Surveillance

Judge Says the NSA Can Look at Your Phone Records Because They're Not Yours

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Today a  federal judge in New York rejected the American Civil Liberties Union's challenge to the National Security Agency's routine collection of information about every telephone call placed in the United States. U.S. District Judge William H. Pauley conceded that "such a program, if unchecked, imperils the civil liberties of every citizen," since "such data can reveal a rich profile of every individual as well as a comprehensive record of people's associations with one another." But he said he was bound by the Supreme Court's ruling in the 1979 case Smith v. Maryland, which held that the Fourth Amendment does not apply to telephone metadata indicating who calls whom, when, and for how long. "This Court consistently has held," the justices said in Smith, "that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Under this precedent, Pauley said, no one has a Fourth Amendment right to stop the government from examining his telephone records, which are not really even his:

The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata….

The business records created by Verizon are not "Plaintiffs' call records." Those records are created and maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information….

The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.

Pauley seems uncomfortable with this conclusion. He emphasizes that the government uses the phone call records sparingly, uses them only to investigate terrorism, needs a comprehensive database for that purpose, follows "rigorous minimization procedures," and unnecessarily compromises innocent people's privacy only by accident. Under the "third party doctrine" enunciated in Smith, none of those debatable points matters, because the government's perusal of information you voluntarily share with someone else cannot possibly implicate your right to be free from unreasonable searches and seizures.

"Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness," Pauley says toward the end of his 54-page opinion. Not really, at least not in the sense of balancing the government's interests against an individual's privacy claim. According to Pauley's reading of Smith, the relevant question is whether you have undergone a search when the government looks at your phone records. The Supreme Court says you haven't, so neither reasonableness nor the Fourth Amendment enters into it.

U.S. District Judge Richard Leon, who issued a preliminary injunction against the NSA's phone record dragnet last week, tried to escape the implications of Smith by arguing that the information at issue in that case (the numbers dialed by a robbery suspect over a two-day period) was much narrower than the information collected by the NSA (metadata for every phone call made during the last five years). Leon also argued that the ubiquity of cellphones has dramatically increased the volume of metadata and therefore the potential for invading people's privacy. But as I noted in my column last week, the sweeping terms of the third party doctrine do not seem to leave any room for such considerations.

As the ACLU pointed out, five justices indicated in the 2012 case U.S. v. Jones that the sheer volume of information collected can make a constitutional difference, impinging on a legitimate expectation of privacy that would not be implicated by a smaller amount. But the Court's decision in that case, which held that using a GPS device to track a suspect's car for a month counts as a search under the Fourth Amendment, hinged on the physical intrusion required to attach the device. The Court has not yet held that collecting the same sort of information through methods that do not require such a trespass implicates the Fourth Amendment, let alone overturned Smith or renounced the third party doctrine.

It really should, especially since phone records are just one small part of the personal information that the doctrine leaves vulnerable to government snooping. According to the Court, unless a statute says otherwise, the government is free to collect, examine, and analyze any information about you that is not stored on your own property. That includes cellphone location data, email, text messages,  photos, videos, journals, Web searches and browsing histories, financial and medical information, and literally anything else you have stored on a remote server or a computer in someone else's possession. All of that information gets only as much protection as legislators decide to give it—which in some cases is a lot less than you might think.

Addendum: A commenter argues that "the third-party doctrine makes total sense from a constitution standpoint," because the third party holding your information "can dispense with their property as they please." If you share information with someone for a particular purpose and receive assurances that it will be used only for that purpose, he does not have the right to do as he pleases with it. But under the third-party doctrine, the government does. So if I share information with my doctor or psychiatrist, and he promises to keep it confidential, that does not prevent the government from reading my records at will, unless there is a specific statute restricting access to that information.

The government likewise is free to read my remotely stored email without a warrant unless one is required by statute (and it's not clear that one is), even though it would need a warrant under the Fourth Amendment to read my paper mail. It is hard to make sense of that distinction in terms of privacy expectations, which is the standard the Court claims to be using. I would argue that remotely stored personal information is akin to the "papers" protected by the Fourth Amendment. The only difference is that the papers are electronic and entrusted to someone else. Those factors alone should not eliminate Fourth Amendment protection.

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  1. All your everything is belong to us.

    1. Your English is not looking so goot.

  2. According to the Court, unless a statute says otherwise, the government is free to peruse any information about you that is not stored on your own property. That includes cellphone location data, email, text messages, photos, videos, journals, Web searches and browsing histories, financial and medical information, and literally anything else you have stored on a remote server or a computer in someone else’s possession.

