What You Need to Know About Klayman v. Obama
It’s sixty-eight pages long and it’d be pretty dense stuff for most non-laywers. You can read the news that it was a kidney punch to the government, but I break down the law for you here because I think there’s something a bit deeper going on than “the government lost.”
The United States District Court for the District of Columbia rendered a decision today in a case called Klayman v. Obama.Here’s some takeaways:
1. The plaintiff is not particularly important.
The actual plaintiff is a conservative activist lawyer named Larry Klayman. At one time he was involved with a group called Judicial Watch that got famous for a number of things movement conservatives found pleasurable and movement liberals found irritating. Now he’s on his own.
But so what? What matters is that he subscribes to Verizon Wireless, which as we now know periodically dumped its metadata to the NSA under compulsion of the government to do so. That, and Klayman had the stones to actually bring the lawsuit. A substantially similar claim was filed about one week after claimants case, by the ACLU, in federal court in New York City. That case has not yet reached as definitive a point as this.
That the ACLU and a conservative activist lately from Judicial Watch should converge upon the same goals and the same outrages is an indication that perhaps we have transcended partisanship in our need to balance security and liberty. And there’s no doubt that this debate must happen in the courts rather than in Congress.
2. The facts were never really in dispute.
How could they be? All of the facts that are alleged in the case came from one or more of the Edward Snowden leaks. Traitor or hero, no one has been able to demonstrate that Snowden is a liar.
The primary focus of the opinion was on the bulk metadata collection initiative by which the government compiled lists of basically every phone call made, from which number to which number, how long the calls lasted, and from where and to where the calls were placed. And, the government has by now conceded something which it had previously denied: this program captures data relating to telephone calls that both originated from within the United States and terminated within the United States.
These were rendered searchable by way of various programs and techniques remarkably similar to the way any Internet user would conduct a Google search. Further, it was conceded that beginning in 2009, the government deviated from instructions given by the Foreign Intelligence Surveillance Court, in some cases on a systematic basis.
After the secret court find out about this, it ordered that the meta-data could be searched only after seeking prior approval from the court on a case-by-case basis for a six-month period as sort of a “sanction.” This was the first I had heard of that, although that may be my fault.
3. The government had good reason to think it would win.
This conforms to something called a “pen register,” which had previously been found to lack any kind of privacy privilege, and therefore beyond the scope of the Fourth Amendment, in a prior case called Smith v. Maryland (1979) 442 U.S. 735. That case involved a woman who had received a series of obscene phone calls; law enforcement put a “pen register” on her phone for just shy of two weeks to see who called her. The pen registered consisted of a list of all phone numbers that called the victim’s number, and the duration of the calls, which were used to identify the defendant.
Since precedent had established that no warrant was necessary for the government to request a pen register from a telecommunications provider, it was no doubt thought that no warrant or other judicial oversight was necessary to compile what amounts to a very large pen register of telecommunications metadata.
While the government insisted it has no information concerning the content of communications monitored through the “Bulk Telephony Metadata Program,” it also acknowledged that the program began in May 2006 and continues to the present.
More important, and as underlined in the opinion, the NSA is empowered to conduct queries using identifier such as telephone numbers or other search terms the entire database this may be done without seeking the prior approval of a judicial officer. Rather, a proposed search, based on a “seed, “is approved by one of 22 managerial-level officials of the National Security Agency who decide internally if there is a “reasonable, articulable suspicion “that the ‘seed’ is associated with one or more of a specified list of several known terrorist organizations.
4. Times change.
The beating heart of the opinion starts at page 43, with a recital of the basic reasoning of Smith: the defendant in that case had no reasonable expectation of privacy in the numbers which he dialed from his phone at home, because those numbers had to be transmitted through the telephone company. “Everybody knows” that phone companies keep their own records of individual telephone calls, therefore, the defendant had no reasonable expectation of privacy that the phone company would not have this information. Since there was no expectation of privacy, no warrant was needed to access the pen register showing that calls have been made at particular times and lasted for particular durations.
