Appeals Court rules NSA bulk collection of domestic data is illegal

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**Manchu**

For example, we understand that the FBI’s new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.

Emphasis added.

The Fourth Amendment requirement that the government obtain a warrant to conduct a search is not subject to exceptions carved out by law enforcement agency regulations or policies.

The FBI argument is therefore they do not need to obtain a warrant to gather this kind of information.

Frazzled wrote:
Federal Criminal Procedure discussions.

Smith overturned Olmstead (1928) in 1979. And even if you claim to have only been familiar with Olmstead, the FBI would certainly not require a warrant to collect metadata under that case, which held that warrantless wiretapping was NOT a search for Fourth Amendment purposes.

**Frazzled**

See my edit. Evidently the issue is very much in the courts right now.

**dogma**

Peregrine wrote:

That's an entirely different question that has nothing to do with this topic.

That is wholly false. Whether or not the State can purchase data from 3rd parties is quite important with respect to the matter.

**Manchu**

We already know, from Smith v. Maryland, that we have no reasonable expectation of privacy in information we voluntarily disclose to third parties. What lobbyists are trying to convince the courts of today is that the scope of information we voluntarily disclose to telephone companies is so extensive that government access of that information should be considered a search anyway. This is a very problematic line of reasoning -- but lobbyists like to file amicus briefs because it is easier for them to legislate from the bar than to convince enough members of Congress to act, which would be the appropriate (although difficult) way to protect information we voluntarily disclose to telephone companies.

Automatically Appended Next Post:

dogma wrote:
Whether or not the State can purchase data from 3rd parties is quite important with respect to the matter.

Correct. Logically, we cannot have a reasonable expectation of privacy in the information contained in records that a person may sell.

**Frazzled**

If the phone company sold transcripts of the calls for a few would you consider that as well?

**Manchu**

Would I consider it what?

**Frazzled**

Manchu wrote:
Would I consider it what?

I'm sorry I wasn't clear, was I. Its a broader question.

In my question lets accept that courts have interpreted that there is a reasonable expectation of privacy in a person's home and their phone conversations, correct?

So the question is, what if the government uses private entities to obtain that information, circumventing the warrant process. Is it still subject to warrant? If not, philosophically (and not legally) should the government be able to do that?

**Manchu**

I'm not sure I understand your question so I will resummarize the government's argument and we can go from there:

In order to use cell phones, we voluntarily disclose certain information to companies. We have no reasonable expectation of privacy in information we voluntarily disclose to third parties (in this case, the companies). If there is no reasonable expectation of privacy, there cannot be a search for Forth Amendment purposes. A government demand for that information we voluntarily disclosed to the telephone companies therefore does not constitute a search as to us for the purposes of the Fourth Amendment. The government therefore does not need a warrant to obtain that information.

The government is not circumventing the requirement to obtain a warrant because there is no such requirement as to the information in question.

Does that answer your question?

**Frazzled**

Manchu wrote:
I'm not sure I understand your question so I will resummarize the government's argument and we can go from there:

In order to use cell phones, we voluntarily disclose certain information to companies. We have no reasonable expectation of privacy in information we voluntarily disclose to third parties (in this case, the companies). If there is no reasonable expectation of privacy, there cannot be a search for Forth Amendment purposes. A government demand for that information therefore does not constitute a search as to us for the purposes of the Fourth Amendment. The government therefore does not need a warrant to obtain that information.

The government is not circumventing the requirement to obtain a warrant because there is no such requirement as to the information in question.

Does that answer your question?

Its close but my question has moved to searches that are agreed by both parties to require warrants currently-hence my shift to calls involving actual discussions.

So to restate:
hypothetical: what are the legal and philosophical implications of the government using 3rd parties to obtain information that it would normally require a search warrant for?

1. Search of (whatever) requires a validly obtained warrant.
2. Government goes to Company A which can get said information for a fee.
3. Can the govenrment do so and avoid the warrant process? If so, what are the philosophical implications of that?

**Manchu**

Okay, to clarify, you are talking only about information NOT voluntarily disclosed to a third party, right?

So -- as I have extensively described ITT, the content of a call is customarily not voluntarily disclosed by either the caller or the person she is calling to the telephone company.

Can the government obtain a record of the call from the telephone company without a warrant?

No. Because the content of that call was not voluntarily disclosed to the third-party telephone company, obtaining that information is a search. The Fourth Amendment requires that the government obtain a warrant based on probable cause to conduct that search.