    I don’t find it much of an outrage that someone can dispense with their property as they please. I support the passage of the statute, but I see no value in your commentary here, Mr. Sullum. The third-party doctrine makes total sense from a constitution standpoint.

    1. Except that if the NSA really believed they were not violating anyone’s privacy then they would not have kept the meta data program a secret. Also did the NSA not threaten the phone service providers if they revealed the program to their customers? Also if the court rules you have no expected privacy when a third party is involved, why do they need a warrant to search your mail? After all if it is so private why are you trusting another party to read your mail?

      1. Except that if the NSA really believed they were not violating anyone’s privacy then they would not have kept the meta data program a secret.

        Uhh, no, because another good reason for keeping things a secret is that you don’t want your enemies to know you’re doing it.

        After all if it is so private why are you trusting another party to read your mail?

        GREAT QUESTION.

    2. The third-party doctrine makes total sense from a constitution standpoint.

      Since your wife freely shares her vagina with you, surely she would have no reason for objection if I share it as well?

      Just because I allow one party the right to create a record of my activities or access to my information, it does not follow that I have allowed everyone that right.

      1. Since your wife freely shares her vagina with you, surely she would have no reason for objection if I share it as well?

        There’s the 2013 Award Winner for Retarded Analogy of the Year.

        The reason this would bother me is because my relationship with my wife is built on trust, and her “sharing” herself with other men would be a betrayal thereof. Here, you seem to be suggesting that I somehow own a “right of privacy” in my wife’s reproductive organs.

        Go back to the drawing board, Marvin.

        Just because I allow one party the right to create a record of my activities or access to my information, it does not follow that I have allowed everyone that right.

        If you tell me something, I am under no obligation to keep it private for you just because you ask me to. You’re claiming a *positive* right to keep my mouth shut on *your* behalf. That’s not how freedom works.

        1. It’s one thing if said 3rd party gave the information in question to the government free of coercion or interception in transit but, those are the actual points of contention.

        2. The reason this would bother me is because my relationship with my wife is built on trust, and her “sharing” herself with other men would be a betrayal thereof.

          So when you singed up with CenturyLink you gave them permission to share the data that your use of their network created with anybody who comes along? You have no trust relationship with the companies you do business with?

        3. If you tell me something, I am under no obligation to keep it private for you just because you ask me to.

          The verbal agreement probably wouldn’t hold up in court, but if we put it in writing you certainly would. Ever heard of a non-disclosure agreement?

          The question is what reasonable expectation you have that your data will remain private. I haven’t completely read my privacy agreement with my ISP, but I’m pretty sure it doesn’t mention anything about my metadata being handed over in bulk to any government agency without a warrant.

        4. The analogy was off. The government doesn’t want your wife’s body, they want the DNA you deposited therein. Since you gave it to her freely, you now have no expectation of privacy concerning it anymore?

        5. You also have an expectation of being able to trust your telephone service provider. Retard.

    3. I agree. Having just reread Smith, its reasoning is still sound. You have no privacy right to the phone numbers you dial — you don’t even own them.

      That being said, the flip side of the argument is unaddressed by Smith: the people on the receiving end of those phone calls have a legitimate expectation of privacy in their relationship with their phone company, since that’s a private transaction. More particularly, there’s a right of privacy connecting numbers to names; people have unlisted numbers for this exact reason.

      Law enforcement can connect names to those numbers — with an administrative subpoena. See 18 USC 2703. That’s already a violation of the Fourth Amendment, because obtaining the subpoena does not require going in front of a judge. Law enforcement can also get the name using a court order or a warrant, which is fine by me.

      1. A lot of things have happened since 1979, though, including the Telecommunications Act of 1996, which grants a privacy interest to the consumer in his phone records and requires the phone company to protect that information (Section 702 of the Act).

        Here’s a press release from the FTC which proclaims the awesomeness of the FTC in protecting the “confidential phone records” of consumers from evil private investigators back in 2008: http://www.ftc.gov/news-events…..nts-barred

    4. “I don’t find it much of an outrage that someone can dispense with their property as they please.”

      Unless clients specifically signed a contract authorizing the release of information, then all information pertaining to a client held by a provider of some kind of professional service provider should be considered confidential- if the same ethical (and legally actionable) standards from my profession are to be applied to communications. Which they should.

    5. Are communications subject to a privilege, such as lawyer-client, physician-patient, husband-wife third party communications that have no reasonable expectation of privacy?

      What about contents of safe deposit boxes or other confidential third-party custodial arrangements?

      What about leaving your private letter on your desk in your leased house? That isn’t “your” premises. You are renting it.

      Under this case’s reasoning, the answer is “yes” to all. All of those examples involve “voluntary” transactions. None of that information is private under this opinion. Not just from the NSA it seems, but from law enforcement, period. No warrant is required to obtain it. The police can go into a bank and instruct the bank’s manager to pop open that box because there might be ‘terrorism’ in it.

