A Better Ruling on NSA Surveillance

The decision today by Judge William H. Pauley III of the U.S. District Court for the Southern District of New York — which upheld the NSA’s metadata program — is far better than the recent ruling by Judge Richard Leon of the D.C. Federal District Court holding the program unconstitutional(which I addressed here).

Unlike Judge Leon’s decision, the New York decision  does not attempt to overrule the Supreme Court’s previous cases on search and seizure. As I’ve noted before, the Court held In Smith vs. Maryland that phone calling records were not protected by the Fourth Amendment because the individual had handed over the data to a third party (the phone company). If they are unprotected by the Fourth Amendment, law enforcement and national security agencies do not need a warrant to collect and search the data.  

Judge Pauley did his duty and obeyed Smith, while Judge Leon tried to escape it. It is up to the Supreme Court, not a trial judge, to decide whether to overrule Smith. But the conflicting decisions (unless the D.C. Circuit overrules Judge Leon) seems guaranteed to send the issue to the Supreme Court for the last word. 

  1. danceswithvowels

    At the risk of flailing at a deceased equine, I’ve never understood the appeal (hah!) of Maryland v. Smith. I think “pen registers” should have been treated exactly as wiretaps, and no further. We shouldn’t allow our phone conversations (handled by a third party, it should be noted) to be recorded, in case there’s some need for them in the future. And we shouldn’t have our data (no matter how “meta” someone claims it to be) prophylactically collected by our governments either.

    There are many cases where we “necessarily turn over our information to a third party” and yet expect to have our privacy respected and protected. I reveal my credit card numbers to hundreds of businesses every year, but I don’t find that a compelling reason for my card numbers or transactions to be forwarded to anyone, criminal or governmental.

    I don’t think it’s acceptable for anyone to line the streets with visible- and infrared-light cameras to monitor activities in our homes (for our own good, naturally), though we necessarily radiate heat and light by virtue of living.

    Wouldn’t nearly all of the Founders’ “papers and effects” involve third parties?

  2. Byron Horatio

    What a bogus ruling. Why do Fourth Amendment protections end once we have given information to a third party? Hypothetically, if two people paid me, a third party, to rent my property and engage in secretive conversations on the said property, does the government have unfettered access to this conversation since it was conducted through the medium of a third party?

  3. Mike H

    I respect and admire John’s intellect and achievements, but his defence of statism in the name of jurisprudence consistency upsets me on a regular basis.

  4. Byron Horatio

    I do not defer to the Supreme Court in issuing edicts on what is constitutional. Lord knows the Court has historically ruled against liberty and in favor of tyranny. So it is perplexing that when a judge finally rules against the expansion of Leviathan, Republicans join hands with Democrats to decry the expansion….or more accurately, the affirmation of privacy.

  5. Klaatu
    Byron Horatio: What a bogus ruling. Why do Fourth Amendment protections end once we have given information to a third party? Hypothetically, if two people paid me, a third party, to rent my property and engage in secretive conversations on the said property, does the government have unfettered access to this conversation since it was conducted through the medium of a third party? · 1 hour ago

    But if the parties knew that you regularly recorded and stored the names of those who entered your property and the times they did so for basic business purposes, they would have no expectation that their comings and goings would be private.  The government getting that information from you would not violate their 4th Amendment right against unwarranted search.

  6. Mike H
    Klaatu

    Byron Horatio: What a bogus ruling. Why do Fourth Amendment protections end once we have given information to a third party? Hypothetically, if two people paid me, a third party, to rent my property and engage in secretive conversations on the said property, does the government have unfettered access to this conversation since it was conducted through the medium of a third party? · 1 hour ago

    But if the parties knew that you regularly recorded and stored the names of those who entered your property and the times they did so for basic business purposes, they would have no expectation that their comings and goings would be private.  The government getting that information from you would not violate their 4th Amendment right against unwarranted search. · 0 minutes ago

    It might not violate the 4th Amendment, but it violates common decency,  which even Conservatives don’t seem to require of their government.
  7. civil westman

    Smith v. Maryland is another one of those legal fictions, where the law exists in some parallel universe separated from reality. Like my medical records, phone records are created and owned jointly by me and the company. When I call the phone company (Verizon) on business matters, the company asks my permission to access my records! So, Verizon and I agree that these records are private. How then has the court power to undo our freely-entered contractual agreement?

