Surveillance

Warrantless Snooping Goes Far Beyond the NSA's Phone-Record Dragnet

Two cases highlight the precariousness of privacy when your records are not yours.

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Last week a federal appeals court said police do not need a warrant to look at cellphone records that reveal everywhere you've been. Two days later, another appeals court said the National Security Agency (NSA) is breaking the law by indiscriminately collecting telephone records that show whom you call, when you call them, and how long you talk.  

On the face of it, that's one victory for government snooping and one defeat. But both decisions highlight the precariousness of privacy in an age when we routinely store huge amounts of sensitive information outside our homes.

The Fourth Amendment prohibits "unreasonable searches and seizures" of our "persons, houses, papers, and effects." But according to the Supreme Court, the Fourth Amendment does not protect our papers once we entrust them to someone else.

In a 1976 case involving bank records, the Court declared that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Three years later, in a case involving phone records, the Court reiterated that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." 

This dubious "third-party doctrine," enunciated before the Internet existed and mobile phones became ubiquitous, was crucial to the outcome of a case decided by the U.S. Court of Appeals for the 11th Circuit last week. The court said an armed robber named Quartavius Davis had no constitutional grounds to object when the FBI linked him to several crime scenes with cellphone location data that it obtained without a probable-cause warrant.

The court's logic was straightforward: Those records did not belong to Davis; they belonged to MetroPCS, his mobile phone company. So even though they revealed everywhere he went over the course of 67 days, he had no reasonable expectation that the information would remain private.

Dissenting Judge Beverly Martin noted that the majority's reasoning invites even bigger intrusions. "Under a plain reading of the majority's rule," she said, "by allowing a third-party company access to our e-mail accounts, the websites we visit, and our search-engine history—all for legitimate business purposes—we give up any privacy interest in that information."

That means the government can find out what we watch on YouTube, what we look up on Wikipedia, what we buy on Amazon, and whom we "friend" on Facebook or date via Match.com—"all without a warrant." In fact, Martin noted, "the government could ask 'cloud'-based file-sharing services like Dropbox or Apple's iCloud for all the files we relinquish to their servers."

The U.S. Court of Appeals for the 2nd Circuit also noted the privacy threat posed by such data grabs in its ruling against the NSA's mass collection of phone records. But that decision was based on Section 215 of the PATRIOT Act, which the court said did not authorize the NSA program, contrary to the position taken by the Obama administration.

Congress is currently debating reauthorization of Section 215, which expires at the end of this month. Even if the provision is renewed unchanged, the 2nd Circuit's decision (assuming it's not overturned) means the NSA can no longer use Section 215 to collect everyone's phone records.

That outcome, while welcome, leaves unresolved a deeper issue that the 2nd Circuit mentioned but did not address: "whether the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data that would previously have overwhelmed its capacity to make use of the information, render obsolete the third?party records doctrine." Until the Supreme Court grapples with that issue, such highly revealing and deeply personal information will have only as much protection as legislators decide to give it.

© Copyright 2015 by Creators Syndicate Inc.

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  1. On the face of it, that’s one victory for government snooping and one defeat. But both decisions highlight the precariousness of privacy…

    It highlights that Fourth Amendment rights rest on the whims of whatever black-robed lawyer is deciding them at the time.

    1. That constitution thingie is… quaint.

      At some point, we really do have to kill all the lawyers.

      1. Can I kill ProL? I would give him a clean death, a soldier’s death.

        1. *salutes while taps plays in the background*

          a single tear splashes on the ground for the loss of a heroic commentator.

      2. Give me a heads up so I can change professions first.

    2. This.

      both decisions highlight the precariousness arbitrariness of privacy

      FTFY

  2. Who deflated the Colts’ balls?

    1. I blame Brady.

    2. More importantly, did Brady cheat for the Ravens game? That one was actually close and the cheating might have made a difference. The Indianapolis Evil Irsays were so awful that the balls could have been inflated to a hardness exceeding diamond and the Irsays would have still gotten destroyed.

      1. This ruling left a lot of people feeling deflated.

        YEAH, I SAID IT!!!

      2. Nobody checked. But there were complaints before the colts game.

      3. It was no more “cheating” than when a player scuffs up a baseball in MLB. If the ump doesn’t notice it then tough shit.

        1. So it’s only cheating when you get caught.

          Ladies and Gentlemen, here you see the morality of a Progressive on full display. It has 8% of the morality of a normal human.

          1. Surely not even that much.

            1. It’s a nice round number, understandable even to a Tinman.

    3. According to the report, Mother Nature. The Colts’ balls were deflated within what could be expected with the change in environmental conditions. The Patriots’ balls were deflated lower than what could be expected with the change in environmental conditions.