      Reasonable expectation of privacy is decent legal standard. It is being misapplied. There should be a reasonable expectation of privacy of everything that isn’t voluntarily published to the world. That would include a contract of adhesion from a quasi-utility.

      To suggest that I have no reasonable expectation that contractually private is private is seems like an ex-post justification for otherwise Unconstitutional law enforcement (i.e., laziness) activity by the government than some logical conclusion that an intelligent person would arrive at honestly.

  3. I’m a little more familiar with this in terms of medical records. Even before HIPPA, you own your information in a medical record–even if the hospital in question owns the physical record itself. The FBI used to come by periodically asking for information, and no matter what threats they made, we had to ask them to go get a subpoena, since we could share a patient’s information without the patient’s consent or a subpoena from a judge.

    The only exception to that was for billing. People have a right to see what they’re paying for, and if your insurance company is paying for your care, then they have a right to see what they’re paying for. However, even then, the insurance company couldn’t share the information in a patient’s medical record with law enforcement unless a) there was a signed consent form from the patient or b) the law enforcement agency in question got a subpoena.

    I don’t see why billing records for telephone services would be fundamentally different.

    1. because terrorists. And FYTW.

      1. The third party doctrine means your data is only granted statutory protection rather than Constitutional protection and since we all know statutes mean whatever the hell the executive branch agencies say they mean, the NSA would argue that their interpretation of legislation grants them the right to violate every law known to Man. Probably including laws of physics.

        1. True, but the lack of constitutional protection stems from not having a basis for the expectation of privacy at the time of the Supreme Court ruling. That’s changed since Smith and if the hooded ones weren’t beholden to precedent (when it suits them) and statist bootlickers, they’d overturn Smith.

        2. “So if I share information with my doctor or psychiatrist, and he promises to keep it confidential, that does not prevent the government from reading my records at will, unless there is a specific statute restricting access to that information.”

          What I’m trying to figure out is who this ruling is addressed to.

          When I was medical records guy, like I said, I had to protect the hospital from people suing us–for cooperating with law enforcement.

          The question wasn’t whether law enforcement could read your information. The question was whether a private party could be sued for disclosing your private information to law enforcement–and the answer was always “yes”.

          Is there a law that protects Verizon from getting sued for complying with law enforcement–without a subpoena?

          I understood there was, and if there is, then that should be the target for change. If there’s no sunset provision in that law, then one needs to be added, and if there already is a sunset provision, then we need to target that date so this absurd hell doesn’t last forever.

          1. There is now. It passed a few years ago when this shit started seeing the light of day and is retroactive.

            1. Well there’s the problem!

              Let’s fix it.

              Repeal that law.

              Put a sunset clause on it or something.

      2. Yep, they’re talking about the Telecommunications Act of 1996. Which, as far as I can see, does not have the now-seemingly-ubiquitous “law enforcement exemption”, but does allow the release of information “as required by law”.

    2. great analogy now we just need the lawyers to use it, but since they didn’t think of it they won’t.

    3. The governmental and LE exceptions in HIPPA are broad enough so as to render HIPPA essentially meaningless except as a mechanism to (further) enable coercive and punitive action by the government in levying fines for PHI disclosures to anyone not covered by the exceptions.

      Any two-bit LE jackass with a hard-on for his ex-wife’s new boyfriend can type up an “administrative request” and gain access to “protected” PHI without so much as a by-your-leave from a judge.

      As a healthcare IT guy I have to say that HIPPA is a nothing more than a giant pain in the ass and, along with Meaningful Use, represents exactly the kind of no-carrot-all-stick coercion that used to be the province of failed leadership in third-world shitholes.

      http://www.hhs.gov/ocr/privacy…..s/505.html

  4. You didn’t make that call

  5. Well, seems like the right to privacy that set about Roe v. Wade is moot as well, since you no longer have that right when a third party performs the procedure.

    Point is, how is this any different than privacy in medical procedures?

    The NSA taking metadata is a GENERAL WARRANT. One of the major reasons we fought a war with Great Britain.

    I find it amazing how inept or corrupt our judiciary is. To turn a blind eye, based on some ridiculous interpretation, to a principle that has been a part of this nation since it’s inception is inexcusable. I do not give a damn what the SCOTUS says. The constitution wasn’t written for only brilliant legal minds. It was written so everyone could understand it. Basic reading comprehension shows that our rights mean nothing to our government. It is almost like they’re pushing us towards insurrection at this point.

    1. The judges always seem to forget this part of the Constitution:

      Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      1. but but but but….GENERAL WELFARE!!

