From: "dans@openmailbox.org" <dans@openmailbox.org>
   >Good news I guess, a small victory.
   >However I think that is just a simbolic victory, useful only to make
   >more people to become aware about surveillance. With the new
   >technologies and with all the infrastucture already done record and
   >collect the metadata of the phones is too easy, too cheap, too
   tempting
   >to don't do it. And NSA will continuous doing it.
   The following is a quote from this decision, referencing a case (Smith
   v. Maryland) where the Supreme Court upheld the installation of a 'pen
   register' (a device for recording the numbers which a telephone line
   calls) on a small number of phone lines.  Correctly, this appeals court
   rejects the application of the Smith case.  Going from tapping the
   metadata of perhaps 4-5 lines to that of 100 million lines was too much
   of a stretch.  Further, the justification in Smith was based in part on
   the idea that a telephone customer voluntarily gave a phone number to
   his phone company to complete the call he wanted.
   A major problem with such a justification today is that while in 1978
   (or so) it was necessary to collect and store the 'called-party' number
   for billing purposes, in 2015 we no longer bill by the mile (as was
   done by Long Distance accounts in the 1970's and 1980's) or in most
   cases even the duration of the call.  There is, therefore, no reason
   for the phone company to even collect the information other than to
   complete the call, and to keep it only until the time the call ends.
   So, trying to use the fact that the customer gives this information to
   the TPC ("The Phone Company") has become quite tenuous and
   unnjustifiable.
      I recommend to all the 1967 movie, "The President's Analyst", which
   can be seen to be wonderfully prescient.  True, they cannot (yet)
   implant telephones in our bodies, but the main limitation on how small
   those phones can get is maintaining our ability to interact with them,
   until they become too small for fingers to control.
          Jim Bell
   quote follows:
   "The Supreme Court has also long held, however, that individuals have
   no “legitimate expectation of privacy in information [they] voluntarily
   turn[] over to third parties.”  Smith v. Maryland, 442 U.S. 735, 743‐44
   (1979); see, e.g., California v. Greenwood, 486 U.S. 35 (1988) (no
   objectively reasonable expectation of privacy in garbage exposed to the
   public by being placed on a sidewalk); United States v. Miller, 425
   U.S. 435 (1976) (no legitimate expectation of privacy in bank
   records).  In Smith v. Maryland, the Court applied that doctrine to
   uphold the constitutionality of installing a pen register at a
   telephone company’s office that recorded the numbers dialed from a
   criminal suspect’s home telephone.  442 U.S. at 737, 745‐46.  The Court
   held that the installation of the pen register was not a 84 Case 14-42,
   Document 168-1, 05/07/2015, 1503586, Page84 of 97 Case 14-42, Document
   170, 05/07/2015, 1503607, Page84 of 97 search for Fourth Amendment
   purposes because, by placing calls, individuals expose the telephone
   numbers they dial to the telephone company and therefore “assume[] the
   risk that the company [may] reveal to police the numbers . . .
   dialed.”  Id. at 744.  Similarly, it has long been commonplace for
   grand juries to subpoena an individual’s telephone records from the
   individual’s telephone service provider, in the absence of probable
   cause or a warrant issued by a judge.  The acquisition of such records,
   it has been held, implicates no legitimate privacy interest of the
   subscriber, because the records are not his or hers alone.  See, e.g.,
   id. at 742‐44; Miller, 425 U.S. at 443; Couch v. United States, 409
   U.S. 322, 334‐36 (1973).  The subscriber cannot reasonably believe that
   the records are private, because he or she has voluntarily exposed the
   information contained in them to the telephone company, which uses them
   for its own business purpose of billing the subscriber. The government
   argues, and the district court held, that this doctrine requires
   rejection of appellants’ claim that the acquisition of telephone
   metadata (as opposed to the contents of communications) violates the
   Fourth Amendment, or even implicates its protections at
   all.  Appellants respond that modern 85 Case 14-42, Document 168-1,
   05/07/2015, 1503586, Page85 of 97 Case 14-42, Document 170, 05/07/2015,
   1503607, Page85 of 97 technology requires revisitation of the
   underpinnings of the third‐party records doctrine as applied to
   telephone metadata. Appellants’ argument invokes one of the most
   difficult issues in Fourth Amendment jurisprudence: the extent to which
   modern technology alters our traditional expectations of privacy.  On
   the one hand, the very notion of an individual’s expectation of
   privacy, considered in Katz a key component of the rights protected by
   the Fourth Amendment, may seem quaint in a world in which technology
   makes it possible for individuals and businesses (to say nothing of the
   government) to observe acts of individuals once regarded as protected
   from public view.  On the other hand, rules that permit the government
   to obtain records and other information that consumers have shared with
   businesses without a warrant seem much more threatening as the extent
   of such information grows."