    BTW, expect the government to regularly exempt itself from privacy strictures of HIPAA. That law exists only to make it difficult to transmit medical information which you do wish to share with other parties. It protects you not at all from state intrusion.

  8. Klaatu
    Mike H

    Klaatu

    Byron Horatio: What a bogus ruling. Why do Fourth Amendment protections end once we have given information to a third party? Hypothetically, if two people paid me, a third party, to rent my property and engage in secretive conversations on the said property, does the government have unfettered access to this conversation since it was conducted through the medium of a third party? · 1 hour ago

    But if the parties knew that you regularly recorded and stored the names of those who entered your property and the times they did so for basic business purposes, they would have no expectation that their comings and goings would be private.  The government getting that information from you would not violate their 4th Amendment right against unwarranted search. · 0 minutes ago

    It might not violate the 4th Amendment, but it violates common decency,  which even Conservatives don’t seem to require of their government. · 0 minutes ago

    We obviously have a different standard of decency.

  9. Mike H
    Klaatu

    We obviously have a different standard of decency. · 2 minutes ag o

    Probably, my standard involves the government doing nothing that would be offensive for the private citizen to do.

  10. Klaatu
    Mike H

    Klaatu

    We obviously have a different standard of decency. · 2 minutes ag o

    Probably, my standard involves the government doing nothing that would be offensive for the private citizen to do. · 0 minutes ago

    I see nothing offensive in the private citizen in the situation described collecting this information.

  11. Carey J.

    The government needs this information so they will know who to torture. They can’t just go around torturing anybody. Or can they?

  12. Neolibertarian

    Dr. Yoo, if what you say is true, then I strongly believe we need federal laws clearly preventing or limiting such data sweeps, or we need an amendment to the Constitution.

    My children and grandchildren are bound to be adversely affected by such a program.

    Information is power.

    We’re gifting the NSA with almost unimaginable power for no compelling reason. If there is a compelling reason, then to keep the pretense of having a free society, those advocates for the NSA program must come forward and make their case to the public.

    I’m not moved by your belief that so much information collected centrally by the government is necessary to keep me safe. Nor does such a program give me peace of mind.

    If the threat were so dire, then the prescription for prevention is patently obvious and requires zero dollars, and requires the hiring of zero bureaucrats.

    On the morning of 9/11, had the passengers not been disarmed before they boarded those planes, there would have been 19 dead foreign nationals, along with some inevitable collateral damage among the passengers.

    But no event that “changes everything” about Americans’ way of life.

    Radical idea?

    Check the mirror.

  13. genferei

    Suggested New Year’s resolution: not to post an article discussing a judgment without a link to that judgment or a note on why such a link is not available.

  14. Carey J.
    Mike H

    Klaatu

    Byron Horatio: What a bogus ruling. Why do Fourth Amendment protections end once we have given information to a third party? Hypothetically, if two people paid me, a third party, to rent my property and engage in secretive conversations on the said property, does the government have unfettered access to this conversation since it was conducted through the medium of a third party? · 1 hour ago

    But if the parties knew that you regularly recorded and stored the names of those who entered your property and the times they did so for basic business purposes, they would have no expectation that their comings and goings would be private.  The government getting that information from you would not violate their 4th Amendment right against unwarranted search. · 0 minutes ago

    It might not violate the 4th Amendment, but it violates common decency,  which even Conservatives don’t seem to require of their government. · 1 hour ago

    The problem is the Certified Pre-Owned Moderates™ who cover for this sort of thing.