        Progtard

    2. It is almost like they’re pushing us towards insurrection at this point.

      We can only hope so.

      1. Unfortunately I fear that such an insurrection would not go well for most of the inhabitants of this country. I think the federal government and various state and local police agencies have been preparing for just such an event since Clinton was in office. I know they had contingency preparations for possible widespread social unrest in connection with Y2K. And look at the militarization of the police that has taken place just since the Democrats have been in power, let alone since 9/11.

        I think Obama and crew would just love any pretext to declare martial law or otherwise clamp down on this country.

  6. …when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information….

    If that’s true, why would anyone open a bank account, or go to a doctor, or write an email? The third party in each case has an affirmative duty to protect the privacy of customer information, and customers clearly expect it to do so. The doctrine is flawed and should be ripped out.

    Oh, that’s right, I forgot — the government doesn’t count, since they’re us. We can trust our rulers to never abuse our private information because only the purest of heart and strongest of mind and cleanest of character ever get hired into government jobs.

    But what about Verizon’s right not to have all their data spied on, if they’re the owners? Or do they just cave, because the government has multiple guns pointed at their head?

    1. And I guess Target can’t be sued for letting hackers get your debit card info, since once you swiped the card, the data belongs to Target?

      1. Just wait until they get around to waterboarding Catholic priests.

        1. No, no – not waterboarding, just extended baptism renewal rites. 🙂

  7. Judge William H. Pauley conceded that “such a program, if unchecked, imperils the civil liberties of every citizen,” since “such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.”

    Secret courts rubberstamping warrants is in no sense a check on domestic spying, particularly in light of the abuses the NSA has voluntarily shared.

  8. The issue with metadata is not who owns the data itself, but who has rights to the analysis of that data. It amounts to digital stalking.

    For example, let’s say you walk along the streets of your neighborhood – no big deal. And you come across a neighbor and say hello and keep going – no big deal. Let’s say their is a busybody neighbor who is constantly looking out through their window and monitoring whoever walks by – kind of annoying, but overall no big deal. Now you have someone who you don’t really know (who has the ability to kidnap you) who walks up to every busybody in the neighborhood and starts asking about you and where you have been – kind of creepy and potentially illegal in this setting.

    So in the scenario above, you are you. Your neighbor is someone you communicate with digitally. Your phone company is the busybody. And the gov is the stalker.

    I wonder if individual people can file a stalking complaint against the gov. Yeah, I already know the answer.

    I don’t understand why the gov doesn’t simply require the communication companies to do all the recording for them. Then once they get their warrant, they can request the data. Still screws our privacy to some extent, but at least it would give the gov the image of being sincere.

  9. A question for our legal scholars:

    If you give your neighbor a key to your home for emergencies and the DEA comes to your neighbor and ask him to let the agents in the house because they don’t have a warrant to kick down the door, have they violated your rights since the neighbor holds the key as a third party so you had no expectation of privacy?

    1. There’s an actual case on this that drew a very fine line on it, but I can’t remember what it was.

    2. A better question: Since the NSA voluntarily shared the information on their data collection operation with a third-party subcontractor named Edward Snowden, do they have any reasonable expectation of privacy in that data?

      1. Snowden obviously would have had to sign an NDA known as an SF-312 to get the kind of clearance he had.

        1. Guess what happens if Google shows the Feds an NDA when they come knocking.

        2. Is a civil contract to break the law (or violate public policy, whatever your religion requires) valid?

          What is misprision?

        3. Snowden obviously would have had to sign an NDA

          And I signed a contract with Google when I agreed to their privacy policy, which I don’t believe indicates that my data will be surreptitiously shared with government agencies.

          Ahh, but I forgot, government can exempt itself from honoring contracts and relieve intermediary data holders of their legal obligation to keep my data private. Nice work, if you can get it.

        4. NDAs are rightfully void if the trustee comes across something unethical, and the trustee is unable to resolve the issue without breaking the NDA.

      2. That’s an easy one. Snowden signed a contract, all you have Jerry is a pathetic constitution and a privacy agreement with your service provider.

        1. Snowden also took an oath to defend the Constitution, and the oath outranks the NDA.

    3. INAL, but probably not. U.S. v Matlock comes close, but there you have a roommate giving consent.

      1. I can’t believe Matlock would ever lose though.

  10. the government uses the phone call records sparingly

    False.

    uses them only to investigate terrorism

    False.

    needs a comprehensive database for that purpose

    False.

    follows “rigorous minimization procedures,”

    Laughably, unbelievably, retardedly false.

    and unnecessarily compromises innocent people’s privacy only by accident

    False.