**Frazzled**

Okay, to clarify, you are talking only about information NOT voluntarily disclosed to a third party, right?

Correct Manchu, or at best its unknowing.
Your points are intriguing. Are they based on your view or case law?

Now to your reply-how is the IDing on the call list voluntary? (this is a question not a criticism).

**Manchu**

In order to place a call, you have to tell the telephone company the number you intend to reach. That is a voluntary disclosure.

**Frazzled**

Manchu wrote:
In order to place a call, you have to tell the telephone company the number you intend to reach. That is a voluntary disclosure.

Gotcha. Interesting...(strokes beard like old contracts professor used to do).

**Manchu**

Now, what happens if telephone companies make using their services conditional upon costumers consenting to call recording? Note, I'm not saying this is market-viable. Let's just assume the companies all got together and agreed to do this and no credible competitor emerged to take advantage of its unpopularity. In that case, I think the content of the call would also count as voluntarily disclosed to a third party and therefore the government could obtain the call recordings without a warrant or even arguably conduct warrantless wire taps.

But of course, that's not the issue facing us. The issue is, cell phones, social media sites, etc., currently collect a lot of data about us that we voluntarily disclose. The scope of this information is becoming so comprehensive that some believe it necessarily implicates our privacy for the purposes of the Fourth Amendment.

**Peregrine**

Manchu wrote:
This is a very problematic line of reasoning

It isn't problematic at all, unless you think that the fourth amendment is an annoying obstacle that should be limited as much as possible instead of important protection for our rights. Reclassifying cell phone metadata as private information and requiring probable cause to access it just means that the government has to have credible evidence of a crime before they start searching. It does nothing to interfere with legitimate investigations.

As for the rest, you continue to be wrong about the physical reality of how cell phones work. Your "address on an envelope" metaphor is useful for persuading the courts to allow searches without probable cause, but that's all.

**Manchu**

Congress certainly has the power to enact legislation that would require the government to get a warrant in order to obtain cell phone metadata. But the case law does not support a ruling to that effect.

Peregrine wrote:
you continue to be wrong about the physical reality of how cell phones work

No, the issue is that you do not understand the difference between a company and the computers it owns. Only some of the data sent to the company's computer is directed at the company itself.

**DrNo172000**

Peregrine wrote:
Manchu wrote:
This is a very problematic line of reasoning

It isn't problematic at all, unless you think that the fourth amendment is an annoying obstacle that should be limited as much as possible instead of important protection for our rights.

lol did you just basically argue that your reasoning is sound unless Manchu hates 'Murican FREEDOM!

**Ensis Ferrae**

Manchu wrote:

Can the government obtain a record of the call from the telephone company without a warrant?

No. Because the content of that call was not voluntarily disclosed to the third-party telephone company, obtaining that information is a search. The Fourth Amendment requires that the government obtain a warrant based on probable cause to conduct that search.

What about, as I've been saying... If it's "legal" for the Gov't to buy the phone "fingerprint" records without a warrant, why do they even need the phone company for much of anything at that point? As a previous poster has already mentioned, the FBI (and other agencies) have DRT boxes, Stingrays and the like (there are quite a few more systems that work on the same principle, but to cover my own arse, I'll leave them unmentioned) and they can use them for intelligence gathering... What's to stop an agency like the DEA or FBI, who deal in a lot of criminal activities to record the conversations for themselves, submit a warrant after the fact and make their move, after someone has already self-incriminated themselves because they had a reasonable right to privacy?

Personally, I think that far too many Federal Agencies have proven themselves to be untrustworthy with ANY information about citizens that could be considered at least sensitive, if not private. Obviously, I am in favor of reclassifying metadata from phones and electronic means as being "private" for the very scenario that I outlined above.

**Manchu**

DrNo172000 wrote:
lol did you just basically argue that your reasoning is sound unless Manchu hates 'Murican FREEDOM!

Keep in mind that Peregrine is arguing what he thinks the law should be.

I am just explaining what the law is.

@Ensis Ferrae

Generally speaking, you can only sell what you own (which is different from what you possess). Telephone companies arguably do own cell phone metadata records. But the government has no interest in buying them when it is entitled to collect them in bulk for free by law (which is what the government unsuccessfully argued Congress authorized under Section 215 of the Patriot Act).

Law enforcement agencies clearly can and probably do listen in on people's cell phone conversations. That, while certainly outrageous because it is illegal, is not really the key point. The most crucial thing is whether the government is allowed to use information obtained via surveillance to pursue a criminal conviction. They can only do that if the surveillance was undertaken pursuant to valid warrant.