There was some discussion of how the pen register was put in place before information was gathered, and it lasted only thirteen days. The NSA metadata is analyzed retrospectively, and generally goes back for five years. While the pen register in Smith was put in place to apprehend a specific criminal, the NSA appears intent to continue gathering this data and using it until the United States stops combating terrorism, “which realistically could be forever!” (Slip op. at 47.)
A. It’s a world of cell phones
But the real issue comes when Judge Leon writes “Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones.” (Slip opinion at pages 46 through 47). Unlike the targeted information sought on a prospective basis in the Smith case, the program under analysis today involves an indiscriminate dump of all data accumulated on an ongoing basis:
It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all from companies to operate what is effectively a joint intelligence gathering operation with the government.
The technology available in 1979 was substantially less advanced than it is today. The pen register in the 1970’s was gathered on analog equipment, was several hundred listings long, and was analyzed by hand. Collecting the metadata for millions of telephone calls and scanning them for matches on suspect numbers, correlated with other matches on other suspected numbers in a matter of ten or fewer seconds would have “the stuff of science fiction.” But today, we have come to take such incredibly powerful search technology for granted.
Of course, there is also the permeation of these devices into our lives. In 1979 telephone usage remained a matter of some importance due to its rarity. I have living memories of seeing receptionists shush visitors to businesses by way of indicating they were on the phone “long distance,” and the in-person people respected this and deferred. Fax machines were still primitive, as Telex machines were used to transmit documents more frequently at lightning-fast rates of 400 baud. Electronic mail was at best a novelty. People out and about needing to communicate with others elsewhere had to search for public pay telephones, if you can even concieve of such a thing today. In 1979, if I recall correctly, you could still make a local call from such a public utility for a dime.
Now, of course, a person of even modest means has ready access to telecommunications. Most people who have above modest means own their own cellular telephones, telephones used not only to communicate by voice, but also with direct text messages and to access the Internet. And payphones have gone the way of the dodo.
B. Does ubiquity of use change the quality of metadata?
The result of this ubiquity of telephone use, is that it would not take tremendous effort on the part of someone who wished to do so to reconstruct significant amounts of information about a person based only on the metadata. This pervasiveness of information enables the metadata, admittedly qualitatively similar to the metadata that would have been gathered in 1979, to be used to reconstruct substantially greater information about a person’s economic, family, political, professional, and other Internet associations. In short, if you can see who I call and when, you can probably figure out quite a lot about me.
That’s really the crux of the opinion. Do you believe that the pervasiveness of all this electronic communication has created a more or a less private world? Do you have a greater or a lesser expectation of privacy regarding this information?
Most people seem to not give the matter whole lot of serious thought. What does seem clear though is that when one considers the volume and duration of the government’s data gathering effort, it gives one pause. In that pause lies the contemporary expectation of privacy — an expectation that the opinion dares suggest has increased, rather than diminished, over time.
5. If you’re not going to get a warrant, at least get something to show for your efforts.
Having determined that there is a reasonable expectation of privacy, and therefore that a search is taking place when the NSA conducts one of these inquiries, the next question is whether that search is reasonable. But here, the opinion enters its homestretch. After all, to be reasonable under the fourth amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. Chandler v. Miller, 520 US 305, 313 (1997). While the dragnet type searches described here might be defended if used on an occasional basis, there’s little doubt that what is going on is systematic, a matter of policy implemented into routine practice.
It is here that the most remarkable piece of the opinion is found. While the government insisted that the Bulk Telephony Metadata Program exists to identify terrorist operatives and prevent terrorist attacks, the government did not identify a single instance when it had actually done so:
The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped in imminent attack, or otherwise aided the government in achieving any objective that was time sensitive in nature. In fact, none of the three “recent episodes” cited by the government that supposedly “illustrate the role that telephony metadata analysis can play” in preventing and protecting against terrorist attacks “involve any apparent urgency.”
As I’ve opined in the past, the best parts of a judicial opinion can be found in the footnotes: at footnote 65, we see that the government was given the opportunity to present additional potentially classified evidence of some success of this program to the Court in camera, but chose not to do so.
With the Court finding an expectation of privacy violated without any kind of judicial oversight, and no trophies to attribute to the program to illustrate good cause, the result was as you’ve read in the headlines already — a kidney-punch loss to the government.
