OK

This is only a Preview!

You must Publish this diary to make this visible to the public,
or click 'Edit Diary' to make further changes first.

Posting a Diary Entry

Daily Kos welcomes blog articles from readers, known as diaries. The Intro section to a diary should be about three paragraphs long, and is required. The body section is optional, as is the poll, which can have 1 to 15 choices. Descriptive tags are also required to help others find your diary by subject; please don't use "cute" tags.

When you're ready, scroll down below the tags and click Save & Preview. You can edit your diary after it's published by clicking Edit Diary. Polls cannot be edited once they are published.

If this is your first time creating a Diary since the Ajax upgrade, before you enter any text below, please press Ctrl-F5 and then hold down the Shift Key and press your browser's Reload button to refresh its cache with the new script files.

ATTENTION: READ THE RULES.

  1. One diary daily maximum.
  2. Substantive diaries only. If you don't have at least three solid, original paragraphs, you should probably post a comment in an Open Thread.
  3. No repetitive diaries. Take a moment to ensure your topic hasn't been blogged (you can search for Stories and Diaries that already cover this topic), though fresh original analysis is always welcome.
  4. Use the "Body" textbox if your diary entry is longer than three paragraphs.
  5. Any images in your posts must be hosted by an approved image hosting service (one of: imageshack.us, photobucket.com, flickr.com, smugmug.com, allyoucanupload.com, picturetrail.com, mac.com, webshots.com, editgrid.com).
  6. Copying and pasting entire copyrighted works is prohibited. If you do quote something, keep it brief, always provide a link to the original source, and use the <blockquote> tags to clearly identify the quoted material. Violating this rule is grounds for immediate banning.
  7. Be civil. Do not "call out" other users by name in diary titles. Do not use profanity in diary titles. Don't write diaries whose main purpose is to deliberately inflame.
For the complete list of DailyKos diary guidelines, please click here.

Please begin with an informative title:

Originally published in Tikkun Daily

The Supreme Court unanimously ruled today in Riley v. California that digital privacy is protected by the Fourth Amendment, holding that law enforcement must produce a warrant to search an arrestee's cell phone or mobile device.

While this decision only addresses physical searches of a person's cell phone, Riley v. California may not-so-subtly be signaling that potential legal thorns exist for the NSA and the intelligence community, particularly after one specific sentence written by Chief Justice John Roberts, who authored the decision. However, before examining this aspect of the court's decision, first let's briefly examine how Riley v. California has unmistakably distinguished digital privacy as a Fourth-Amendment-protected entity when it comes to physical searches by police.

One of the most significant aspects of today's ruling was the court's distinguishing digital devices from other items a person might have on their person when searched by law enforcement. Justice Roberts wrote that such devices today contain digital records of "nearly every aspect of [one's] life," and therefore cannot be treated during a search as merely one in a number of items an arrestee might have in her pockets:

Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.
Writing for the court, Roberts notes that a cell phone reveals exactly the type of intimate information the NSA can cull from its digital surveillance, such as the exact, minute-by-minute movements of a person. This type of information, the court now holds, cannot be accessed without a warrant during a search by the authorities.

So, on the issue of a whether or not police rifling through an arrestee's cell phone constitutes a search, the court is now unambiguously clear: it is indeed, and one that requires a warrant. Why? Because one's digital life is protected by the Fourth Amendment.

However, what about the digital surveillance of U.S. citizens by the NSA? Does that constitute a search as well? This is the critical question. On this question, it is impossible to glean the court's answer in Riley v. California, though one line by Roberts suggests that the NSA should be worried.

See, the Obama administration holds that, with all of the privacy safeguards in place during metadata searches, NSA surveillance cannot possibly violate a citizen's Fourth Amendment rights, since such surveillance does not constitute an actual search. There are protocols in place which protect citizens' privacy, making NSA surveillance substantively different than a police officer looking at an arrestee's iPhone pictures.

However, as Tim Edgar in Lawfare writes, Roberts blows this "protocols" argument out of the water with one sentence:

The Chief Justice made short shrift of a similar argument in Riley, when the government said it would develop “protocols” to deal with the privacy problems its cell phone searches would create in an age of cloud computing.  “Proba­bly a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols,” he said.  As someone who wrote and reviewed many such guidelines for intelligence agencies, I couldn’t agree more!  I expect to see this quote in brief after brief, whenever the government says internal safeguards are good enough.

There is undoubtedly some heartburn at the NSA on this point.  Safeguards and oversight matter.  The Supreme Court reminds us that they are no substitute for the Constitution.

The Founders did not fight a revolution to gain the right to government agency protocols. This sentence should be enough to give those at the NSA pause, particularly, as Marcy Wheeler notes, since most of the NSA's justifications are based on its internal protocols.

Wheeler writes:

For every single dragnet program the government conducts at NSA, it dismisses obvious Fourth Amendment concerns by pointing to minimization procedures.

[...]

Everything, everything, ev-er-y-thing the NSA does these days complies with the Fourth Amendment only under the theory that minimization procedures — “government agency protocols” — provide adequate protection under the Fourth Amendment.

There is a long way to go legally for NSA surveillance to be ruled unconstitutional. However, at the very least, that legal groundwork has not been harmed by Riley v. California. At most? That groundwork has been squarely placed in the soil with an evocation of the Founding Fathers and a backhanded reference to "agency protocols" by the Supreme Court's Chief Justice.

--§--

What Do You Buy For the Children 
David Harris-Gershon is author of the memoir What Do You Buy the Children of the Terrorist Who Tried to Kill Your Wife?, recently published by Oneworld Publications.


Intro

You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

Extended (Optional)

Originally posted to David Harris-Gershon (The Troubadour) on Wed Jun 25, 2014 at 07:05 PM PDT.

Also republished by Writing by David Harris Gershon.

EMAIL TO A FRIEND X
Your Email has been sent.