LogicSoDeveloped
Bluelighter
The best hope for what remains of Americans' privacy may lie in Supreme Court Justice Sonia Sotomayor's concurring opinion in a huge 2012 privacy case.
In United States v. Jones, the nation's highest court heard how police installed a GPS tracking device on drug suspect Antoine Jones’ Jeep without a valid warrant and then monitored him for four weeks.
The high court ruled unanimously that the GPS tracking violated Jones' Constitutional guarantee against unreasonable searches — but only because police had to invade his physical property to attach the device.
In a concurring opinion, Sotomayor went out of her way to point out that the government doesn't have to physically intrude on somebody's property in order to violate Fourth Amendment rights.
She then argues that all the information people voluntarily disclose to some member of the public for a limited purpose — such as a business transaction for phone or Internet — is not automatically disentitled to Fourth Amendment protection.
The metadata precedent
The NSA's collection of metadata — telephone numbers dialed and other information* — was first allowed by a 1979 Supreme Court ruling called Smith v. Maryland. In that case, the court said it was legal for telephone companies to record numbers dialed from a telephone line — and give those numbers to the cops.
The Supreme Court ruled customers shouldn't expect that information to be private since they've already disclosed it to a third party — the phone company.
From Smith v. Maryland:
When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police.
The Obama administration's Justice Department has used this argument to justify warrantless GPS tracking, arguing in January 2012 that customers can't expect cellphone location records to be private since they technically already "gave" that information to their wireless providers.
(That argument was first shot down in August 2005 when a federal judge denied a Justice Department request to constantly track a cellphone user's location without a warrant under the Patriot Act.)
After Edward Snowden leaked a court order compelling Verizon to hand over data on all calls in its system, the U.S. government acknowledged that it relies on the "business records clause" of the Patriot Act (i.e. Section 215) to collect metadata about every phone call made or received by residents of the United States.
*Editor's note: Metadata include telephone numbers dialed, telephone numbers of incoming calls, the duration of calls, and (potentially) location. Despite the administration's position, the NSA contends that the spy agency collects U.S. metadata but chooses not to collect location data.
Sotomayor's argument
Sotomayor treats Smith v. Maryland and warrantless GPS tracking very differently from the Obama administration that appointed her.
It's high time for the Supreme Court to reconsider the notion that people have no reasonable expectation of privacy in information they voluntarily gave up to third parties, Sotomayor said in her concurring opinion.
"I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year," Sonia Sotomayor wrote.
"This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," she wrote.
Sotomayor recognizes that location tracking generates a precise record of a person’s public movements and reveals details about familial, political, professional, religious, and sexual associations. The government "can store such records, she adds, "and efficiently mine them for information years into the future."
People may be afraid to exercise the rights of free speech and free associations guaranteed by the First Amendment since they know the government can freely collect personal information, she writes.
Read more: http://www.businessinsider.com/the-best-hope-left-for-american-privacy-2013-8#ixzz2bZmousQR
In United States v. Jones, the nation's highest court heard how police installed a GPS tracking device on drug suspect Antoine Jones’ Jeep without a valid warrant and then monitored him for four weeks.
The high court ruled unanimously that the GPS tracking violated Jones' Constitutional guarantee against unreasonable searches — but only because police had to invade his physical property to attach the device.
In a concurring opinion, Sotomayor went out of her way to point out that the government doesn't have to physically intrude on somebody's property in order to violate Fourth Amendment rights.
She then argues that all the information people voluntarily disclose to some member of the public for a limited purpose — such as a business transaction for phone or Internet — is not automatically disentitled to Fourth Amendment protection.
The metadata precedent
The NSA's collection of metadata — telephone numbers dialed and other information* — was first allowed by a 1979 Supreme Court ruling called Smith v. Maryland. In that case, the court said it was legal for telephone companies to record numbers dialed from a telephone line — and give those numbers to the cops.
The Supreme Court ruled customers shouldn't expect that information to be private since they've already disclosed it to a third party — the phone company.
From Smith v. Maryland:
When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police.
The Obama administration's Justice Department has used this argument to justify warrantless GPS tracking, arguing in January 2012 that customers can't expect cellphone location records to be private since they technically already "gave" that information to their wireless providers.
(That argument was first shot down in August 2005 when a federal judge denied a Justice Department request to constantly track a cellphone user's location without a warrant under the Patriot Act.)
After Edward Snowden leaked a court order compelling Verizon to hand over data on all calls in its system, the U.S. government acknowledged that it relies on the "business records clause" of the Patriot Act (i.e. Section 215) to collect metadata about every phone call made or received by residents of the United States.
*Editor's note: Metadata include telephone numbers dialed, telephone numbers of incoming calls, the duration of calls, and (potentially) location. Despite the administration's position, the NSA contends that the spy agency collects U.S. metadata but chooses not to collect location data.
Sotomayor's argument
Sotomayor treats Smith v. Maryland and warrantless GPS tracking very differently from the Obama administration that appointed her.
It's high time for the Supreme Court to reconsider the notion that people have no reasonable expectation of privacy in information they voluntarily gave up to third parties, Sotomayor said in her concurring opinion.
"I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year," Sonia Sotomayor wrote.
"This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," she wrote.
Sotomayor recognizes that location tracking generates a precise record of a person’s public movements and reveals details about familial, political, professional, religious, and sexual associations. The government "can store such records, she adds, "and efficiently mine them for information years into the future."
People may be afraid to exercise the rights of free speech and free associations guaranteed by the First Amendment since they know the government can freely collect personal information, she writes.
Read more: http://www.businessinsider.com/the-best-hope-left-for-american-privacy-2013-8#ixzz2bZmousQR