6. And what did the plaintiffs win?
Nothing, yet. The decision is stayed pending appeal. But if the decision is ultimately affirmed, presumably by the Supreme Court for that is where the matter appears inevitably headed, the plaintiffs will win a guarantee that their telephone numbers will not be included in any future NSA searches. How exactly that is to happen the Court did not order, saying it was up to the government to figure this out, but that it had better get a solution lined up and ready to go in the event of an eventual loss. Whether that would create an untenable problem resulting from a multiplicity of other similar suits from other people wanting out of the database was left for future cases to address.
7. Balancing security and privacy vexes us. We’re terribly vexed.
Privacy rights are significantly more ambiguous then either privacy advocates or security advocates would have them be portrayed. Individuals voluntarily forsake their privacy rights for corporations with which they choose to do business. And there’s both danger and opportunity in that fact. But the government is a different story altogether. A corporation might sue you, it might take away a product or a service upon which you’ve become reliant. But it cannot incarcerate you. And that’s why the government playing with our private information should give us greater pause.
The disturbing part of today’s opinion is the ease with which Judge Leon sidesteps the Smith v. Maryland case. The qualitative data described there is functionally at the same data that is collected by the NSA in the contemporary program. The data today is significantly more pervasive, and subject to significantly more powerful search and storage technology, than it was in 1979 — but it’s still phone numbers, times of day, durations, physical locations. Today’s opinion suggests that the quantitative accumulation of this data, combined with the facility with which it may be analyzed, renders that information qualitatively different than it was in the past.
I’m not sure if that’s right, one way or the other. It’s still the same data: what number was called, when the call was placed, how long the call took. But then, I’m not so sure that I agree with the Smith case in the first place. Seems to me that Smith should have been decided along the lines of the victim consenting to a tap of her own phone. A different matter altogether to base the opinion on the notion that defendant had no expectation of privacy in his own phone usage.
Who owns that information anyway? Smith said that the phone company owns it, not the user. Consider: the U.S. Post Office transmits mail from one place to another, and it could if it wanted keep track of who sends letters to whom. Wouldn’t a compilation of that sort, perhaps assembled by an army of Winston Smiths in cubicles scribbling down return and delivery addresses, significantly implicate the privacy interests of the people writing and reading those letters?
What is lacking in so much of this government data collection and analysis is meaningful judicial oversight. The thing about police searches a physical premises, or even computers, is that it is usually done either with a warrant, or with actual exigent circumstances impelling the need for an immediate search which is later confirmed.
While the opinion does raise my opinion of the FISA court, in that it describes an interactive process and a degree of skepticism in that Court’s oversight of the NSA’s data gathering activities, it also illustrates how that system breaks down, and how the executive gathers information sometimes in open defiance of judicial guidelines. And the FISA Court is not a forum in which adversaries clash; the judges must play the role of adversaries to the government before they ultimately give the government some, if not all, of what it came asking for.
There should be no doubt that the government will appeal; it pretty much has to. The likelihood of the subject matter of this case making it for Supreme Court review is high to the point of inevitability. The D.C. Circuit may well reverse this decision.
8. What really got done
The government has been put on the legal defensive. The government should be on the defensive. The government should be in the position of needing to justify its actions to a skeptical citizenry and searching questions from the bench. People ought to be able to point at something the government has done and point out how it infringes upon their basic rights, and to have those rights vindicated when the government’s explanations for its actions are found wanting.
That, after all, is why we have courts in the first place.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.
NiceReport
Funny you should mention the USPS tracking the mail… they are.
http://consumerist.com/2013/07/03/forget-the-nsas-hi-tech-snooping-the-usps-has-been-scanning-our-mail-for-years/
http://www.nytimes.com/2013/07/04/us/monitoring-of-snail-mail.html?hp&_r=1&&pagewanted=allReport
The USPS actually is logging and photographing all mail, including post cards. Law enforcement can get the data any time without a warrant. It generally involves them asking for data on a specific address or person for 30-120 days. This program existed in limited form for a long time, but was (surprise!) majorly beefed up, to include logging ALL mail, after 9/11.
