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Comment by acangiano | Hacker News Reader

This passage is just beautiful:

"Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."

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Agreed. I also really like this passage later on:

"These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

Why would the same not apply to the Internet cables the NSA directly taps all over the World?

It's generally not useful to quote flowery language like this, because it's not legally operative. It might justify a particular application of the law, but it isn't the law. It is what lawyers call "dicta."

NSA wiretaps differ in two key ways:

1) At least in theory, they are intended to capture foreign communications. People not on U.S. soil who are not U.S. citizens enjoy no protections under our Constitution.

2) This case is based on interpreting the "search incident to arrest" exception to the 4th amendment's warrant requirement. The essence of the exception is that while a warrantless search of someone's person is potentially the most egregious of fourth amendment violations ("person" being specifically enumerated in the text of the 4th amendment), it is nonetheless reasonable in the context of a search incident to arrest,[1] where it might be necessary in order to secure the arrestee, who might have a gun or throw away evidence.

An undersea cable is totally different. It is not a search of anybody's "person" but a search of something containing signals that people are transmitting out into the world. There are four specific things enumerated in the 4th amendment: someone's house, person, papers, and effects. It is clear how searching a phone in someone's pocket is a search both of their person and their effects. But signals transmitted out into the world does not fit neatly into any of those four categories. For example if those signals were transmitted via radio versus fiber optic cable, would it be a "search" to listen in on them?

Now, the language of the case is relevant in that it suggests the Court may be open to a more expansive reading of the 4th amendment when it comes to digital data. There is no way the conservatives on the court would favor extraterritorial application of the Constitution with regards to undersea wiretaps, but it could bode well for challenges to domestic surveillance.

[1] Incidentally, as the opinion notes, the touchstone of the 4th amendment is "reasonableness." This fuzzy word is used explicitly in the Constitution to allow judges to engage in line drawing and balancing the interests of law enforcement with privacy rights.

What you say is true, but the Court's language in this case strongly suggests that it would find a similar privacy right in documents held in the cloud independently of cellphones. This is contrary to Smith vs Maryland, which the government uses as justification for gathering metadata, in which it was held that a single phone number could be passed to the police without a warrant because it had already been voluntarily shared with the phone company. Hence when the NSA "grab everything" policy eventually winds up in the Supreme Court it is likely to be judged contrary to the fourth amendment.

From a privacy right in documents held on my behalf by a third party it is a very small step to a privacy right in documents in transit from one place to another, especially if encryption has been used to protect the documents in transit. Thus the Court seems to be angling towards a new third party doctrine in which people have a reasonable expectation of privacy (and hence fourth amendment protection) for documents held on their behalf by a third party provided that the third party has undertaken to keep the documents private.

Your question about radio versus cable is simple to answer. Data transmitted by a cable requires physical access to the cable to intercept, while a radio broadcast is, by its nature, sent to anyone capable of receiving it. Hence it is perfectly reasonable to argue that anyone transmitting data via radio has given up any expectation of privacy in that data, but that this has not occurred for data transmitted through a private cable. Of course most people transmitting private data via radio will encrypt it, and encryption clearly signals an intention to keep the data private.

An undersea cable is the private property of the company that owns it. If that company is a US person then obviously it enjoys constitutional protection. Even if it is not, the new third party doctrine I talked about above would protect the documents of US persons from arbitrary US government search even when held or transmitted by a non-US company.

You're right that the discussion on page 21 of the opinion suggests that the Court would find a privacy right in documents held in the cloud. Indeed, the government seemed to have conceded that point! "The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud." Slip. Op. at 21. Incidentally, I strongly suggest that anyone who says "the Court doesn't understand computers" read pages 19-21 of the opinion. It's a very cogent, if layman's description of the technical aspects of the case.

However, I don't think the opinion contradicts Smith v. Maryland. There are two aspects to that case: 1) the user has knowingly exposed the phone number to the phone company; 2) the phone company doesn't just have access to the phone number, but actively processes it for billing purposes. I think the second prong distinguishes this case from a typical cloud service, which the court analogizes as being an extension of the local storage of the device.

Still, I'm quite astounded at the direction of the discussion on page 21, and interested to see how the court will draw the contours. I think the "right answer" is to extend 4th amendment protection to documents in the cloud when "the third party has undertaken to keep the documents private" but not, e.g., when it mines those documents for commercial purposes. This is straightforwardly analogous to a safe deposit box, where the bank holds the box, but doesn't open it up and make use of its contents.