**Jihadin**

From a reliable source

WASHINGTON — In an unprecedented shift in legal proceedings, the NSA has overturned the US Court of Appeals’ decision that the mass collection of telephone metadata is illegal, DB has learned.

This comes in the wake of nearly two years of legal debate, which began when whistleblower Edward Snowden really wanted to visit Moscow but couldn’t afford the trip.

“This double-reversal is unique for two reasons,” said Judge William Pauley, a Clinton appointee to the Southern District of New York who originally had voted in 2013 that the program was legal. “First, this is a unique program with unique national security implications. And second, the NSA is not part of the judicial branch of the United States government. This makes it very unusual that they would weigh in on the matter, never mind deliver a legally-binding ruling.”

The NSA’s ruling was initially met by outrage, with several members of the ACLU protesting outside the White House. One spokesman, Carla Brown, was seen in front of local cameras delivering a scathing message.

“The brutality of our Big Brother government, has gone on long enough!” she shouted into multiple microphones. She continued to encourage the people to “rise up against tyranny,” but was interrupted by a man in a suit who whispered something in her ear.

“Never mind,” Brown said, after wiping sweat from her brow. “Forget everything I just said. I need to go erase my phone records. And my emails. Oh gak. Oh gak.”

The NSA released its own statement yesterday, after which many of the arguments against the decision mysteriously began to disappear.

“You should not fear your benign overlords,” a new NSA spokesman whose name nobody could remember and who was also wearing swirly eyeglasses, said in a public statement. “The All Seeing Eye is your friend. Trust your friend. Believe in your friend.”

Cameras then showed all the members of the press conference nodding in unison.

“As for district judge Vernon Broderick, who ruled against the program,” the unnamed spokesman continued, “we understand that you are entitled to your opinion and respect your expertise as a member of the United States legal system, but there is no real potential harm to the citizens’ privacy from the collection of phone metadata. We also understand that you may not want anyone to know that number (606) 245-2999 called number (508) 295-8581 at 7:08 PM on April 6th.”

CORRECTION: The editors of Duffel Blog regrettably reported all of this article in error. The NSA does not actually exist, and there is no proof that any of our phone numbers called any 900 numbers at any time. All hail the Eye.

**Frazzled**

Ensis Ferrae wrote:
Manchu wrote:

Can the government obtain a record of the call from the telephone company without a warrant?

No. Because the content of that call was not voluntarily disclosed to the third-party telephone company, obtaining that information is a search. The Fourth Amendment requires that the government obtain a warrant based on probable cause to conduct that search.

What about, as I've been saying... If it's "legal" for the Gov't to buy the phone "fingerprint" records without a warrant, why do they even need the phone company for much of anything at that point? As a previous poster has already mentioned, the FBI (and other agencies) have DRT boxes, Stingrays and the like (there are quite a few more systems that work on the same principle, but to cover my own arse, I'll leave them unmentioned) and they can use them for intelligence gathering... What's to stop an agency like the DEA or FBI, who deal in a lot of criminal activities to record the conversations for themselves, submit a warrant after the fact and make their move, after someone has already self-incriminated themselves because they had a reasonable right to privacy?

Personally, I think that far too many Federal Agencies have proven themselves to be untrustworthy with ANY information about citizens that could be considered at least sensitive, if not private. Obviously, I am in favor of reclassifying metadata from phones and electronic means as being "private" for the very scenario that I outlined above.

Agreed.

**Ensis Ferrae**

Jihadin wrote:
From a reliable source

What's sad is that really doesn't sound very far from the truth any more.

**Frazzled**

Manchu wrote:
DrNo172000 wrote:
lol did you just basically argue that your reasoning is sound unless Manchu hates 'Murican FREEDOM!
Keep in mind that Peregrine is arguing what he thinks the law should be.

I am just explaining what the law is.

@Ensis Ferrae

Generally speaking, you can only sell what you own (which is different from what you possess). Telephone companies arguably do own cell phone metadata records. But the government has no interest in buying them when it is entitled to collect them in bulk for free by law (which is what the government unsuccessfully argued Congress authorized under Section 215 of the Patriot Act).

Law enforcement agencies clearly can and probably do listen in on people's cell phone conversations. That, while certainly outrageous to some because it is illegal, is not really the key point. The most crucial thing is whether the government is allowed to use information obtained via surveillance to pursue a criminal conviction. They can only do that if the surveillance was undertaken pursuant to valid warrant.

