In a March report, the Congressional Research Service said that the federal government's monitoring of network traffic under the Einstein network monitoring and intrusion detection and protection program could constitute unreasonable search and seizure under the Fourth Amendment, though it noted that the government has strong arguments that the program is constitutional.
Einstein, operated by the Department of Homeland Security with some help from the National Security Agency, is a cross-government effort to monitor federal networks for cyberattacks. As part of those efforts, the system monitors all communications, including federal employee communications with private citizens, which, according to the report, "may trigger Fourth Amendment guarantees to the right to be free from unreasonable searches and excessive government intrusion," despite the steps the government has put in place to mitigate privacy concerns.
Einstein monitors and copies all network activity into and out of federal networks, including the content of emails to and from government officials' work and private emails and any communication on Twitter and Facebook. Einstein then scans the data for known malware and other attacks, and saves the data when it discovers an attack or attack vector.
The Fourth Amendment guarantees people's right "to be secure in their own persons, papers, and effects, against unreasonable searches and seizures" and was written to protect people against the government in particular. The Amendment only applies when a government act is a "search or seizure," and is unconstitutional only where unreasonable, which turns partially on whether the individual asserting that his or her rights were violated had a reasonable expectation of privacy.
Although courts have found that Internet users don't have privacy expectations for the routing information of their Internet communications, which could indicate who someone is communicating with, the content of that communication is another issue altogether, and the fact that EINSTEIN actually stores that content is a cause for concern, according to the report.
The issue could be concerning from a legal perspective for both federal employees and for private citizens whose communications might be swept up as part of the monitoring effort, the report says. The Supreme Court has ruled that employers may read employees' communications if the monitoring is conducted for a "noninvestigatory work-related purpose" and isn't "excessively intrusive," but the report notes that the purpose could be questioned, and there are "reasonable argument[s]" that monitoring of all employee communications is intrusive. The report indicates that more serious concerns arise from the monitoring of private communications with the government.
Although the Obama administration has steadfastly defended Einstein's constitutionality, the program's adherence to the Fourth Amendment has been questioned in the past. As early as 2010, Brookings Institution fellow Jack Goldsmith, professor of law at Harvard Law School, wrote that the Fourth Amendment is a "significant hurdle" for the Einstein program.
More recently, this January, Constitutional rights watchdog The Constitution Project flagged concerns about whether the program might violate the Fourth Amendment, and said that future plans to expand the program and cybersecurity efforts like it could raise even further questions.
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