After pondering this issue, I am inclined to side with Jay Manifold
. The kicker is the Fourth Amendment: there has to be probable cause for the government to make that search. So what would constitute probable cause? Sufficient grounds to identify a member of al-Qaeda or other entity at war with us
So how does one establish such grounds? Jay eliminates a notoriously unreliable means of identifying suspects:
"Data mining" for terrorism -- the idea that searching through masses of data can find terrorist patterns or suspicious anomalies -- is provably flawed. Probability theory shows that searching for extremely rare events or conditions using even slightly flawed formulae will return mostly false positives. In other words, investigators searching through data about millions of Americans for the very few terrorists will send themselves on wild goose chases after innocent law-abiding citizens, with only the slimmest chance of stumbling onto terrorists or terrorism planning.
The NSA has to round up terror suspects by other means. And when it does so, it has probable cause to go to the phone companies and request phone records to and from locations associated with those suspects. That will square with the Constitution, and it will save the NSA the time that would be wasted plowing through reams of useless data.