The links I posted to articles about this in the first comment got it sent to moderation, but it was picked up the NYT, among many many others.Report
However there is no requirement to put a return address on a letter. Thus the most the analysis can see is that someone mailed a letter from a general area, no actual address. Or if you wanted to you could put 1600 Pennsylvania Ave Wash Dc as the return address on all your letters.Report
The likelihood of the subject matter of this case making it for Supreme Court review is high to the point of inevitability.
Hmm. I’m skeptical on that in terms of this case. They well may grant cert. But when the D.C. Circuit reverses, I’d put slightly-better-than-even odds on six justices deciding they still think Smith is good law even under the new circumstances of ubiquity of telecommunications and functionally saying, ‘Yep, what they said’ about the Circuit ruling (even if the Circuit doesn’t reach the merits).
The “subject matter” is a different question, though – how do you define that? I think they may hold their fire here, knowing that there isn’t nearly as clear a precedential answer on the backdoor monitoring of internet communications, which will very likely end up in courts, and on which there essentially will have to be new precedent laid down one way or another. Perhaps they’ll revisit the issues here in this case then, perhaps not, but I think, in the case that the Circuit reverses this opinion, the chances SCOTUS reviews that reversal will only be around 50/50.Report
If this were the ONLY opinion and the ONLY suit I might agree with you, but similar suits in other Courts have gone different ways, and that more often then not leads to SCOTUS review. It may take us a while but even a DC Circuit reversal won’t really slow the train.Report
Fair point, providing we end up with conflicting rulings in different circuits, not just different districts.Report
Given the circuits those districts are in, I’d say its highly likely.Report
Perhaps you addressed this and I missed it, but don’t ToS agreements and the relationship between the government and the telecom companies matter greatly. If Verizon’s ToS says, “You grant Verizon the right to share data on your calls with anyone of their choosing,” and Verizon than voluntarily gives over that information to the government, it wouldn’t seem to violate the letter of the law. Now, if the ToS agreements DON’T offer the companies this privilege OR the government did not receive the information voluntarily (and, letter of the law or not, I would put the government saying, “We’re going to get it one way or another so it’s better if you just offer it to us,” into the involuntary category), we’ve obviously got a whole ‘nother issue.
Cases like this are why I argue that we need to right a wholly new Constitution. The founders could not and did not foresee cell phones. As such, trying to fit our world into their world view seems silly; they are functionally incompatible in a number of areas. Who cares what George Washington would have thought about cell phone data collection? We need to decide as a people about how we feel about it and make laws accordingly.Report
No, I didn’t address ToS agreements, but I largely feel as you do: the government requiring cooperation is compulsory no matter how much “consent” is built in to the window dressing. And, as I did mention, while corporate data intrusion is a simmering issue, the government is a different sort of animal.Report
If the government’s request was truly voluntary — e.g., “We’d really love for you to give us this data but realize we can’t make you. We *might* be able to get a warrant or court order, but that’s not guaranteed. Really, we’re just asking you to do us a favor.” — would that matter at all? On the one hand, it would seem that even asking constitutes a “search”. On the other hand, the government asks people to volunteer information all the time. For instance, if my friend tells me he is going to the store and the cops later ask me where my friend is, I presume if I voluntarily tell them he is at the store, this doesn’t qualify as a violation of his 4th Amendment rights… right?Report
“Hey,” said the man in the middling suit with a holstered pistol visible on his hip. “Could I get you to do me a… a favor? Just a little thing, y’know.” He leaned in closer, somehow underlining the strength of his shoulders with his posture. “Alls I need here is the records of every transaction youse guys do with every one of your customers. Every week.” He smiled and cocked his head just so. “I know you work hard to keep that information from your competitors, so I’d really appreciate it. … Really? Tha-a-a-anks! I owes you one, man.” He got up and walked away, with an exaggerated wink and point.Report
“Ya got a nice business here. I’d hate to see ya get in trouble with the regulators.”Report
Before anyone thinks that’s just a joke, I have one word for you: QwestReport
If I’d been the judge I wouldn’t have stayed my opinion. I’d have issued it and demanded action in 24 hours pending contempt of court citations even as the weasels scrambled to appeal.Report
. The qualitative data described there is functionally at the same data that is collected by the NSA in the contemporary program.
