NSA spying ruled unconstitutional by US court (Wired UK)

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The Eleventh Circuit Court of Appeals said no this week to
tracking your movements using data from your cell phone without a
warrant when it declared that this information is constitutionally

The case, United States v. Davis, is important not only because it
provides substantive and procedural protections against abuse of an
increasingly common and highly invasive surveillance method. It
also provides support for something Christopher Sprigman and I
have said before — that the US government’s other “metadata”
collection programs are unconstitutional.

The Davis decision, in effect, suggests that the US
government’s collection of all kinds of business records and
transactional data — commonly called “metadata” — for law
enforcement and national security purposes may also be

Your phone sends signals to the nearest cell towers so that the
communications network system knows where to route a call should
one come in. Many providers collect and store the location of
towers a customer connects to at the beginning and end of the call
for billing purposes. FBI agents in Davis obtained these
records without a search warrant and used them to place the
defendant, Quartavious Davis, near the scene of a number of

The prosecution had argued that cell tracking without a warrant
is constitutional per the 1979 case Smith v. Maryland. In
that case, the Supreme Court said that phone users have no
“reasonable expectation of privacy” in the phone numbers they dial,
and therefore they aren’t protected under the Fourth Amendment. Key
to the Smith case was the Court’s view that the suspect
had knowingly disclosed the phone numbers to the phone company and
therefore had no protection with regard to them. Additionally,
Smith built on the 1976 case of United States v.
, which held that a person does not have Fourth
Amendment rights in their bank records because they are the bank’s
business records and not the customer’s private data. Together the
cases are known as the “third-party doctrine,” which says that you
have no Fourth Amendment interest in a third party’s business
records because you have voluntarily disclosed information to the
business and assumed the risk of that information being further
disclosed to the US government.

This third-party doctrine is what the NSA has used to justify
its current warrantless bulk collection of phone call records –
revealed in documents leaked by Edward Snowden — as well as its
past collection of internet transactional information, and its suspected acquisition of financial information.

Challenges to the phone records bulk-collection program are
currently wending their way through the federal courts. Last
December, a District of Columbia judge held that the bulk collection of phone records violates the Fourth
 — regardless of Smith — and called
the program “almost Orwellian.” Yet shortly thereafter a different
district court judge relied on Smith to give the program
his stamp of approval. This month, a third federal judge opined
that the Supreme Court should overturn Smith v. Maryland
— but until it does so, he was obligated to allow the calling
records collection program to continue.

Great privacy news for everyone

The Eleventh Circuit federal appellate court has rejected the
idea, however, that Smith and Miller allow
warrantless acquisition of business records that reveal intimate
matters. Instead, the court looked to a more recent Supreme Court
case — United States v. Jones (2012) — which held that
attaching a GPS-tracking device to a vehicle and using the device
to monitor the car’s movements was a trespass that violated the
Fourth Amendment because it interfered with the defendant’s
property interest in the car. In concurring opinions, Justice Sonia
Sotomayor and four other justices added that the GPS surveillance
“impinge[d] on expectations of privacy” because it allowed
authorities to monitor every place a suspect traveled and infer
many things about a suspect’s private life based on that

Relying on the Jones concurrences, the Eleventh Circuit
concluded that under the “reasonable expectation of privacy” test,
cell phone location data is also protected under the Fourth
Amendment, since this data can reveal private matters such as
“being near the home of a lover, or a dispensary of medication, or
a place of worship, or a house of ill repute”. The appellate judges
also dismissed the argument used in Smith that people lose
their right to data submitted to businesses, rejecting the idea
that people know in any meaningful way that in using their cell
phone they are sending their location information to a

The appellate judges in Davis, by refusing to apply
Smith and Miller to a case involving stored
records, have taken a giant step toward undermining the legal
justification propping up many of the US government’s targeted and
bulk metadata collection practices. The call detail records that
the NSA gets under its Section 215 collection program — which
provide information about phone numbers called and received and the
duration of calls — include far more detailed data than the simple
information at issue in Smith and are far more revealing of private conduct, social networks, and thought
processes. This is especially true because the records are
collected in bulk.

In Jones, Justice Sotomayor opined that it may be time
to rethink the third-party doctrine. The Eleventh Circuit has taken
a step in that direction, writing an appellate-level opinion that
rejects the extension of those 1970s-era cases to modern
communication networks and data. This is great privacy news for
anyone who uses a cell phone. But it’s also a trembler suggesting
that when appellate courts finally get hold of the NSA’s bulk
metadata collection programs, these programs may very well be
knocked down.



This article originally appeared on Wired.com

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17 June 2014 | 9:48 am – Source: wired.co.uk

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