I thought the current lawsuits claim to prove this by asserting that:
- The NSA got access to all of Verizon's customer metadata (as indicated by a leaked FISA Court decision).
- The plaintiffs are customers of Verizon.
- Therefore the plaintiffs' metadata was provided to the NSA.
Thus under the theory the government follows, the activity that you can prove happened is not a search. So you have no standing to sue. And if they look you up later (of course filing appropriate warrants with the FISA court), then you can't prove it happened, so you still can't sue.
It's unfortunate that there is such a disconnect between real and virtual policies. People who can't handle the abstraction shouldn't be making decisions regarding it.
Previously, search in a legal sense combined two elements that we've always blurred together:
1. Collection of data
2. Intepretation of the data.
So when a human searches, they are comingled. Light enters the eye, is processed into images in the brain, is elevated into consciousness and draws connections in the front cortex and elsewhere.
But an automated system can do it in two stages. The pictures could be recorded and never analysed.
The question is whether the act of searching includes both data gathering and analysis as inseparable parts or whether they are seperable. And if they are seperable, where does the search reside: in the data, or the analysis?
Reversing your analogy, the NSA approach is like the police having housefly-sized drones in every house, keeping HD video of everything that goes on. Most of the time, nobody sees it. The data is gathered but not analysed.
Is that search?
The issue here is indiscriminate copying of data from third parties through whom your information traveled. Under the government theory it is not a search (because nobody has looked at it), it is not a seizure (because you still have your data), and your person, house, papers and effects were not touched. Therefore it is an activity that lies outside the protection of the Constitutional phrase, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...
Ran into the same logic fighting to protect the secret ballot.
Many jurisdictions tie ballots to voters thru unique barcodes. Excellent for ballot tracking, accountability. Terrible for voter privacy.
Government argued that although data is collected, it's never looked at, so no violation of privacy.
Ditto prescanning ballots before election day. It's not "tabulation" until they run the final report. All the draft reports beforehand don't count.
These Kipling "just so stories" logic makes me nuts.
Okay, then let's start by challenging this legal position. Just because they interpret something a certain way doesn't mean we have to accept it.
I bring up the government's theory not because I agree with it, but because it is virtually impossible to understand their public statements without understanding their reasoning.