    1. But the procedures, John. I’ve been assured they were followed. What would you have the feds do, actual, legitimate, targeted investigative work?

      1. Excuse me, that’s Jordan not John.

        1. Jordan, John, it’s all the same in the dark.

          1. That’s HAWT!

  11. The third-party doctrine makes total sense from a constitution standpoint.

    Only somebody who’s been through law school could believe something that retarded.

    1. Great rejoinder. Do you believe that Gmail violates your privacy when it auto-reads your e-mails and targets ads for you?

      1. I can opt out of Gmail. Where is the option to opt out of the NSA?

        1. You can opt out of any company that chooses to cooperate with the NSA.

          1. Which companies have the option to choose not to?

          2. Which I’m sure all the companies are itching to tell the government to go screw, right before renewing their government mandated license. Truly we live in a free country.

          3. And since no company has a choice but to cooperate with the NSA, the only way to opt out is not to do business with anyone.

            You’re totally secure in your privacy as long as you never leave your house or conduct any business or communicate with anyone except in person within your safe room in the basement.

            I’m totally sure that’s what was intended by the 4A.

            1. You’re totally secure in your privacy as long as you never leave your house or conduct any business or communicate with anyone except in person within your safe room in the basement.

              Even better, according to Wickard, by not conducting business, you’re engaging in interstate commerce, so the Feds can then force you to conduct business so they can steal your data.

              It all makes sense after you’ve been through law school.

              1. LOL awesome. Wickard has to be the single most awsomest case EVAR!! It is like magical and dreamy…Like Jennifer Lawrence and Amy Adams kissing.

                1. Is that in the movie?!?!?! I have SO got to see American Hustle this wknd.

                  1. The movie starred Amy Adams breasts and Jennifer Lawrence Kissing her…It was a really short movie…

            2. Actually, they can spy on you in your house, with infrared sensors and the like, because drugs are bad.

      2. Not if I consent for them to do that.

        Do you believe that the contents of a phone conversation or e-mail can be turned over to the NSA at will? After all, I’m using a third-party’s wires/servers to transmit/store that information.

        1. As I said, you’re looking for a *positive* right to force someone else (in this case, Gmail or Yahoo or whomever) *not* to do something due to the nature of the communication. You can’t restrain people from telling your secrets when you yourself told them first.

          1. Okay, so we’ve established that warrantless wiretapping is kosher.

          2. Gmail is under no obligation to provide me service if they don’t wish to abide by my terms.

          3. It’s not a “positive right” when it’s written into the fucking agreement you signed with the service provider, as well as into the law. Never let a trifling legal fiction like contracts get in the way of fellating daddy gubmint though.

          4. It is not a positive right. Hundreds and hundreds of years of contract law treat the trust of information between a business and client as a reasonable expectation- like an implied contract- that the client has when choosing to do business. And that’s if a formal agreement does not address the issue in the first place.

            1. Yep. It is called a confidential relationship giving rise to a fiduciary duty. It is self-executing under the common law where trust and repose are placed by one party onto another. That, apparently, means that any expectation of privacy is just “unreasonable” because of “terrorism.”

      3. no, but I don’t expect gmail to share the contents of my emails with everyone else.

        1. I don’t expect gmail to share the contents of my emails with everyone else.

          Maybe that’s because they told you they wouldn’t do that in their fucking service agreement that Neoliberal Fuckstick conveniently forgets about when he needs to excuse the inexcusable.

    2. I went to law school. The “third party doctrine” is retarded.

      If people had an ACTUAL choice in the matter, for purposes of information retention, they would assign agency to phone companies when it comes to the protection of their information, not “third party” status. But they don’t: customers are forced to interact with the companies they rely upon for business and life every day as complete strangers, at least as far as the law is concerned.

      The Supreme Court — if it was actually looking out for our rights — would recognize this fact of life and interpret the 4th Amendment such that the third party doctrine doesn’t exist.

      1. That implies a right to a certain lifestyle, which is nonsensical. Since a person doesn’t have a right to a lifestyle, he has no right to receive that lifestyle on his terms.

        The 3rd party doctrine is wrong because it fails to recognize the data collection as really coming from the 1st party, the party who generated the data.

  12. “This Court consistently has held,” the justices said in Smith, “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    so next time I pay a restaurant bill with a credit card, I shouldn’t get upset if the number is shared with others?

    Silly me, I assumed that voluntarily turning over information to a third party was for the purposes of some transaction/contract in which the third party’s role was as a conduit of that information, like providing data transmission lines or processing payment or some such. Apparently, I was wrong; “third party” means everyone.

    1. so next time I pay a restaurant bill with a credit card, I shouldn’t get upset if the number is shared with others?