Unless that information is used against you in nonlegal ways, lets say intensive audits of everyone you called over the last year, that sort of things.

**Peregrine**

Manchu wrote:
I am just explaining what the law is.

No, you're defending the law. Explaining what it is would be saying "this is what the courts have ruled, it's obviously stupid and doesn't reflect the physical reality of how cell phones work, but it's the ruling we have to live with".

**Manchu**

Frazzled wrote:
Unless that information is used against you in nonlegal ways, lets say intensive audits of everyone you called over the last year, that sort of things.

That speaks to an issue far larger and much more ominous than Fourth Amendment protection of cell phone metadata.

**Frazzled**

Manchu wrote:
Frazzled wrote:
Unless that information is used against you in nonlegal ways, lets say intensive audits of everyone you called over the last year, that sort of things.
That speaks to an issue far larger and much more ominous than Fourth Amendment protection of cell phone metadata.

true dat. Some guy on a gun board was talking about making up arm bands with "Jade Helm Official Observer," "Secret UN trooper," and "Black Helicopter Pilot" on it.

**Peregrine**

Manchu wrote:
No, the issue is that you do not understand the difference between a company and the computers it owns. Only some of the data sent to the company's computer is directed at the company itself.

And you're inventing this magical difference that has nothing to do with the physical reality of the situation. Both sets of data are directed at the company's infrastructure, not any human employee of the company. If the company's infrastructure reading the radio signal from your phone and executing connect(666-666-6969, 123-456-7890) counts as "disclosure" then so should the company's infrastructure reading the radio signal from your phone and executing send_data({block of voice data}, 666-666-6969, 123-456-7890). Both pieces of data are sent to the same infrastructure and processed in the same way.

Also, even if you grant the absurd "directed at" vs. "passing through" argument the voice data is also directed at the company. For example, the company's automated billing system might use the voice data to determine how much bandwidth you've used and how much money to charge you for the call. And it will of course be reading the entire contents of the voice data, both to process it for sending to the other person and to watch for things like the "end of call" notification.

Automatically Appended Next Post:

Manchu wrote:
That speaks to an issue far larger and much more ominous than Fourth Amendment protection of cell phone metadata.

But cell phone metadata is an important part of that issue. If the metadata is protected by the fourth amendment as it should be then mass auditing of everyone you called over the past year is impossible.

**Manchu**

Peregrine wrote:
No, you're defending the law. Explaining what it is would be saying "this is what the courts have ruled, it's obviously stupid and doesn't reflect the physical reality of how cell phones work, but it's the ruling we have to live with".

First -- explaining what the law is never requires a politically motivated gloss like "and it's a stupid law." Second -- nothing about how cell phones work, at least that you have brought up ITT, contradicts the third-party doctrine.

I think there are two issues here that make us uncomfortable: (1) we still expect to exert some kind of control over personal information that we voluntarily disclose and (2) the amount of personal information we voluntarily disclose is vast in scope and can be easily collected and recorded.

The current Fourth Amendment jurisprudence does not offer a way forward for protecting the personal information we voluntarily disclose. But Congress could enact laws that do as much.

Peregrine wrote:
Both sets of data are directed at the company's infrastructure, not any human employee of the company.

Obviously incorrect. The data is transmitted through the infrastructure. One portion of the data, the data necessary to place the call, is directed at the company. The content of the call is in no way directed to the company.

Peregrine wrote:
If the metadata is protected by the fourth amendment as it should be then mass auditing of everyone you called over the past year is impossible.

Not really. The kind of corruption Frazzled invoked is well beyond caring about Fourth Amendment jurisprudence.

**Peregrine**

Manchu wrote:
Second -- nothing about how cell phones work, at least that you have brought up ITT, contradicts the third-party doctrine.

Only because you insist on ignoring the physical reality of how cell phones work. Instead of trying to force cell phones into fitting your "letter at the post office" metaphor you need to specify what exactly counts as "disclosure" and then check if the relevant piece of data meets that standard. If you set the standard for disclosure low enough to include the metadata then you also include the voice data. If you set the standard for disclosure high enough to exclude the voice data then you also exclude the metadata.

The content of the call is in no way directed to the company.

Only because your definition of "directed" is based on an incorrect post office metaphor and has nothing to do with how the voice data is actually handled.

**Manchu**

I understand that the metadata and the voice data are "handled by" the same telecommunications infrastructure. But that is not relevant to the legal question of to whom the data is being voluntarily disclosed. The caller is only voluntarily disclosing to the telephone company the data necessary to place the call.