Fourth Amendment

The Supreme Court’s Say on Surveillance?

Big national security news yesterday: a federal court judge has ruled that the NSA’s Section 215 metadata collection program is an unconstitutional violation of the Fourth Amendment.  TechDirt has a great wrap-up of Judge Leon’s opinion, but more than the excellent legal analysis on display, the case is one of the first big demonstrations of how the federal judiciary is being brought into the surveillance discussion post-Snowden.  The secretive structure of FISA Court, and the difficulty – if impossibility – of getting those cases into the Supreme Court or out into the sunshine made it very easy for the the courts to avoid judging the constitutionality of broad government surveillance.

Just last year in Clapper v. Amnesty International, the Supreme Court was able to side-step today’s question by holding that a group of international lawyers and journalists had no standing to challenge the FISA Amendments Act of 2008 because they could prove no harm.  The narrow majority deferred to the FISA Court’s ability to enforce the Fourth Amendment’s privacy guarantees, an assertion that has proven to be ridiculous. Snowden’s revelations have changed Clapper‘s standing equation, and this may force the Supreme Court’s hand.

After today, it appears all three branches of government may have a say in the future of the Fourth Amendment, and it seems likely they won’t be in agreement.  Involving the Third Branch in an active dialog about surveillance is essential not only because it can clarify the scope of Fourth Amendment but also because it may be in a position to break a separation of powers stalemate between Congress and the President.  In the end, the steady stream of lawsuits challenging the NSA’s activities may end up having a bigger legal impact than any congressional theatrics.

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Keeping Secrets from Society

While the first round of oral arguments surrounding gay marriage was the big event before the Supreme Court today, the Court also issued a 5-4 opinion in Florida v. Jardines, which advances the dialog both on the state of the Fourth Amendment and privacy issues generally.  In Jardines, the issue was whether police use of drug-sniffing dog to sniff for contraband on the defendant’s front porch was a “search” within the meaning of the Fourth Amendment.  By a slim majority, the Court held that it was.

This is what our protection against “unreasonable searches” has become: a single-vote away from letting police walk up to our front doors with dogs in order to see if they alert to anything suspicious.  What I think is even more alarming about the decision is how little privacy was discussed, let alone acknowledged. Only three judges–curiously, all three women–recognized that the police’s behavior clearly invaded the defendant’s privacy.  The ultimate holding was that bringing a dog onto one’s property was a trespass, and the Fourth Amendment specifically protects against that.  But while defaulting to a property-protective conception of the Fourth Amendment has the virtue of “keep[ing] easy cases easy,” as Justice Scalia put it, it ignores that nuanced reality that the Fourth Amendment was designed as a tool to obstruct surveillance and to weaken government.

The dissent, meanwhile, was ready to weaken the Fourth Amendment even more.  While this case was in many ways directly analogous to a prior decision, Kyllo v. United States, where the Court restricted the use of thermal goggles to inspect a house, the dissenters made the alarming assertion that “Kyllo is best understood as a decision about the use of new technology.”  What makes that rationale scary is that Kyllo included the unfortunate invocation that whether or not government surveillance constitutes a search is contingent upon whether or not the technology used is “a device that is not in general public use.”  This creates the not only the possibility but also the incentive to use technological advances to diminish the Fourth Amendment’s protection.  It creates a one-way ratchet against privacy.

I am not the first person to suggest that the Supreme Court’s Fourth Amendment jurisprudence is utterly incoherent.  I particularly enjoy the description that our Fourth Amendment is “in a state of theoretical chaos.” Last year, facing a case where the government attached a GPS unit to a car, tracked a suspect for a month, and never got a warrant, the Court unanimously concluded this violated the Fourth Amendment.  That was great.  More problematic, the case produced three very different opinions, that could not even cleanly divide along ideological lines.  What it boils down is this: we are a serious privacy problem in this country.

And while its easy to point a finger at a power-hungry government, the blame rests with us all.  We have been quick–eager even–to give up our privacy, particularly as we have embraced a binary conception of privacy.  We either possess it, or our secrets our open to the world.  We have been conditioned to think our privacy ends when we walk out the front door, and now we live in a world where nothing stops anyone from looking down on everything we do from an airplane, a bit lower from a helicopter, and, yes, soon even lower from a drone.  We have no expectation of privacy in our trash anymore.

Just look at Facebook!  Facebook isn’t even a product–it’s users are the product.  Vast treasure troves of personal data flows into the business’ coffers, and it wants more.  As The New York Times reported today, Facebook’s data-collection efforts extend far beyond its mere website.  Facebook doesn’t even stop when you leave the internet.  But worry not, says Facebook, “there’s no information on users that’s being shared that they haven’t shared already.”

That’s certainly true, but today it’s being aggregated. The data freely available about each and every one of us could, as The Times put it, “leave George Orwell in the dust.” Private companies collect “real-time social data from over 400 million sources,” and Twitter’s entire business model depends upon selling access to its 400 million daily tweets. Our cars can track us, and just today I saw the future of education, which basically involves knowing everything possible about a student.

I’m hesitant to quote Ayn Rand, but since an acquaintance shared this sentiment with me, it has dwelt in my mind:

Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.

Perhaps our collective future is, as Mark Zuckerberg posits, destined to be an open book.  Perhaps Google CEO Eric Schmidt is right when he cautions that “[i]f you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”  I am certainly not immune to oversharing on the Internet, and for whatever my privacy is worth, I don’t really have anything to hide.  But that’s not the point. Before anyone embraces a world where the only privacy that exists is in our heads, I would suggest reading technologist Bruce Schneier’s rebuttal:

For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable.

Of course, as my boss describes it, Adam and Eve’s flight from the Garden of Eden had less to do with shame and more to do with attempting to escape the ever-present eye of God. Some would suggest we might have been better off in that idyllic paradise, but I much prefer to keep a secret or two.

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