Lat­est blow to mas­sive data har­vest­ing

The Washington Times Weekly - - National - BY STEPHEN DI­NAN

Rul­ings on con­tra­cep­tion and re­cess ap­point­ments may have grabbed big­ger head­lines, but the Supreme Court’s de­ci­sion last month re­quir­ing po­lice to get a war­rant be­fore snoop­ing through some­one’s cell­phone is likely to have a big­ger last­ing im­pact.

The 9-0 de­ci­sion al­ready has po­lice, lawyers, mem­bers of Congress and lower courts mulling over the im­pli­ca­tions for other 21st century tech­nol­ogy and, in par­tic­u­lar, what the jus­tices’ le­gal rea­son­ing means for the fu­ture of Na­tional Se­cu­rity Agency’s phones­noop­ing pro­gram, cloud com­put­ing and po­lice’s cell­phone-track­ing re­quests.

Chief Jus­tice John G. Roberts Jr.’s opin­ion in last week’s case, Ri­ley v. Cal­i­for­nia, didn’t deal with the NSA. But it was the way he ap­proached the is­sue of smart­phones — de­clin­ing to ap­ply 20th century prece­dents to new tech­nol­ogy, and in­stead go­ing back to the founders’ first prin­ci­ples — that is likely to spur the shake-up.

“There’s lan­guage in the opin­ion that sug­gests the court is go­ing to be re­cep­tive to pro-pri­vacy ar­gu­ments we’re go­ing to raise,” said Hanni Fakhoury, staff at­tor­ney at the Elec­tronic Fron­tier Foun­da­tion, which has brought some of the law­suits that are push­ing a re­think of un­der­stand­ing of pri­vacy.

The Ri­ley case, with its com­pan­ion case, U.S. v. Wurie, fol­lows a 2012 rul­ing in U.S. v. Jones, wherein the court held that po­lice tres­passed when they went on some­one’s property to in­stall a GPS tracker on a sus­pect’s car and kept it there longer than their war­rant al­lowed.

“There have now been three cases in the last cou­ple years rais­ing sig­nif­i­cant Fourth Amend­ment is­sues in the new dig­i­tal age, and the govern­ment has now lost all three of them unan­i­mously,” said Nathan Freed Wessler, staff at­tor­ney at the Amer­i­can Civil Lib­er­ties Union. “I think it’s a strong sig­nal that the court is pay­ing close at­ten­tion to the need to de­velop 21st century rules for 21st century searches.”

In the cell­phone cases, the govern­ment had ar­gued that a cell­phone was like a piece of paper or any­thing else po­lice find when they ask some­one to turn out his pock­ets. Un­der pre­vi­ous prece­dent, po­lice were al­lowed to use in­for­ma­tion gleaned from that kind of search.

But Chief Jus­tice Roberts said brows­ing through a cell­phone went be­yond just look­ing at a piece of paper.

In a rul­ing that went into de­tails such as gi­ga­bytes of stor­age space and “apps,” or ap­pli­ca­tions, the court said the in­ti­mate de­tails of some­one’s life can now be stored in a pocket — in­for­ma­tion that clearly fell within the pro­tec­tions the founders en­vi­sioned for the Con­sti­tu­tion.

“For one of the very first times, the court is think­ing like a reg­u­lar per­son. It’s talk­ing about apps; it’s talk­ing about [how] you carry 1,000 pic­tures. It’s talk­ing about [the] real world,” Mr. Fakhoury of EFF said.

Now lawyers are ask­ing what else that kind of rea­son­ing can be ex­tended to.

Courts are al­ready grap­pling with searches at the bor­der, where au­thor­i­ties have con­fis­cated lap­tops and pe­rused their con­tents. And federal ap­peals courts have is­sued split rul­ings on whether po­lice need a war­rant to ask a cell com­pany for the in­for­ma­tion track­ing where some­one’s phone has been — a way of po­ten­tially link­ing some­one, by ge­og­ra­phy, to where a crime was com­mit­ted.

The big ques­tion in le­gal cir­cles is what hap­pens with a 1979 case, Smith v. Mary­land, which held that in­stalling a pen reg­is­ter to track tele­phone num­bers some­one calls is not a search, so the govern­ment doesn’t need to get a war­rant to get that in­for­ma­tion.

In that de­ci­sion, the court rea­soned that the con­sumer was vol­un­tar­ily turn­ing the in­for­ma­tion over to the tele­phone com­pany and so didn’t have a le­git­i­mate ex­pec­ta­tion of pri­vacy.

Hotly de­bated since, the Smith rul­ing has come un­der par­tic­u­lar scru­tiny in re­cent months with the rev­e­la­tion that the govern­ment was track­ing the time, du­ra­tion and num­bers in­volved in most calls made in the U.S.

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