Is it? I was under the impression that the modern meta-data is a lot ‘richer’ than what was state of the art in the disco era, exactly because the methods of transmission and the variety of formats and potential bandwidths make more data about data necessary. Plus, with different interwoven layers of metadata, where does ‘meta’ start? e.g. (1) a file was sent today between x and y (2) it has a photo included (3) this photo was taken the day before yesterday (4) at lat DD.MMN DD.MMW Where on the spectrum is the demarcation between ‘data’ and ‘metadata’? It’s not entirely clear to me.
but it’s still phone numbers, times of day, durations, physical locations (em added)
And that last one is a prime example, imo, of the qualitative difference between those phone calls made in leisure suits and the ones made now. Phones are now much more often associated with a person, rather than a location – and that phone moves with the person.
But regardless of all that, ‘quantity has a quality all its own’ is pertinent too. An increase in technical capabilities that makes previously unfeasible practices feasible makes one need to go back a level at the underlying assumptions. For instance, In addition to your mail analogy, the ubiquity of cameras is another case of technology altering the paradigm. Putting a cop on every corner watching everything that happens on the street is unaffordable, so of course it’s not done. But were it affordable – like by substituting the flesh and blood (and pay and health care receiving) police officer with a robot – would it still be a good idea?Report
Where on the spectrum is the demarcation between ‘data’ and ‘metadata’? It’s not entirely clear to me.
This is one of those pornography things, you know it when you see it.Report
We have met a data, and it is us.Report
Thank you, Burt. A very nice summary. One quibble, though ( as always). Klayman doesn’t have stones so much as he’s a complete freaking lunatic who will file any court case he can dream up against liberals/Democrats/Obama. Here’s an example of his understanding of the law:
He hardly ever wins a case–this is a rare moment of triumph (shirt lived as it may be). He’s on the right side this time, but undoubtedly for the wrong reasons, and he’s not the person to argue this case up the federal chain.Report
Really, Professor? You don’t think it takes stones to go in to court and argue things like Klayman does without an ounce of visible shame, remorse, or irony? Even lunatics fear Federal Rule of Civil Procedure 11 once they are cognizant of it.Report
For your garden variety nutcase whose primary goal us to win their case, maybe, but not for Klayman. He wins even when he loses, because every loss is proof of the scope of the conspiracy. A loss reinforces his assurance that he’s on the right trail, reinforces his world-view, and provides revenue opportunities from right-wing sources. When a win is one type of win and a loss is another type of win, I’m not persuaded stones are at issue. Extremists don’t go beyond normal bounds out of bravery, most often, but out of an inability to parse the world as normal people do.
Armchair psychologizing, sure, but I’ll stand by it.Report
Yes, the day that it might be invoked. Orly Taitz (or whatever her name is) has filed perhaps a hundred lawsuits about Obama’s birth, and lost every single f-ing one of them. It took somewhere in the high double digits before she was first sanctioned.
Burt, how many lawyers do you know who’ve filed basically the same lawsuit even 10 times?Report
@barry I’ve I filed the same lawsuit about 6000 times. It’s called an eviction.Report
If I were Burt, I’d give up. Those people are not going anywhere.Report
No, really. In Klayman’s case, he certainly has stones bigger than his brain, but that only makes them normal-sized, since his brain is about the size of a withered pea.