      No idea whether it is true. Just what the report said.

      1. Anyone with freshman chemistry behind them and an IQ higher than Neil dGT can do the calculation.

        They cheated.

        1. Except for the fact that the starting measurements were, according to the report, estimates.

          The officials hadn’t written the first measurements down, so they came up with general estimates based on memory.

          So we’re declaring that one set of balls were intentionally deflated, and the other set deflated naturally, based on differences of tenths of a pound in the respective PSI deltas…when we don’t actually know the starting measurements.

          1. But magically, the same problem didn’t occur with balls out of the same lot that the Evil Irsays used. Huh.

            1. The Colts footballs did lose air and some were under 12.5. It just wasn’t to the same extent as the Pats footballs.

              The lack of written records before the game makes it impossible for the league to prove that the footballs were tampered with that day.

              The problem for the Patriots and Brady is that they both failed to cooperate with requests made by the investigators. The NFL as an employer gets a lot of leeway as a result of that to hand out punishment. Many of Goodell’s random punishments get overturned, but this one may end up sticking because of that.

              The text messages are the only piece of evidence the NFL really has of tampering.

  3. ? Copyright 2015 by Creators Syndicate Inc.

    *lights Old Mexican IP signal*

  4. A nation conceived in liberty no longer exists.

  5. The thing with the third party doctrine that is bullshit is that the government compels those who own the records to hand them over, and in bulk at that. In theory, the courts are right. You hand over your private data to a third party, you lose some control and the right to claim privacy.

    But when the government can then get court orders to compel third parties to hand over bulk records on everyone to go digging and searching, that is clearly a different animal.

    There’s also the issue of the contract people sign with the service providers here. Is it clearly defined for people that the government has the right to seize that data in the contract? If not, then the government’s claims should crumble in front of an honest judge. If you sign a contract promising you certain protections, and the government comes in and overrides said protections without your knowledge or consent, your right to privacy should return.

    Like banks. The government gave itself the power to regulate banks and force them to report the information of customers. Or cell phone companies with the secret courts. The lack of probable cause is the area to attack all of this.

    But all of this boils down FYTW. The legal arguments are just fluff.

    1. Please define “hand over” to a third party.

      My brother sent me a letter via the Post Office, but do I not have a reasonable expectation that my letter is protected under the 4th amendment? He “handed it over” for awhile, right?

      How are “papers and effects”, as conceived in the 4th Amendment, not the obvious modern equivalents of e-mails, notwithstanding the fact that third parties are involved in the transmission?

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  7. But both decisions highlight the precariousness of privacy in an age when we routinely store huge amounts of sensitive information outside our homes.

    Plus anybody who doesn’t routinely store sensitive data where the government can snoop it is obviously trying to hide something and is hence a “terrorist”. So it’s a nut punch no matter what.

    1. Pretty much this. Like the recent case recently reported on here of the guy who had his 18k stolen. There was no evidence of drug activity. Carrying large amounts of cash is itself evidence of a crime to the government. Even when you explain where and how you got it.

      The government just wants access to the information so they can get their cut and use it to their advantage in criminal cases. The legal argument or constitutionality don’t matter to the regulators or law enforcement. Nor the politicians, for that matter.

      I don’t like arguments based on how things changed from time point x such as the one in this article. Nor do I like cases where judges or lawyers try to balanced some arbitrary notion of the public good. There isn’t supposed to be balancing of rights. They are supposed to be inalienable.

  8. In fact, Martin noted, “the government could ask ‘cloud’-based file-sharing services like Dropbox or Apple’s iCloud for all the files we relinquish to their servers.”

    Interesting. So the people who broke into celebrity accounts to steal nude selfies did nothing illegal? They must have been wearing special costumes when they did it I suppose. Because a normal person would be prosecuted for hacking, or violating privacy et cetera, but a person in a costume can do so and then claim that their victim had no reasonable expectation of privacy.

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  10. “Two cases highlight the precariousness of privacy when your records are not yours.” When your records are not yours? How about when you don’t own the property of your body and your mind. When the otherwise peaceful, honest use of mind altering drugs, which should be the inalienable right of all adults, is criminalized then you no longer own the property of your body and your mind. The government does. So why does the tyrannical government’s reach into our private lives surprise anyone. Get use to it. Yes, in America we are free, free to do whatever the government allows us to do.

    And, by the way, alcohol, which the government does allow adults to legally make, buy, and consume, is the number one violence-causing drug in America.

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