Interesting ... another interpretation I read was that "The United States" is a party to the case and it's their opinion the court is talking about: The court itself is specifying no opinion on the matter.

That is an issue that should be mentioned, but I wouldn't quite characterize it that way.

> The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud. See Brief for United States in No. 13–212, at 43–44. Such a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house. But officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud.

Slip. Op. at 21.

There's two ways to read the first sentence.

1) We will assume for the sake of argument that documents in the cloud are protected, as the government says.

2) Even the government admits that documents in the cloud are protected.

Because the Court follows up with its own analogy ("like finding a key in a suspect's pocket"), I think reading (2) is more natural. The Court isn't just restating the Government's opinion, but acknowledging the shared premise, with the implication that the Government must share reasoning that logically flows from that premise.

For those interested, the distinction is between the "obiter dicta" (http://en.wikipedia.org/wiki/Obiter_dictum) and the "ratio decidendi" (http://en.wikipedia.org/wiki/Ratio_decidendi).

I guess I don't get the distinction in the comparison. Let me lay out a simple example:

a. I hold a picture on my mobile phone. I transmit this picture using the phone's built in radio to a friend of mine.

b. I hold a picture on my laptop. I transmit the picture to a friend using my internet connection provided by my ISP.

I get that the government cannot access my phone and pull the picture from it (that would be a warrantless search of both my person and my effects). However, once I send the picture into the world, why does it matter whether I used an undersea cable or a communication satellite or a carrier pidgin? If the Supreme Court rules that neither my phone nor any communication to/from it may be searched without a warrant, then it should follow almost immediately that the same rules should apply to any consumer communication device, no?

Edit: in both cases above, let's assume that my friend is not a US citizen and is not located in the US.

I think one of the main distinctions that people fail to make in this discussion is that in these cases, the evidence of the warrantless search was entered against them in a court of law. They needed a warrant to view the phone data and then to use that as evidence against you, in this case they said the search was illegal so all fruit of the poisonous tree could not be introduced at trial. While I disagree with what the nsa is doing, they are not using the evidence obtained illegally against you, granted you do have the right to be free of unreasonable searches and seizures, which was one of the main complaints back in colonial days wrt general writs, which is why that language is there. They are two different things, one is the right be to free of unreasonable searches (nsa), and another related to the use of evidence you had on you at time of arrest being searched as part of you being taken in to custody.

> While I disagree with what the nsa is doing, they are not using the evidence obtained illegally against you

Except they did, by passing it to other agencies and then falsifying their chain of investigation through "parallel construction".

The government cannot legally access this picture either without a warrant.

Unless you're crossing the no-rights zone otherwise known as the border.

No, the "no rights zone" only applies to non-USPERs outside of U.S. soil. NSA might reasonably be able to claim that they didn't know a given email address used outside the U.S. actually belongs to a U.S. person, but they'd have a much harder argument claiming that a phone issued to a U.S. area code didn't reasonably belong to a U.S. person, even if used overseas.

He meant that the border police can search you, your car, your phone, without a warrant, as long as you are within a radius of 100 miles from the border. That's named the 'constitution free zone'

> as long as you are within a radius of 100 miles from the border.

The rule is more nuanced than that. Until you cross all border control points then you can still be searches as if you were crossing a border. The rule you're talking about is that these border control points can be within 100 miles from the border to allow for efficiency of operation of border controls. Imagine if literally every border crossing to Canada had to have a dedicated CBP outpost manned every hour that the road itself is open.

That is false. Border Patrol claims the right to enter private property and homes of citizens without a warrant within 100 miles of the border.

It was a matter of beauty and not utility.

> But signals transmitted out into the world does not fit neatly into any of those four categories.

Therein lies IMO one of the big issues with US justice: the law is interpreted literally. But the aim of the original law (what it attempted to protect or achieve, i.e. the citizens' privacy) is not really deemed relevant.

> Therein lies IMO one of the big issues with US justice: the law is interpreted literally. But the aim of the original law (what it attempted to protect or achieve, i.e. the citizens' privacy) is not really deemed relevant.

In the US legal system, the intent of the law is considered quite relevant in the application of the law.

By some judges, not by others. If you adhere to a strict textualism of the sort favored by Justice Scalia, intent is a nice frame for the picture, but needs to be epressed operationally, eg Justice Scalia has little time for quotations from the Congressional record about what lawmakers aimed to achieve, and prefers to focus on the text of the law that was passed rather than the goal that was intended to be achieved. Likewise, justices have argued that the best cure for a bad law is zealous enforcement, which will (it is presumed) lead to its displacement by a better law.

These are not the only views in play in the judiciary, but they are important ones nonetheless. I recommend a book by Richard Posner called 'How Judges Think' which offers and accessible and thought-provoking view of the clashes between different philosophies or jurisprudence.

Scalia's textualism is more nuanced. When we say something like "what the lawmakers aimed to achieve", there is an implicit assumption that all lawmakers agreed with the intent of the legislation. But what they vote on is the text of the legislation, not the intent.

So while there might be a committee of 14 congressmen that intend a law to act a certain way, there is a larger group that then proceeds to debate and enact the law, that may not share that intent, but may share the intent as codified in the law, which may be narrower or broader than the intent of the people who wrote the legislation itself.

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I thought the Founders were fighting against the so-called needs of law enforcement; so much so that the US literally exists because of heavy-handed governmental action.

The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods.

This so-called "law enforcement need" is the creation of a few odd ducks such as Richard Nixon and Nancy Reagan, and has caused more damage to privacy than the NSA ever could.

> The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods.

The Fourth Amendment was passed after there was ever a threat to Sam Adams's goods (indeed, how they can be "smuggled" when they were fully legal under Masschusetts law?). The reason the Fourth Amendment was an Amendment and not already in the Constitution was because the Federalists (predominantly from New England) felt the Constitution already covered those rights implicitly (luckily for us, the anti-Federalists forced them to pass a bill containing specific rights).

Where Sam Adams comes into the Fourth Amendment is that the new Americans resented the old writs of assistance that gave British customs officers incredibly wide powers to search (and even seize IIRC) anything they wished. So the Fourth Amendment removed that concept completely by directing that any unreasonable search of a person or their house, papers or effects much be done under a warrant that was specific in nature.

I don't know where the libertarian meme that the colonial Americans were fighting against government or the law came from. There were many reasons they fought, but you can look at the Declaration of Independence for a good overview as to the why. But in short, they fought for their rights as Englishmen, not against the idea of law or order.

The debates that did occur about government occurred about things like the balance of power between state and national government (c.f. the Tenth Amendment), not with the idea of common law (which the new nation adopted wholesale from the U.K.) or of government (which the colonists had been practicing on their own for more than 150 years by then).

> So the Fourth Amendment removed that concept completely by directing that any unreasonable search of a person or their house, papers or effects much be done under a warrant that was specific in nature.

It prohibits unreasonable searches outright (it doesn't require a warrant for unreasonable searches), and also limits warrants to certain standards. (Implicitly, it has been held to also mean that warrants are usually necessary for a search to be reasonable, since if there were no generally-applicable warrant requirement for reasonableness, the limitation on the conditions in which warrants may be issued would be meaningless.)

The Aereo decision (also released today) was all about the intent of the Copyright law changes of 1976, not the letter of it.

I practice law elsewhere, but if I were a lawyer for the NSA, I would be scared after reading this opinion. Some of its reasoning about cell phones is directly applicable to the NSA's reported invasions of Americans' cell phones, indefinite collection of all Americans' call logs, and other matters. Admittedly, the Court tends to defer more to the executive branch in national security contexts than in criminal ones like this, but this opinion is ominous for some of the NSA's surveillance programs. In some places, the opinion's discussion of the inherent intrusiveness of cell phone searches reads very much like Judge Leon's rejection of the NSA's phone metadata collection program from December 2013 (http://online.wsj.com/public/resources/documents/JudgeLeonNS...).

And it's ominous for the NSA not just because the reasoning is directly applicable to some NSA programs, it's also that all 9 Justices signed on to an opinion that is more than assertive; it is scathing and sarcastic. E.g., Justice Roberts mocks the government for calling a cell phone search 'materially indistinguishable' from a search of a wallet, purse, or address book. That is "like saying a ride on horseback is materially indistinguishable from a flight to the moon" (p. 17).

This line alone would make an NSA lawyer blanch: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime... Privacy comes at a cost" (p. 25). NSA lawyers should be seriously concerned that in the criminal context, the Court unanimously announced a broad rule that the government almost always needs a warrant to search even an arrestee's cell phone - and then blithely dismissed the government's arguments about the after-effects of such a rule, saying, "Oh well, privacy comes at a cost."

Not really, the NSA's actions were deemed to not be a search and as such would not fall under the same reasoning used in this case.

If you read this ruling about cell phones Roberts made it clear they were declaring the officer's actions to be a search, hence requiring the warrant.

No - the Supreme Court has not ruled on any of the NSA's recently disclosed programs. So they haven't had the chance to say whether they're searches.

And on that threshold question of whether any NSA surveillance programs are "searches" under the meaning of the Fourth Amendment, the Supreme Court would ask if a challenged program violates American citizens' "reasonable expectation of privacy." Much in this opinion would be directly relevant to that question.

"if I were a lawyer for the NSA" ... well, I think you're mistaken already. I'm not sure the NSA operates the way you think it does (or the way many people hope it does). Considering that FISA courts (http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...) seem to operate outside the jurisdiction of our normal legal system, and considering the NSA is considered part of the US military with no Congressional oversight allowed (http://en.wikipedia.org/wiki/Nsa#Legal_accountability) I'm not sure this ruling with have any bearing on the NSA.

No, the NSA can be challenged in court. Actually, both my post and the Wikipedia article you cite in your reply refer to federal suits against the NSA. In the recent past, courts would throw out NSA lawsuits because plaintiffs couldn't prove they had been personally surveilled, which left them without standing to sue. (Example: https://en.wikipedia.org/wiki/American_Civil_Liberties_Union...). Since Edward Snowden's revelations showed that some NSA programs target every American, that has changed.

And in the future, anti-NSA plaintiffs will be able to use the Supreme Court's legal analysis of the inherent invasiveness of cell phone searches.

Two reasons

1) Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government). NSA does (claim) to attempt to identify communications of US citizens it intercepts "overseas" and doesn't look at them without cause.

2) NSA breaks the law. Routinely it would appear.

#1 is quite simply not true. Almost all US citizens I've spoken to feel strongly that we should respect others rights as we want ours to be respected.

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?ar...

Just because its a reason they give, doesn't make it valid - but I guess thats what your #2 was addressing =)

No, the previous statement accurately captured the U.S. government's position: "Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government)"

Note I'm not making a normative statement here; rather I'm agreeing with the previous statement that this is FedGov's claim about the extent to which the BoR applies to non-US citizens abroad.

It's a fairly common interpretation in many areas of law.

E.g. while it hasn't reached the Supremes, a bunch of states that have shall issue concealed carry regimes have been forced by the courts to extend these to permanent resident aliens (AKA Green Card holders), who in general are pretty much treated as citizens except they can't vote and of course can be deported.

There is a differences(sometimes vast) between what is "true" and what is "right". As much as it pains me, the US Government does not consult me on matters of ethics. What it does do is still true. Regardless of whether you, I, or anyone else believe it to be wrong.

btw "(according to US Government)" should have made it clear that it was a reported fact and not a value judgement by the author, me.

Simple: the NSA isn't a law enforcement agency. It's not presenting evidence in court.

A bit off topic, but your comment did lead me to think that there may be a alternative way to curb NSA civil liberties abuses: treat it like an island.

Right now, one of the biggest problems with the NSA for civil liberties is that it routinely cooperates with other domestic law enforcement agencies such as the FBI and local law enforcement.

With this is mind, we may also want to consider pushing for laws that isolate the NSA from domestic law enforcement by making any communication between the NSA and domestic law enforcement a crime without oversight from the public. A policy like this would not be without precedence, since we use a similar mechanism, the "chinese wall", in the financial world to separate departments of financial institutions that have a conflict of interest. The beauty of a "chinese wall" even though its not 100% effective is that there is absolutely no ambiguity in the mind of the individual when they themselves are doing something illegal/unethical.

The citizenry of this country should seriously consider erecting such a large wall between the NSA/CIA and domestic law enforcement that one cannot talk to the other in any form without mediation (at work or outside of work) without it being a felony.

A policy like this would go a long way to preventing abuses like parallel construction since it makes an activity at the human level a felony. Policies that aim to police organizational behavior are never as effective as policies that aim to police the activity of rank and file employees, since the enforcement of the former suffers from diffusion of responsibility. Specifically saying "Activity X is illegal and you'll be held responsible regardless of whether or not your superior(s) commanded you to do something" is a great way of curtailing institutional problems. Show me a corrupt institution and I'll show you that it is an institution where none of the crimes are policed at the level of the individual at the bottom.

Isolating the NSA is as important for freedom and liberty in the world as passing laws that police its organizational behavior.

That being said, we should still push for curbing all the civil liberties abuses currently practiced and putting rules in place preventing future abuses.

It's not a bad idea; there's in theory a very weak such wall already present so it's not as if there's no precedent. And I'd certainly feel better knowing that techniques like parallel construction could be replaced with a formal mechanism under strong oversight for use in serious criminal cases, without destroying intelligence sources and methods.

Yes, I agree, this might be a workable solution to satisfy both civil libertarians and those who think the NSA should be permitted all the access it wants.

One could even argue that the Posse Comitatus Act already mandates such a wall.

As much as I would love it if the Posse Comitatus Act addressed this, the fact that it focuses on "enforcement" by the military means it probably would be deemed as not applicable here. The NSA and CIA are providing informational support that violates numerous parts of the bill of rights, but the enforcement itself is still being carried out by the FBI, ATF, Secret Service and state and local police.

At the time Posse Comitatus was passed, I don't think anyone ever envisioned that technology would one day permit pervasive ever-present surveillance.

Are there any parts of the act that specifically attempt to curtail supporting enforcement by other means using language that could apply to information sharing techniques used in parallel construction?

I have to admit that was a stretch on my part. I was just thinking that "enforcement" could be argued to include the provision of relevant information.

But the question isn't so much whether one could make the argument as how many people would be likely to be sympathetic to such a broad reading of the act. An increasing number, perhaps...

Hm... not so sure why this fact allows them to trample the Constitution or the Bill of Rights.

It's not about allow, it's about stop.

Most politicians in DC have no interest in stopping what the NSA is doing, so it isn't going to get stopped.

For the same reason that French laws don't apply to German activities outside of France.

Look at the footnote on page 18 of the opinion for a smidgen of context - it doesn't exactly explicitly mention wiretapping, but "the collection or inspection of aggregated digital information . . . under other circumstances" looks close enough.

Reproduced here:

Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.

Simple answer: you don't have a resonsable expectation of privacy when you send something along the wire. This begs the question is info on the wire the same as sending a letter like generations before us did?

A cellphone is just like a briefcase 30 years ago. It has all my letters (email), work papers (files) and other personal info like an address book.

Present such a case to the Supreme Court and let's find out. :-)

It does, but the Supreme Court can't just issue an advisory opinion on the matter without a case or controversy properly before it.

Those are illegal as well.

This raises the interesting question of whether you can have an app that detects (say by GPS) that you have been taken to a police station and auto-deletes the contents of your phone without breaking laws governing destruction of evidence.

I'm not familiar with the intricacies of what constitutes destruction of evidence, but wouldn't that still qualify? I mean, is flushing cocaine down the toilet destruction of evidence because the cops are kicking down your door or because the act is inherently the destruction of evidence?

My point is with my lay understanding of the law, I'm not sure the presence or absence of a warrant has much to do with that classification.

Somehow I doubt it, at least if the purpose were solely to delete evidence when taken to a police station.

Having an app that deletes evidence when removed from safe areas (e.g. home, work, the commute path, etc.) would probably pass muster though, since there are many purposes for that which would not involve destroying evidence that might pertain to a legal investigation.

I think a better way would be to setup an MDM profile that will automatically wipe devices that have been offline for a few days.

Too many edge cases, what if you're just there to pay a parking fine?

I think good old device encryption is the way to go. Only a warrant can make you provide the password for them to access your phone, and even then you could withhold it for whatever reason (though not without consequence).

"protection for which the Founders fought"

I rather legal opinions not fall back on founder-worship for their legal basis...

The founders explicitly didn't include any rights in the constitution. The Bill of Rights was begrudgingly added later as a compromise after the constitution was approved by the states.

Furthermore, the right to privacy is really not on the same level as the other rights (where things are more black and white) and the 14th amendment was passed in the 1860s - well after any "founders"

This case has more to do with the 4th amendment which is part of the Bill of Rights.

sure, but the issue is that it's conflating things and making an appeal to authority

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