Appeals Court Rules NSA Phone Program Not Authorized by Patriot Act - wsj

jim bell jdb10987 at
Thu May 7 19:42:06 PDT 2015

  From: "dans at" <dans at>
>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 tothird parties.”  Smith v. Maryland, 442 U.S. 735, 743‐44 (1979); see, e.g., Californiav. Greenwood, 486 U.S. 35 (1988) (no objectively reasonable expectation ofprivacy in garbage exposed to the public by being placed on a sidewalk); UnitedStates v. Miller, 425 U.S. 435 (1976) (no legitimate expectation of privacy in bankrecords).  In Smith v. Maryland, the Court applied that doctrine to uphold theconstitutionality of installing a pen register at a telephone company’s office thatrecorded the numbers dialed from a criminal suspect’s home telephone.  442 737, 745‐46.  The Court held that the installation of the pen register was not a84Case 14-42, Document 168-1, 05/07/2015, 1503586, Page84 of 97 Case 14-42, Document 170, 05/07/2015, 1503607, Page84 of 97search for Fourth Amendment purposes because, by placing calls, individualsexpose the telephone numbers they dial to the telephone company and therefore“assume[] the risk that the company [may] reveal to police thenumbers . . . dialed.”  Id. at 744.  Similarly, it has long been commonplace forgrand juries to subpoena an individual’s telephone records from the individual’stelephone service provider, in the absence of probable cause or a warrant issuedby a judge.  The acquisition of such records, it has been held, implicates nolegitimate privacy interest of the subscriber, because the records are not his orhers 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 therecords are private, because he or she has voluntarily exposed the informationcontained in them to the telephone company, which uses them for its ownbusiness purpose of billing the subscriber.The government argues, and the district court held, that this doctrinerequires 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 modern85Case 14-42, Document 168-1, 05/07/2015, 1503586, Page85 of 97 Case 14-42, Document 170, 05/07/2015, 1503607, Page85 of 97technology requires revisitation of the underpinnings of the third‐party recordsdoctrine as applied to telephone metadata.Appellants’ argument invokes one of the most difficult issues in FourthAmendment jurisprudence: the extent to which modern technology alters ourtraditional expectations of privacy.  On the one hand, the very notion of anindividual’s expectation of privacy, considered in Katz a key component of therights protected by the Fourth Amendment, may seem quaint in a world in whichtechnology makes it possible for individuals and businesses (to say nothing of thegovernment) to observe acts of individuals once regarded as protected frompublic view.  On the other hand, rules that permit the government to obtainrecords and other information that consumers have shared with businesseswithout a warrant seem much more threatening as the extent of such informationgrows."

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