      Is the information being shared with a private party pursuing profit, or the government? Because one of those is unbelievably virtutous, and the other one is completely evil.

    2. The government probably only needs your shopping history in an terrorist investigation.

      Can you “voluntarily” create a pin number or credit card number? If you don’t create a PIN number, the bank won’t give you a debit card. You can’t create your own credit card numbers.

      There’s no way Google will share my Gmail password with anyone, unless they like spending time in court. But my search history is apparently fair game. The same applies to the NSA apparently.

    3. The reason the restaurant won’t share that number with others isn’t because it’s “yours” but because the restaurant doesn’t want to break its agreements with the credit card processor or be part of an identity theft action.

      This notion of you owning the data the credit card company generates is neither necessary nor logical. So let’s dismiss it as the nonsense it is.

    4. And apparently Target can’t be sued for letting hackers take your debit card info, since you gave it away when you swiped the card.

  13. By definition, “papers, and effects” are data and imply a third party. Otherwise, the only “papers and effects” are government documents which are already government property.

    Therefore, the Constitution does NOT carve ANY exception for third-party data. The court is WRONG on this.

    And I add that a foolish consistency is the hobgoblin of small minds.

    1. I would love to go back in time, sit down with Maddison, Adams, Jefferson, and even Hamilton and SLAP THE SHIT OUT OF THEM. All they needed to do was add capital punishment to all infractions of the constitution. Simple enough. If you are a govt. functionary, politician, soldier, and you violate the constitution? DEATH BY FIRE!

      1. Won’t work. As long as criminal prosecutions are monopolized by the gubbmint, we’ll end up here.

      2. John Adams would likely have been the first president executed.

        1. He should have been the first one impeached – Alien and Sedition Acts indeed!

    2. WTF? “Papers, and effects” name very concrete things. It’s bizarre for you to assert that two concrete nouns somehow by definition are the abstraction notion of data.

      The court is wrong about an exception for third-party data… except that this isn’t third party data. Correctly the judge pointed out that the company itself generated the data, and so this is properly first party data of the company.

      (That is, assuming it’s property in the first place, which I’d reject)

      1. I am a licensed private detective. Since this information belongs to the phone company, can I ask them to sell me your toll call records? Can they agree to do so? Can I then take those records which I have purchased and sell them to others? If not, why not?

        Hint: the answer involves the FTC and the Telecommunications Act of 1996.

        1. Unless the phone company has agreed with someone else that they wouldn’t release these records, then you, you absolutely can ask them to sell you the toll call records.

          For laws to restrict phone companies from selling the information that they themselves generate would be interference in victimless, private associations.

          1. Ah, but that’s where the hint comes in. The feds told the phone companies that they are required to protect my billing information in Section 702 of the Telecommunications Act of 1996. Not only that, but the FTC went after investigators who acquired that information and then bragged about protecting customers’ “confidential phone records”:

            http://www.ftc.gov/news-events…..nts-barred

            Granted, the investigators used pretext to acquire the info, but the government didn’t go after them on the basis of impersonation or “identity theft”; they instead cited Section 702, which grants a privacy interest to the customer, and the press release even points out that phone billing info cannot be released without the customer’s permission.

      2. It’s bizarre for you to assert that a contract is not an effect.

        1. An observation of the state of a phone company’s switching equipment is not a contract.

          1. No, your service agreement disclosing the company’s privacy policy is a contract.

            Which is irrelevant to you, since you assert that the data belongs to the telephone company anyway. In which case the phone company should be able to tell the government to go pound sand until they come knocking with a proper warrant. Which is kinda different from the government snooping on those networks, telling the telecoms after the fact, and giving them immunity from suit or prosecution for handing over that information – which is actually what happened.

      3. WTF? “Papers, and effects” name very concrete things.

        I guess the 1st Amendment only applies to printing presses too, right?

      4. Data is an effect. It can also be on paper, in which case it would be both papers and effects. Fuck you.

  14. If this practice is Constitutional, then we need to amend the Constitution to expand the scope of 4th amendment protections.

    1. No, we need to hang the government officials who ignore the 4th amendment. The amendment itself is just fine.

  15. Response to the addendum: Here the problem is fixing the question without fixing the solution. The call records ABSOLUTELY ARE property of the company, but then that means the company (via its owners) have a 4th Amendment right not to have their property searched.

    It is correct to note that the records are owned by the phone company, but then incorrect to claim the company has no right to privacy.

    This perspective is actually a hugely good thing. When the company owns the data, the might of the company is then ready to defend its rights, and the company has far better resources than the individual.

