14 Jun 13
http://www.latimes.com/news/politics/la-pn-nsa-surveillance-terrorist-plots-20130612,0,5510847.story
General Keith Alexander, in his Congressional testimony, said the NSA only searches "telephony metadata if "we have some reasonable, articulable suspicion about a terrorist organization." As far as I know, reasonable suspicion has only been used by the courts as grounds for a "stop and frisk" (a "Terry" stop). Other types of searches have either required a warrant where there is a reasonable expectation of privacy or nothing where there is not.
The NSA appears to have compromised in its perusal of "telephony metadata" by using the "reasonable suspicion" standard that is higher than nothing, but short of the "probable cause" standard that is necessary to obtain a warrant.
Does the NSA have the right to make this determination? Will the courts likely buy it? Do you have a reasonable expectation of privacy regarding your "telephony metadata"? Can anyone really define that term?
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14 Jun 13
Originally posted by sh76I'd expect "telephony metadata" to be data about the call, but not the recored call text. Data about the call would be the phone numbers, date and time, possibly GPS/cell tower locations, etc.
http://www.latimes.com/news/politics/la-pn-nsa-surveillance-terrorist-plots-20130612,0,5510847.story
General Keith Alexander, in his Congressional testimony, said the NSA only searches "telephony metadata if "we have some reasonable, articulable suspicion about a terrorist organization." As far as I know, reasonable suspicion has only been used by the courts ...[text shortened]... privacy regarding your "telephony metadata"? Can anyone really define that term?
I'd expect the NSA to not only have the right, but the responsibility, to make a judicially reviewable determination of whether a situation it is reacting to requires a warrant, reasonable suspicion, or neither.
14 Jun 13
Originally posted by sh76Maybe this might help you figure what metadata is.
http://www.latimes.com/news/politics/la-pn-nsa-surveillance-terrorist-plots-20130612,0,5510847.story
General Keith Alexander, in his Congressional testimony, said the NSA only searches "telephony metadata if "we have some reasonable, articulable suspicion about a terrorist organization." As far as I know, reasonable suspicion has only been used by the courts ...[text shortened]... privacy regarding your "telephony metadata"? Can anyone really define that term?
http://www.guardian.co.uk/technology/interactive/2013/jun/12/what-is-metadata-nsa-surveillance#meta=1101011
14 Jun 13
Originally posted by sh76All pretty good questions. I predict the answers will not be settled any time soon. The combination of national security issues regarding terrorism, and the fast changing arena of technonogy will keep the courts (and lawyers) busy in this area for a long time.
http://www.latimes.com/news/politics/la-pn-nsa-surveillance-terrorist-plots-20130612,0,5510847.story
General Keith Alexander, in his Congressional testimony, said the NSA only searches "telephony metadata if "we have some reasonable, articulable suspicion about a terrorist organization." As far as I know, reasonable suspicion has only been used by the courts ...[text shortened]... privacy regarding your "telephony metadata"? Can anyone really define that term?
15 Jun 13
Originally posted by sh76Rule
Do you have a reasonable expectation of privacy regarding your "telephony metadata"?
For there to be a search within the meaning of the Fourth Amendment, I must have:
1. A subjective expectation of privacy, AND
2. A reasonable expectation of privacy.
For example, the government cannot spy on me through the walls of my home with their super, secret telescopic lens because society values the sanctity of the home. However, Big Brother can gawk at me while I walk to the store because society cannot expect the police to close their eyes while they are in public.
Do I have a reasonable expectation of privacy regarding my "telephony metadata?"
Short Answer
If this so-called "telephony metadata" falls within Smith v. Maryland, then I don't have a reasonable expectation of privacy in its disclosure to the government. 442 U.S. 735 (1979). Smith, of course, held that people don't have a reasonable expectation of privacy in the telephone numbers that they dial. After all, the phone company needs some mechanism to determine how much they should bill you, and for that reason, people can't expect that information to be private. Therefore, the government can view my phone records (who I have called) without first obtaining a warrant and not violate the Fourth Amendment.
The same reasoning might apply to some or all of the "telephony metadata." If it does, then I cannot claim that there was a search within the meaning of the Fourth Amendment because I have no reasonable expectation of privacy in my "telephony metadata."
Caveat (i.e. common sense revisited)
The US Supreme Court, however, recently suggested in United States v. Jones that it might reconsider its holding in Smith. 132 S. Ct. 945 (2012). There, the four dissenting justices (Alito, Ginsburg, Breyer, and Kagan) concluded that a four-month long GPS surveillance impinged on reasonable expectations of privacy and therefore constituted a search. Sotomayor also expressed a willingness to reconsider Smith; however, she joined the Majority instead because the case could be decided on narrower grounds. The Majority declined to do an expectation of privacy analysis because the installation of the GPS device on Jones's car was a trespass. In accord with precedent, a trespass is a search; therefore, a lengthy, and perhaps abstract, expectation of privacy analysis was unnecessary for the Majority to decide the case. For our purposes, because five justices were concerned that long-term electronic surveillance might impinge reasonable expectations of privacy, the dissent and concurrence in Jones could open the door for future challenges to the NSA's actions concerning our "telephony metadata" (e.g. ACLU's recent lawsuit).
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Smith v. Maryland, 442 U.S. 735 (1979). http://scholar.google.com/scholar_case?case=3033726127475530815&hl=en&as_sdt=2&as_vis=1&oi=scholarr
United States v. Jones, 132 S. Ct. 945 (2012). http://scholar.google.co/scholar_case?case=6122276400056758151&hl=en
15 Jun 13
Originally posted by sh76The federal courts are more likely to accept it the more Republican-nominated judges there are.
http://www.latimes.com/news/politics/la-pn-nsa-surveillance-terrorist-plots-20130612,0,5510847.story
General Keith Alexander, in his Congressional testimony, said the NSA only searches "telephony metadata if "we have some reasonable, articulable suspicion about a terrorist organization." As far as I know, reasonable suspicion has only been used by the courts ...[text shortened]... privacy regarding your "telephony metadata"? Can anyone really define that term?
15 Jun 13
1 edit
Originally posted by MoneyManMikeSmith was wrongly decided and should be overruled. I agree with Judge Stewart's concluding paragraph in his dissent:
[b]Rule
For there to be a search within the meaning of the Fourth Amendment, I must have:
1. A subjective expectation of privacy, AND
2. A reasonable expectation of privacy.
For example, the government cannot spy on me through the walls of my home with their super, secret telescopic lens because society values the sanctity of th 45 (2012). http://scholar.google.co/scholar_case?case=6122276400056758151&hl=en[/b]
Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
People don't expect that some government agency is going to be able to mine all their phone and/or internet communications any time the government feels like it without the bother of obtaining a warrant. It is one thing to have an address on a single envelope and quite another for the government to keep track of every letter you have mailed: to whom and when. The Framers would be flabbergasted to hear in the country they created the acceptance of such an intrusive power.