denied these rights routinely.

Stay Tuned for More

The original revelations about spying on the AP have been overshadowed by the recent confirmations of the NSA's long suspected and extensive domestic spying activities. The opinion of the public appears to be strongly in favor of improved privacy protections but the federal government appears to be in full "Nothing to see here, move along, it's for your own protection" mode. It remains to be seen whether public opinion will be strong enough to spur changes.

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