    1. I think viewing it as merely the phone companies’ property is how we are now in this mess.

      The phone companies are presented with subpoenas/warrants from law enforcement for their customers’ metadata which they respond to, have a chance to challenge, etc. The problem is that this is enough to protect the phone companies’ 4th Amendment rights as the government’s demands have been reviewed/accepted by a judge (however poorly). The ACTUAL target of the government — the customer or, in the NSA’s case, the entire universe — has no chance to challenge a deficient warrant because he never knows about it.

      1. But it IS the phone companies’ property. The phone companies generated the data using their own computers based on observations of their own equipment, and so on. It is the companies’ property.

        That reality might occasionally be messy (cause a mess as you put it) is no reason to ignore reality.

    2. Also, I might add, even though the phone companies may have more resources, they are less likely to care about the information because whom their customers call is not something they will risk their relationship with government regulators over.

      1. If the customers want it private (which they do) then they will not want to risk their relationship with their customers over it.

        So long as customers mistakenly believe it is the customers’ data, they don’t know they need to ask for that privacy.

        It’s a fine case of government regulation standing in the way of consumers’ properly expressing their desires.

        1. Except that several companies DID give data and access to the feds, without warrants. And Congress then retroactively covered their backs to prevent them from being prosecuted, which they could have been under then-existing law.

    3. The Telecommunications Act of 1996 also states that the customer has a privacy interest in the data, and that the phone company has a responsibility to protect that interest. But apparently, Smith v. Maryland in 1979 happened after 1996, somehow, and makes that moot. Except that as recently as 2008 the FTC was putting out press releases talking about how they were stopping evil private sector investigators from selling peoples’ “confidential phone records”.

      1. “that the customer has a privacy interest in the data, and that the phone company has a responsibility to protect that interest”

        This shouldn’t have even needed new legislation in 1996. Pretty much every business relationship, but especially those that generate personally identifying records, has been legally treated this way for a long time.

    4. The call records ABSOLUTELY ARE property of the company

      No they are not. They are contract effects of two, and sometimes three parties.

      1. Just because a law declares reality to be thus does not make it so. Reality has notably little respect for the wishes of law.

  16. Doesn’t it make a difference if the individual and the third party make an agreement(contract) to ensure the privacy of the individual’s data? Why would that contract be exempt from Fourth Amendment protections?

    Then in another direction, what would it take to overturn the Smith decision?

  17. my best friend’s half-sister got paid $13253 a week ago. she is making money on the computer and moved in a $315200 house. All she did was get blessed and apply the information explained on this web page

    ????????????

  18. Okay, I just stumbled across this (okay, on wiki, sorry) and wonder what the relevance is to the issue:

    “The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 ?? 2701?2712) is a law that addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs)??..

    The SCA creates Fourth Amendment-like privacy protection for email and other digital communications stored on the internet. It limits the ability of the government to compel an ISP to turn over content information and noncontent information (such as logs and “envelope” information from email). In addition, it limits the ability of commercial ISPs to reveal content information to nongovernment entities.”

    Problem solved?

    1. Shouldn’t need to be a law in the first place, but it at least ought to reinforce precedence for treating all forms of telecommunication consistently

  19. It means whatever the people in charge want it to mean, if they want to bad enough. Oh sure, they’ll lose a gun rights case, or maybe a labor law case, but they will not lose if it means a significant curtail on their ability to bully. I doubt SCOTUS will pick this one up. Actually, I hope they don’t, because Roberts is a coward, Scalia is a statist, and I don’t think it would turn out well for those who value liberty.

  20. a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties

    Not even true. You “voluntarily” file tax returns, yet individual federal employees can be made to pay fines or sent to prison for divulging that information. And the federal HIPAA creates a statutory right to privacy. And then there’s the entire suite of judicial and statutory privileges recognized to varying degrees by different courts – attorney-client, spousal, priest-penitent, journalist-source, etc. There are tons of things you can (or must) tell other people, while retaining an expectation of privacy.

    1. They meant you don’t have a legitimate expectation of privacy to information that would be convenient for the government to take from third parties. It’s in the 32th amendment or something like that.

    2. All kinds of professionals can at the least have their licenses suspended or revoked for disclosing or otherwise inappropriately using information entrusted to them. Example: an engineer purchases property from under a client who expressed to the engineer their intentions to purchase said property.

  21. Why is the US Postal service not considered a “third party” under that reasoning?

  22. Governments should not be allowed to do anything, unless they are specifically granted the power to do something. Citizens should be allowed to do anything, unless they are prohibited from doing so.

    This is a case of the government trying to do anything they can get away with unless they are limited by law. That is wrong.

    To make matters worse, since in practice businesses often operate by permission of the government (by licensing and approval, rather than by inalienable right), they are more inclined to submit to the requests of various state agencies out of fear of reprisal when it comes time to gain government permission to do business as they see fit.