He really is a raving lunatic, and I think the only reason he won this case is because he has filed (and lost) so many cases in his random, shotgun-litigation, that it was pure chance that he finally picked one where he was right. This is a case of the monkeys finishing a Shakespeare sonnet, after a million years of random key-bashing.Report
This has to be one of the most salutary examples of the broken clock adage on record. That being said, as Burt’s first heading points out, it’s really irrelevant to the policy issues which plaintiff’s suit ended up being the one to get the most appellate review. That being said, maybe it’s not completely coincidental that the suit that did make its way into appellate-level review was the one filed by the guy with a lot of practice at doing it, even if that practice comes from obsessively filing frivolous, politically motivated lawsuits. Do it enough, and I imagine eventually you do master the procedural tricks.Report
The problem is not whether Klayman knows the procedural tricks, but whether he can distinguish between good legal arguments and bad ones. His track record (and his birther arguments about natural born citizenship) don’t suggest he does. If he were to hire a competent lawyer to argue the case on appeal, that’d be a diferent story.Report
Wait, was Klayman pro se at the district court level? (If so, that makes me very uneasy about the upcoming appeals.)Report
@pub-editor,
Unfortunately, yes.Report
In a best case scenario, he hires competent lawyers for the appeal or lets the ACLU come in and take over the case. In a next to best case, Klayman accepts coaching on the art of writting and arguing an appeal.Report
The ACLU is part of the conspiracy!Report
Wait, was Klayman pro se at the district court level?
At least it wasn’t in verse.Report
I wasn’t saying it means he’s an effective advocate. Just what I said: that the fact that his was the case to proceed farthest earliest may not be coincidental to the fact that he has so much experience filing and pursuing public-policy-related lawsuits.Report
Lee,
In a next to next-to-best-case scenario, the ACLU and EFF and other groups at least file amicus briefs. (And hopefully the court of appeals would actually pay attention to the amicus briefs, which I am not convinced is always the case.)Report
@michael-drew
I’d suggest that “his was the case to proceed farthest earliest” was not coincident to his experience (because that suggests the ACLU, EFF, and other legal-system focused interest groups somehow lack his experience), but to the fact that he so habitually files lawsuits about everything that he’s nearly always there first (often with the leastest instead of the mostest, but then it’s easier to file first if you don’t waste time writing a quality filing).Report
Well, if a procedural trick that gets you furthest earliest is filing first rather than developing quality argument, and it takes experience to learn that, then it may not be coincidental to his experience that his suit got furthest earliest. Though perhaps it is – I’ve said “may” all along for a reason. Keeping in mind that, as you say, the aims aren’t the same between himself and the ACLU, where his is to be the case that makes the biggest, earliest headlines on the issue, while theirs is to pursue the most effective case.
But for that matter, it could be entirely coincidental, having to do not with when the cases were filed, but with administrative issues in one court in relation to the other. Like I said: “maybe.”Report
, if a procedural trick that gets you furthest earliest is filing first rather than developing quality argument,
Once! I cannot overstate how rare it is for Klayman to get a ruling in his favor. Striking gold once in dozens of efforts does not indicate experience or knowledge; it indicates that even a blind pig can find an acorn once in a while.Report
It doesn’t really indicate anything that he pursues mostly losing issues other than that he chooses interests to pursue that don’t have much hope of being vindicated in court, at least not necessarily. Maybe he did well to get as much consideration in those cases as he did, producing negative results with uncommon rapidity. Then, as soon as his interests happen to align him with a (to some degree) winning issue, he not only gets a favorable result, but gets it quickly! (Maybe!)
Again, this is understanding that his aim is just to get that first burst of traction in courts, whereas the ACLU’s is to craft cases that have the best chance possible of winning through all levels of review.Report
@leeesq & @pub-editor both the ACLU and EFF have their own cases https://twitter.com/trevortimm/status/412697219016323072 , my layman understanding of the process is thatalmost always, all these similar cases get wrapped together when it gets to the Supreme Court (if not before).Report
Klayman’s rights were violated cavalierly.Report
Its not his fault that his other suits might be Hokie.Report
Excellent post, Mr. Likko.
The disturbing part of today’s opinion is the ease with which Judge Leon sidesteps the Smith v. Maryland case.
As you imply, this may be the weak link in Judge Leon’s opinion. If so, perhaps a DC Circuit panel that wanted to uphold the ruling could do so on alternate grounds. Hopefully appellate counsel for the plaintiffs will be alert to this possibility and include in their briefing some arguments pointing to alternate reasoning for overcoming Smith.Report
Burt: “The government has been put on the legal defensive. The government should be on the defensive. The government should be in the position of needing to justify its actions to a skeptical citizenry and searching questions from the bench. People ought to be able to point at something the government has done and point out how it infringes upon their basic rights, and to have those rights vindicated when the government’s explanations for its actions are found wanting.”
