The Supreme Court may have already ruled NSA phone surveillance is illegal | Hacker News Reader

The Supreme Court may have already ruled NSA phone surveillance is illegal

influencehacks.com

232 pointsil13 comments

Technically they didn't, but interpreting how Jones will be used going forward is like reading tea leaves. Technically the Supreme Court, in Jones, ruled that altering a car in order to track its location constitutes a search. On this matter, five justices (Roberts, Scalia, Thomas, Kennedy, and Sotomayor) agreed to rule narrowly and put off any decisions on wider surveillance for another day. Scalia's opinion of the court makes it clear that it is not deciding any issues beyond that. Sotomayor's concurrence agrees.

Beyond that point, things become a bit tricky. Alito filed a concurrence in judgement (meaning he reached the same decision on different grounds) arguing the GPS tracking was a search because it was too intrusive in terms of the information collected and therefore violated a reasonable expectation to privacy. Kagan, Breyer, and Ginsberg joined him.

If that were the end of the matter, that would not make things hard at all, but then we have to come back to Sotomayor's concurrence. In her concurrence she expressly agreed that although the case was disposed of narrowly with her support, she also agreed with the concurrence in judgement that it violated reasonable expectation of privacy, so in this she endorsed the minority opinion after joining the majority which is why this is tricky to make sense of.

At very least, the fact that 5 justices appear to agree that this is a problem gives circuit courts permission to experiment with rationales as to why this is the case. It is however premature to say that the Supreme Court has so ruled.

To recap, you have three opinions in Jones:

Opinion of the court (Scalia, joined by Roberts, Thomas, Kennedy, and Sotomayor): Reasonable expectation to privacy is not the only test of the 4th Amendment. When there is a common law trespass there is always a search. We need not decide whether this violates reasonable expectation to privacy because we can rule this was a search due to the trespass.

Concurring in judgement (Alito, joined by Breyer, Ginsberg, and Kagan): This surveillance violates the 4th Amendment due to its intrusiveness and the level of information obtained. People have a reasonable expectation to privacy that is violated by massive surveillance of this sort.

Sotomayor, concurring with Scalia: I join Scalia in ruling on narrow grounds, but I also think that Alito is right....

If I am parsing your comment correctly, is it accurate to say that there are 5 justices who agree that surveillance of cell phone location data violates the 4th Amendment based solely on the level of information collected, regardless of how it was physically obtained?

It's more complex than that. Alito suggested that factors included the amount of tracking, so tracking a car for a day would be different than tracking it for a month or a year.

So the 5 justices might differ between whether a warrant would be required for "show me all records of where this cell was for the last year" and "show me where this cell was during the day that such-and-such of a crime was committed."

I don't think there is any question that the scope and length reaches to a point where Alito's concerns or Sotomayors would be major factors though. These are huge, dragnet surveillance programs of the sort that I think worried at least 5 justices (and may have worried all of them). Collecting CDRs on all Americans on a daily and ongoing basis along with cell site location info is more intrusive than tracking a car for a few months.

The problem is that to do that kind of queries, if you don't know beforehand what information you are looking for, then you need to store everything.

A comparison can be made to EU data retention laws which stipulate that carriers should keep call records for 6 months (or somehting like that. That is how the directive is implemented here, in Sweden).

> The problem is that to do that kind of queries, if you don't know beforehand what information you are looking for, then you need to store everything.

It's worth reading up on the history of the 4th Amendment in order to realize that isn't very far from the specific situation it was intended to prevent, namely "general warrants" allowing police to search whatever homes they wanted in an investigation.

Even if this is true, what difference does it make? I mean, seriously. Is there anyone who still believes that the Federal government cares one whit about what the law and the courts say?

How many times will we repeat this cycle before people get a clue? Yes, they will do lip-service to this or that court decision, and close down one program, while simultaneously launching another, under a different moniker, doing the same or worse.

Governments make laws for the plebeians to follow. They do not make laws which they intend to follow themselves.

Because till now they could scare the public with terrorism or CP. Right now it seems the american public has awaken and is refusing to be scared by the vague external threats.

Really? What has the public done exactly that makes you think that? I still see Obama in office. I still see everyone else who signed the PATRIOT act and so on.

I think it is incredibly naive to think that the American people are any more awake to the deceit of the government than they were in the past. The next major terrorist event will have people running to Big Brother for protection, ready and willing to give up any last vestige of freedom that they might have.

Yes, I am a cynic in these matters, but I am also a student of history. Any honest appraisal of history makes one a cynic. A bayesian analysis on the question as to whether the populace will continue to be deceived and subjugated in ever greater ways and numbers is overwhelmingly at odds with utopian ideals. I see absolutely no signs of this changing, because the nature of humanity has not changed, nor will it ever change.

This is quite the amateur legal opinion - the GPS case is not really relevant to FISA

http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillan...

FISA does not trump the Fourth Amendment. Moreover, this controversy is about tracking the location of Americans in America, which is beyond the purview of FISA.

I don't think it is irrelevant at all. The problem though is that the court actually ruled officially in Jones on very narrow grounds which are inapplicable here. That 5 justices went further and said that general surveillance could reach 4th Amendment problems if large enough in scale, and that this would require rethinking existing precedent throws a real monkey wrench in things but it is premature to say the Supreme Court has ruled on this issue.

Yes, he made its amateurness clear, at length, in the opening paragraph.

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