  23. lol, gotta love those lowlife kangaroo court judges.

    http://www.BeinAnon.tk

  24. When I found out that phone companies get paid to hand over our information that was when I decided to close my account.

  25. If I had known that my phone calls and emails were not mine, but, in fact, third party properties, would I have used the phone or email? The fascist police state is being confirmed by the U.S. federal court system.

    It is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of the government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Murray Rothbard. (“For a New Liberty,” Fox & Wilkes, San Francisco, 1973)

  26. Certainly there IS an expectation of privacy that this corrupt, treasonous, bastard judge is missing.

    Judges who get away with twisting the law to appease their authoritarian masters in order to subvert the American people should be held accountable by the American people.

  27. The rule of law is dead if we let bastard criminal judges make a mockery of it.

  28. The sad fact is that the state will do whatever it wants, whenever it wants. Vagaries of jurisprudence are primarily a tool used to assuage the consciences of those in power who still have any conscience left, and secondarily, to keep those who feel violated spinning on the merry-go-round of pleading for justice from an organization that was never designed to mete out actual justice in the first place.

    One of the most amazing facts of the modern techno-bureaucratic democracy is that it so thoroughly obscures the truly vile nature of political power under uncountable layers of intellectual rationalization, legal minutiae, financial machinations, nostalgic sentimentality, social mythology, conditioned habit, and the complacency of modern comfort, that it is virtually guaranteed to survive as an idea, even through the most violent of upheavals.

    This state will continue to grow in capriciousness and viciousness, and there is very little anyone will be able to do about it. Eventually, it will collapse. Either of its own weight, or as a result of insurrection, but it won’t be for another few hundred years. In its wake, we will construct yet another version of it, utterly unaware that we are merely setting the machinery of violence back into motion all over again. And, predictably, we will later be shocked and appalled when we find it doing exactly the same things all over again, that the last state did, and the state before that, and the state before that, and so on, and so on.

    1. +1 tragic view of life

    2. really well said, really sadly said. There is still hope of things getting better however. Some chips are being made into the current unjust edifice, as more and more people are disolusioned with the way things are, and the viel of mythology guarding our institutions is stripped away.

  29. If metadata doesn’t belong to the originator, can the Evil Koch Brothers bid to buy access to Media Matters’ e-mail metadata?

  30. The NSA is allowed warrantless search of the information because it belongs to a corporation…OK, but aren’t corporations people too according to the Supreme Court. If corporations are people too, then don’t they still have fourth amendment protections?

    Now they can spin it however they like, but they need to remember that even when they spin it, they are still violating the constitution unless they don’t want to consider corporations people, but then they have to deal with campaign finance laws and the Hobby Lobby’s refusal to provide birth control and all manner of other issues that stem from the corporations=people debate.

    And all the talk of “delicate balance” has already been hashed out in the fourth amendment. That balance is this: If you want to search, you need a warrant. It doesn’t get much more balanced than that.

  31. Funny, but my interaction with the provider of any service was always based upon the assumption that said provider and I were the only interested parties and what we did was our own private business. Including a third party (the person I’m calling) does not change that relationship with the provider, it simply enlarges the contract. You could consider the person I’m calling the second party and the phone company the third, but the same principle applies.

  32. Pauley just seems to have a funny idea of what “voluntary” means…

  33. The concept of “agency” is out the window, thanks to cocksuckers such as Tulpa.

  34. If I check in to a hotel room, do I lose my expectation of not being videotaped in the shower because I have contracted with a third party to use the room? The room belongs to the hotel: can it videotape me getting dressed if the government wants to take a look? How is that any different from having my phone records liable to search? If my phone records aren’t mine, then why am I paying Verizon anything? My account, my bill, my phone–but not my call history? Not my privacy? This judge is contemptible.


  35. my roomate’s half-sister makes 74 dollars an hour on the laptop. She has been without a job for 7 months but last month her check was 19922 dollars just working on the laptop for a few hours. published here

    http://www.tec30.com

  36. The metadata is already “out there”; the citizen left it, and has no more control over it. The first part of the NSA program has no 4th amendment problem. The data is collected and sequestered robotically; no human judgment is involved. A “search” can only happen once the government scrutinizes the data, even by doing a blind keyword run. For that, a judicial OK is needed by an outside official.

  37. Not an attorney BUT why wouldn’t the byproduct of our own personal communications, email, phone calls, video chat, purchase behavior be protected as intellectual property and therefore subject to copyright protection? The owner can choose to license it but the government should not be able to confiscate it. Can you imagine if the film, software and record industry had the same standard held to them?

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