Sep 162014

In addition to the amicus brief in Smith v. Obama, a few weeks earlier I had filed another one on behalf of the National Association of Criminal Defense Lawyers in Jewel v. NSA, another case challenging the NSA’s telecommunications surveillance.

Unlike Smith v. Obama and other similar cases, which argued that even collecting “just” telephonic metadata violated the Fourth Amendment, in Jewel the surveillance involved the collection of communications in their entirety. It didn’t just catch the identifying characteristics of these communications; it captured their entire substance.

The Electronic Frontier Foundation originally filed this case in 2008 following the revelations of whistleblower Mark Klein, a former tech at AT&T, that a switch installed in a secret room at AT&T’s facilities were diverting copies all the Internet traffic passing through their systems to the government. This, the EFF argued in a motion for summary judgment, amounted to the kind of “search and seizure” barred by the Fourth Amendment without a warrant.

Like in Smith v. Obama, this surveillance necessarily implicates the Sixth Amendment in how it violates the privacy of communications between lawyers and their clients. But because the surveillance involves the collection of the content of these communications it also inherently violates the Fifth Amendment right against self-incrimination as well.

The Fifth Amendment guarantees that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” It protects people from making “any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” But here the government is collecting all the contents of a person’s communications, and for the obvious purpose of being able to use it against him. It would seem to be exactly what the Fifth Amendment disallows.

One of the tricky things about the Fifth Amendment is that it’s generally not “self-executing.” In other words, if someone wants to assert their rights against self-incrimination they generally have to affirmatively say that’s what they are doing. But this rule presupposes that they know when their testimony is being sought and can make the conscious choice about whether to give it or not, which is not the case here. Here the government is helping itself to the contents of people’s communications without their knowledge, much less their permission.

And so a different rule applies. In various cases, including Miranda v. Arizona, which many people are familiar with, the Supreme Court has held that when the disclosure of one’s testimony is involuntary there is no requirement to expressly invoke one’s testimonial privilege. Here the disclosure of people’s testimony to the government is completely involuntary and so the Fifth Amendment should have prevented the capture of their information, whether they had been aware of it happening or not.

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