I love this. The joke is that this is the root of the fourth amendment, both in ‘original intent’ (otherwise known as Scalia’s toilet paper) and in literal meaning.Report
It always amazes me how little the judiciary seems interested in protecting the rights of citizens from government. So much so that opinions like this, or from the likes of Judge Kozinski, always catch my eye (because they are so rare).Report
“It always amazes me how little the judiciary seems interested in protecting the rights of citizens from government. So much so that opinions like this, or from the likes of Judge Kozinski, always catch my eye (because they are so rare).”
I think that most of the reputation of the Judicary as a defender of rights and freedom is wrong, and much of the less is based certain times, places and decisions in the post-WWII era.Report
The question that interests me in all this concerns ownership. Is information about you in any way your data or does it belong to the Telco? Example (ripped from the headlines): Take a nudie of your girlfriend and the image legally belongs to you. If she takes a selfie and sends it to you, again, it’s your property. But AFAICT from what I’ve read lately, you need a model release to distribute that in the first case but not in the second. I guess the point I’m wandering toward is that it’s easy to get worked up into a moral outrage, but you apparently need more than a feeling of having your privacy violated to actually have your rights infringed.
Frankly, I’m unclear on why Verizon even collects that data anymore. They don’t bill me based on it. My plan is unlimited calling with free long distance and unlimited texts. The only variable is GB of data usage.Report
Actually, if the girlfriend takes the picture, she’s the one with the copyright on it (if anyone is; not sure if photos need a copyright notice on them); your copy is authorized, if she sent it you, but it doesn’t give you distribution rights.
As far as ownership goes, in the privacy context, though, it’s beside the point. If you’re holding a bag, and a policeman comes up and rips it out of your hands and rummages through it, that’s a government search of your person, even if the bag isn’t actually yours (e.g., you were holding it for a friend). They either need to get a warrant to search YOU, which includes the clothes and bags you are wearing at the time, or a warrant to search your friend’s bag, wherever it may be.
Now, whether you own something or not is probably relevant to whether you have an expectation of privacy in that thing, but it’s not a determinitive question by itself. In the above example, you don’t own that bag, but you have a reasonable expectation of privacy in its contents anyway, under the circumstances, because you were holding it and a bag naturally conceals its contents.
For the Telco stuff, the Smith question re: expectations is whether you already disclosed it to someone else, but if we’re not going to care about Smith, then it seems like “what information about me does this data disclose, and am I intending for it to be public?” Those questions, and many others like them, can be answered without recourse to ownership.Report
And BTW, sincere thanks for the latest installment of Law for Dummies. I find these fascinating.Report
Burt,
Excellent post. As I alluded to above, this isn’t the only case out there on this issue, and several of the others were decided the opposite way. I’d love to get your take on that part of the issue, as there is tremendous punditry suggesting this fact is the SCOTUS gateway.
I’d also be interested in why a Republican judge, appointed by a President who was supposedly “anti-activist judges” would, in fact commit what seems like an act of judicial activism.
Volley to you @burt-likkoReport
“Who owns that information anyway? Smith said that the phone company owns it, not the user.”
Actually, it gets worse. At least if you rely on the Smith case. Ask your this variant of your own question: Who own the money you deposit in a bank?
That money is not kept as physical dollars and cents but as 0’s and 1’s in some computer file. More specifically, it is kept as a record in a bank’s computerised database.
In other words, it is stored as METADATA.
That being the case, (under the Smith case) you presumably no more own that deposited money than a Verizon customer owns their relevant metadata in Verizon’s phone customer database. Which presumably means when you go and deposit money in a bank what you are actually doing is DONATING that money them, money which the bank graciously agrees to hand back to you when you afterwards come along with a withdrawal claim.
Which is all very well but it means that the one with the US constitutional protection, both 4th amendment and 5th (due process and fair compensation) amendment, is not you but the bank!
On the other hand, if instead of putting the money in a bank you had stuffed it into your mattress in your house, not only would the government need a warrant under the 4th amendment before they could search your house for it, if that money was rightfully yours you would be the one entitled to the 5th amendment’s right to due process and fair compensation if the government tried to seize it.Report