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View Diary: ACLU sues White House over 'dragnet' data collection (113 comments)

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  •  Support for this statement? (5+ / 0-)
    an argument that collection of metadata itself violates the 4th amendment has already been rejected
    Before you say Smith v. Maryland, realize that the Court only found that there was no 4th Amendment expectation of privacy where:

    1) There was no actual interception of the content of the communications - only the phone number data (note that in regards to this PRISM program, it has been alleged that the NSA is, in fact, acquiring the contents of e-mails and texts.  Therefore, Smith v. Maryland is already distinguishable as to those e-mails and texts); AND

    2) The  information (phone numbers) provided by the telephone user to the telephone company was knowingly and voluntarily submitted.

    First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills.

    ...

    This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

    I'd posit (as I'm sure that the ACLU's attorneys will argue) that

    a) most Verizon customers DO NOT know that their cell phones are constantly transmitting many of the various types of non-phone call related metadata which Verizon is passing on to the government - and therefore such transmissions are involuntary and distinguishable from the voluntarily dialed phone numbers data in Smith; AND

    b) most Verizon customers don't know that Verizon is storing the contents of their communications such as emails, texts, etc., since, unlike telephone numbers, the contents of those communications have no legitimate business purpose for Verizon to retain and store.  

    •  yeah, that's pretty much it (1+ / 0-)
      Recommended by:
      johnny wurster

      although this suit doesn't challenge Prism, and there's a warrant process to query the data as far as I can tell.  There'll no doubt be a lawsuit, but it'd look somewhat different.  Even though the leak joined the two, they are not the same program.  

      What "most Verizon customers" think is irrelevant to the suit, and the ACLU can't credibly plead ignorance of the terms of service.

      I'm not sure about the way you distinguish Smith -- all that information is on the phone bill - maybe location data could be at issue, but i'm not sure it's a distinction that makes much of a difference for the 4th amendment in this application, given the indifference the program has to anything individual.   That also suggests ripeness problem -- why isn't the right remedy exclusion at trial?

      Difficult, difficult, lemon difficult.

      by Loge on Tue Jun 11, 2013 at 03:41:08 PM PDT

      [ Parent ]

      •  The ACLU suit (0+ / 0-)

        I do not know the details of the ACLU suit, but based on the information in the diary, the ACLU is suing as a Verizon customer over the "search" of all phone records in violation of the Fourth Amendment. The scope seems limited to that. I know of no evidence that the phone records are part of the PRISM program though, it would seem to follow that, ultimately, they are.
        At least the ACLU has standing and we should see some discovery.

        +++ The law is a weapon used to bludgeon us peasants into submission. It is not to be applied to the monied elite.

        by cybersaur on Tue Jun 11, 2013 at 04:55:41 PM PDT

        [ Parent ]

        •  Well, I'm not sure that suffices to standing (0+ / 0-)

          and I'm not sure about discovery - there'd likely to be a motion for a stay pending a motion to dismiss, and discovery would still likely be under a protective order.  Congressional hearings are more likely to yield info.

          Difficult, difficult, lemon difficult.

          by Loge on Tue Jun 11, 2013 at 07:10:54 PM PDT

          [ Parent ]

    •  #2 bugs me. (0+ / 0-)

      Few people would consider me a stupid person, but I fail to see how we simply stop at this point; so we 'all know' the various phone companies have to take our request to call a certain phone number, then use their equipment to connect this call.  For this reason we have 'no expectation of privacy'.

      After that of course it's all magic!  We're no longer using the company's equipment so we may now expect complete privacy in our conversations.

      Oh, wait.  We're using the EXACT SAME HARDWARE.  Why do we think we have an expectation of privacy when it's been decided we had none before?

      -7.38, -5.38 (that's a surprise)

      Why must we struggle to protect the accomplishments of Democrats of the past from Democrats of the present? -- cal2010

      by 84thProblem on Tue Jun 11, 2013 at 07:24:14 PM PDT

      [ Parent ]

    •  Well, that's certainly disurbing: (0+ / 0-)
      All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.
      How does that differ materially from the manner in which one checks out a book from a library?

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