It seems to me that the fundamental issue in the debates about government data collection is the question of the rights to privacy that US citizens can expect. Our notions about privacy change somewhat over time and in the context of different places.
I grew up in a small town in Alabama in the 1950s. Everybody gossiped about everybody else all of the time. The telephone system was the old fashion kind where you cranked the phone to get the operator who would connect your call. If you asked for Mary Smith she'd tell you that she wasn't home. She was over at Myrtle Jones playing bridge and she'd ring over there. Everybody knew that she listened in on calls all the time. Privacy there meant people having enough manners not to say things to your face that they said behind your back. Later I spent 25 years living in San Francisco. In a complex and diverse urban environment privacy had very different meanings.
The technology that made it possible for Miss Pitts to listen in on Mrs. Smith and Mrs. Jones also made it possible for J. Edgar Hoover to snoop on lots of people. Today communications technology changes so rapidly that few people can completely keep up with it. With all the conveniences that it brings us, it also brings threats and compromises to our personal privacy.
I has been said that as soon as two people know something it ceases to be a secret. We made decisions about divulging private information all the time. Sometimes we make choices that we later regret, but we think of it as information over which we should have personal control. When other people become privy to our information without our consent, most of us become uncomfortable about that.
Now we are becoming increasingly more aware of the involvement of government agencies in accessing and collecting this data. We didn't check a consent form for the NSA. Many people seem convinced that they are clear about what constitutional rights they have to privacy. They usually base their views exclusively on the 4th amendment to the US constitution. The matter is really not that simple. This is a useful legal summary from the University of Missouri at Kansas City.
The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.The site gives a basic review of case law in the area. If the judicial conservatives who want to limit the constitution's reach to the strict intentions of the original framers had their way, we would be an advanced industrial society trying to live with a legal system suited to the frontier. Case law is the system by which the courts have adapted to application of constitutional law to changing times and circumstances. It is continually changing and subject to judicial interpretation.
There is a body of case law dealing with telephone conversations. Certain rights to privacy in the absence of a court issued warrant have been established. In other areas such as meta data the courts have held that the information is not private. The Patriot Act attempted to apply the legal standards developed around telephones to the internet across the board. There are various reasons why this is probably not a good idea. One of them is that meta data in internet communications works differently than it does in traditional telephone networks.
President Obama's contention is that the programs being carried out by the NSA are both legal and constitutional. Such judicial reviews of them as have been done have been carried out by the secret FISC. Unlike other court decisions, the public has no access to them. It is possible that a majority of SCOTUS might eventually declare the operations to be legally sound. It is not possible to know what they would do with any great certainty. So far they have avoided dealing with the issue. However, that does not mean that the law has to be that way. Congress has the power to change it.
What is needed is a discussion and debate on how we can best live with modern technology. There isn't a clear and simple guarantee to privacy in the constitution. Even if there were it, like other civil rights, has to be balanced against other public concerns. It is a subject that we have allowed to be swept under the rug. The internet isn't going away. In fact its reach into our lives is becoming ever more pervasive with the development of things like smart energy networks.