  15. Klaatu
    civil westman: Smith v. Maryland is another one of those legal fictions, where the law exists in some parallel universe separated from reality. Like my medical records, phone records are created and owned jointly by me and the company…

    By what measure are the phone records owned by you?  You contract with a service provider and the service you are provided requires the provider record the numbers you dial, when you dial them, and the duration of the calls.  How do you claim ownership of data the service provider collects and controls?

  16. Klaatu
    genferei: Suggested New Year’s resolution: not to post an article discussing a judgment without a link to that judgment or a note on why such a link is not available. · 12 hours ago

    I linked to the judge’s order over at the Member feed here.

  17. danceswithvowels

    I don’t believe it follows that the incidental or accidental involvement of a third party necessarily kills any expectation of privacy. We have quite a body of laws and precedents arguing the opposite position for significant aspects of our lives, including client-attorney privilege, medical records, trade secrets, insider knowledge, etc. Just because someone may have learned a bit about you, your whereabouts, associations, and/or dealing doesn’t mean they should tweet it to the rest of us.

    Since Edward Snowden was a contractor working for a third party, and, in fact, all of our defense, IT, and communications contractors necessarily have access to parts of our national secrets, I gather from the argument in this ruling that we should therefore have no expectation of privacy or secrecy for that information. It follows that it was no big deal for Mr. Snowden to inform the public, Congress, and even Jim Sensenbrenner about what the NSA is up to.

  18. Klaatu
    danceswithvowels: I don’t believe it follows that the incidental or accidental involvement of a third party necessarily kills any expectation of privacy. We have quite a body of laws and precedents arguing the opposite position for significant aspects of our lives, including client-attorney privilege, medical records, trade secrets, insider knowledge, etc. Just because someone may have learned a bit about you, your whereabouts, associations, and/or dealing doesn’t mean they should tweet it to the rest of us.

    Since Edward Snowden was a contractor working for a third party, and, in fact, all of our defense, IT, and communications contractors necessarily have access to parts of our national secrets, I gather from the argument in this ruling that we should therefore have no expectation of privacy or secrecy for that information. It follows that it was no big deal for Mr. Snowden to inform the public, Congress, and even Jim Sensenbrenner about what the NSA is up to. · 6 minutes ago

    The knowledge in question is neither accidental nor incidental.

    Snowden, like all defense contractors, was bound by legally binding non-disclosure agreement and federal statutes prohibiting the release of classified information.

  19. danceswithvowels
    Klaatu

    By what measure are the phone records owned by you?  You contract with a service provider and the service you are provided requires the provider record the numbers you dial, when you dial them, and the duration of the calls.  How do you claim ownership of data the service provider collects and controls? · 27 minutes ago

    In the same sense that emails I send via Gmail are “owned” by me. I am responsible for their initiation and content. I do not expect any details about them to be divulged to additional parties without probable cause and a court order.

    If I go to the doctor, and a specimen is taken and sent to a lab, I retain some sense of ownership for my biohazardous materials and the results of the labwork, even though I expect the sample to be destroyed. I don’t want it returned to me, but I don’t expect them to send it to someone else. I don’t expect the lab to post my results to Facebook, or suggest other people with similar pathologies I may want to connect with on LinkedIn. Sending statistics to the CDC is okay, but not my particulars.

  20. danceswithvowels
    Klaatu

    … was bound by legally binding non-disclosure agreement and federal statutes prohibiting the release of classified information. · 17 minutes ago

    Precisely. The Smith v. Maryland makes everything seem as though such arrangements are impossible on their face. HIPAA and any number of other arrangements argue that is nonsensical. We have many private facts protected by laws and statutes. If we can have national secrets with millions of parties holding clearances, my contracting with a communications company shouldn’t preclude the possibility of privacy.

    Why can’t we include a form of client-attorney privilege by reference in a phone contract?