Sep 152014
 

Last week Durie Tangri and I filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in the appeal of Smith v. Obama. Smith v. Obama is one of the many lawsuits being brought against the government following revelations of how the NSA has been spying on Americans’ communications. Like several of the others, including First Unitarian Church of Los Angeles v. NSA and Klayman v. Obama, this case is about the government’s wholesale collection of telephonic metadata – or, in other words, information reflecting whom people called, when, and for how long (among other details).

In the Klayman case, which is now on appeal at the D.C. Circuit Court of Appeals, the district court judge found that this wholesale, warrantless, collection of people’s call records indeed violated the Fourth Amendment. In Smith v. Obama, however, the district court had reached the opposite conclusion. Despite finding the reasoning in Klayman persuasive, the district court judge here felt bound to follow the precedent set forth in a 1979 Supreme Court case called Smith v. Maryland.

In that case the Supreme Court held that it did not violate the Fourth Amendment for the government to acquire records of people’s calls. The government only violates the Fourth Amendment when it invades a “reasonable expectation of privacy society recognizes as reasonable” without a warrant. But how could there be an expectation of privacy in the phone number a person dialed, the Supreme Court wondered. How could anyone claim the information was private, if it had been voluntarily shared with the phone company? Deciding that it could not be considered private, the court therefore found that no expectation of privacy was being invaded by the government’s collection of this information, which therefore meant that the collection could not violate the Fourth Amendment.

The problem is, in the Smith v. Maryland case the Supreme Court was contemplating the effect on the Fourth Amendment raised by the government acquiring only (1) specific call information (2) from a specific time period (3) belonging only to a specific individual (4) already suspected of a crime. It was not considering how the sort of surveillance at issue in this case implicated the Fourth Amendment, where the government is engaging in the bulk capturing of (1) all information relating to all calls (2) made during an open-ended time period (3) for all people, including (4) those who may not have been suspected of any wrongdoing prior to the collection of these call records. What Smith is arguing on appeal is that the circumstances here are sufficiently different from those in Smith v. Maryland such that the older case should not serve as a barrier to finding the government’s warrantless bulk collection of these phone records violates the Fourth Amendment.

In particular, unlike in Smith v. Maryland, in this case we are dealing with aggregated metadata, and as even the current incarnation of the Supreme Court has noted, the consequences of the government capturing aggregated metadata are much more harmful to the civil liberties of the people whose data is captured than the Supreme Court contemplated back in 1979. In U.S. v. Jones, a Fourth Amendment decision issued in 2012, Justice Sotomayor observed that aggregated metadata “generates a precise, comprehensive record” of people’s habits, which in turn “reflects a wealth of detail about [their] familial, political, professional, religious, and sexual associations.” One of the reasons we have the Fourth Amendment is to ensure that these associations are not chilled by the government being able to freely spy on people’s private affairs. But when this form of warrantless surveillance is allowed to take place, they necessarily will be.

While it’s bad enough that any associations are chilled, in certain instances that chilling implicates other Constitutional rights. The amicus brief by the Reporters Committee for Freedom of the Press addressed how the First Amendment is undermined when journalists can no longer be approached by anonymous sources because, if the government can easily discover evidence of their conversations, the sources effectively have no anonymity and will be too afraid to reach out. Similarly, the brief I wrote discusses the impact on the Sixth Amendment right to counsel when another type of relationship is undermined by this surveillance: that between lawyers and their clients. Continue reading »

May 142013
 

This specific blog post has been prompted by news that the Department of Justice had subpoenaed the phone records of the Associated Press. Many are concerned about this news for many reasons, not the least of which being that this revelation suggests that, at minimum, the Department of Justice violated many of its own rules in how it did so (ie, it should have reported the existence of the subpoena within 45 days, maybe 90 on the outside, but here it seems to have delayed a year). The subpoena of the phone records of a news organization also threatens to chill newsgathering generally, for what sources would want to speak to a reporter if the government could be presumed to know that these communications had been taking place? For reasons discussed in the context of shield laws, reporters can’t do their information-gathering-and-sharing job if the people they get their information from are too frightened to share it. Even if one were to think that in some situations loose lips do indeed sink ships and it’s sometimes bad for people to share information, there’s no way the law can differentiate which situations are bad and which are good presumptively or prospectively. In order to for the good situations to happen – for journalists to help serve as a check on power — the law needs to give them a free hand to discover the information they need to do that.

But the above discussion is largely tangential to the point of this post. The biggest problem with the story of the subpoena is not *that* it happened but that, for all intents and purposes, it *could* happen, and not just because of how it affected the targeted journalists but because of how it would affect anyone subject to a similar subpoena for any reason. Subpoenas are not search warrants, where a neutral arbiter ensures that the government has a proper reason to access the information it seeks. Subpoenas are simply the form by which the government demands the information it wants, and as long as the government only has to face what amounts to a clerical hurdle to get these sorts of communications records there are simply not enough legal barriers to protect the privacy of the people who made them. Continue reading »

Quicklinks 12/24/11

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Dec 242011
 

Other items of interest this past week: