Why would the same not apply to the Internet cables the NSA directly taps all over the World?
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.
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.
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.
> 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.
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.
Except they did, by passing it to other agencies and then falsifying their chain of investigation through "parallel construction".
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.
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.
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.
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.
Deleted comment
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 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).
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.)
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."
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.
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.
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.
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.
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 =)
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.
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.
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.
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.
One could even argue that the Posse Comitatus Act already mandates such a wall.
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?
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...
Most politicians in DC have no interest in stopping what the NSA is doing, so it isn't going to get stopped.
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.
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.