Federal judge says NSA program appears to violate Constitution

[CountDeMoney]

Life is disappointment.

Says the millionaire from his palatial estate overlooking his vineyard, surrounded by his beautiful young wife, his loving children and his concubine imported from his French chateau.

HEY NOW

She's not as young anymore.

[jimmy olsen]

Classy Money, really classy...

[CountDeMoney]

A little horseradish, it's all good.

[Ideologue]

God, I want a French dip.

Not a crass Monkeybutt joke.  I want a fucking roast beef sandwich, alright?

Or--mmm--lentil soup.  Yay.  Fuck let's eat up.

[Ed Anger]

Life is disappointment.

Says the millionaire from his palatial estate overlooking his vineyard, surrounded by his beautiful young wife, his loving children and his concubine imported from his French chateau.

HEY NOW

She's not as young anymore.

[Ed Anger]

God, I want a French dip.

Not a crass Monkeybutt joke.  I want a fucking roast beef sandwich, alright?

Or--mmm--lentil soup.  Yay.  Fuck let's eat up.

I've cut red meat out about 50 to 75 percent out of my diet. YOU DON'T HEAR ME COMPLAINING.

[11B4V]

God, I want a French dip.

Not a crass Monkeybutt joke.  I want a fucking roast beef sandwich, alright?

Or--mmm--lentil soup.  Yay.  Fuck let's eat up.

I've cut red meat out about 50 to 75 percent out of my diet. YOU DON'T HEAR ME COMPLAINING.

A can of pie cherries will help with the gout.

[The Minsky Moment]

I was so excited when I saw that Minksy posted in this thread, eagerly awaiting his legal analysis... 

Very tough to evaluate.

The problem with using the Fourth Amendment to challenge this kind of action is that the information being gathered is information already in the hands of the phone company.
So gathering the information does not involve a physical invasion of property, and it is tough to argue there is a reasonable expectation of privacy in data that the phone company routinely collects and can do just about anything it wants.  Indeed, there is a long-standing Supreme Court case from 1979 that addresses this question -- Smith v. Maryland -- and it ruled that people do not have a reasonable expectation of privacy in their call records.

Judge Leon's response to Smith is to cite language from concurring opinions in the recent car surveillance case US v. Jones which make a distinction between surveillance techniques that are short-term and ephemeral - like using GPS technology to track the movements of a suspect in flight - and those that are sustained and long-term - like using the same technology to track a person's evey movement for months.  Four justices joined that concurring opinion, and a fifth (Sotomayor) wrote an opinion expressing even more concern about the use of GPS technology and questioning the Smith principle.  So that is 5 justices that support that view.  Judge Leon's argument is that the unlimited data collection of the NSA program is a paradigmatic example of a long-term monitoring program and hence unconstitutional under the Jones concurrences.

The hitch in the reasoning is that the phone data has already been gathered by the phone company so arguably there isn't the same expectation that a person's phone records won't be systematically collected as there is an expectation that one's movements (even if public) won't be exhaustively tracked over months. 

Perhaps a more logical way to deal with this problem would be to say something like this:

[T]he Court determines that individuals who convey information to third parties have "assumed the risk" of disclosure to the government. . . This analysis is misconceived in two critical respects.

Implicit in the concept of assumption of risk is some notion of choice . . .[H]ere, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance.  . . . It is idle to speak of "assuming" risks in contexts where, as a practical mater, individuals have no realistic alternative.

More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications.  . . . In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society

That was Thurgood Marshall's opinion in Smith.  But it was a dissenting opinion.  It is not the law.

[Ideologue]

God, I want a French dip.

Not a crass Monkeybutt joke.  I want a fucking roast beef sandwich, alright?

Or--mmm--lentil soup.  Yay.  Fuck let's eat up.

I've cut red meat out about 50 to 75 percent out of my diet. YOU DON'T HEAR ME COMPLAINING.

[Ed Anger]

God, I want a French dip.

Not a crass Monkeybutt joke.  I want a fucking roast beef sandwich, alright?

Or--mmm--lentil soup.  Yay.  Fuck let's eat up.

I've cut red meat out about 50 to 75 percent out of my diet. YOU DON'T HEAR ME COMPLAINING.

When I do eat red meat, I make it swim in A1 sauce.

[Ideologue]

I like A1.  When I go to Red Robin, I get the A1 Peppercorn burger.

[crazy canuck]

When I do eat red meat, I make it swim in A1 sauce.

You are forgetting the ketchup

[Ed Anger]

When I do eat red meat, I make it swim in A1 sauce.

You are forgetting the ketchup

I've switched to Taco Bell mild sauce packets.

[DontSayBanana]

I like A1.  When I go to Red Robin, I get the A1 Peppercorn burger.

That's a good one.

[dps]

I was so excited when I saw that Minksy posted in this thread, eagerly awaiting his legal analysis... 

Very tough to evaluate.

The problem with using the Fourth Amendment to challenge this kind of action is that the information being gathered is information already in the hands of the phone company.
So gathering the information does not involve a physical invasion of property, and it is tough to argue there is a reasonable expectation of privacy in data that the phone company routinely collects and can do just about anything it wants.  Indeed, there is a long-standing Supreme Court case from 1979 that addresses this question -- Smith v. Maryland -- and it ruled that people do not have a reasonable expectation of privacy in their call records.

Judge Leon's response to Smith is to cite language from concurring opinions in the recent car surveillance case US v. Jones which make a distinction between surveillance techniques that are short-term and ephemeral - like using GPS technology to track the movements of a suspect in flight - and those that are sustained and long-term - like using the same technology to track a person's evey movement for months.  Four justices joined that concurring opinion, and a fifth (Sotomayor) wrote an opinion expressing even more concern about the use of GPS technology and questioning the Smith principle.  So that is 5 justices that support that view.  Judge Leon's argument is that the unlimited data collection of the NSA program is a paradigmatic example of a long-term monitoring program and hence unconstitutional under the Jones concurrences.

The hitch in the reasoning is that the phone data has already been gathered by the phone company so arguably there isn't the same expectation that a person's phone records won't be systematically collected as there is an expectation that one's movements (even if public) won't be exhaustively tracked over months. 

Perhaps a more logical way to deal with this problem would be to say something like this:

[T]he Court determines that individuals who convey information to third parties have "assumed the risk" of disclosure to the government. . . This analysis is misconceived in two critical respects.

Implicit in the concept of assumption of risk is some notion of choice . . .[H]ere, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance.  . . . It is idle to speak of "assuming" risks in contexts where, as a practical mater, individuals have no realistic alternative.

More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications.  . . . In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society

That was Thurgood Marshall's opinion in Smith.  But it was a dissenting opinion.  It is not the law.

Not, in general, a big fan of Marshall, but I agree with him here. 

If anything, the ideas shown in the bit posted here are even more relevant now than they were 34 years ago.