eff.org: Landmark Decision Important Beyond NSA Phone Records Collection

eff.org: Landmark Decision Important Beyond NSA Phone Records Collection by Hanni Fakhoury:

The historic decision handed down by D.C. federal judge Richard Leon last week that found the NSA’s bulk collection of phone records likely violated the Fourth Amendment is a crucial first step towards protecting digital privacy from suspicionless government searches. But the importance of the decision extends beyond the NSA’s surveillance programs. Judge Leon made two important findings on how the Fourth Amendment right to be free from unreasonable searches should apply at a time when technology can make invasive surveillance — once considered the stuff of science fiction — a part of every day life.

The Increasing Irrelevancy of Smith v. Maryland

Critically, Judge Leon’s opinion recognized that relying on the Supreme Court’s 1979 decision in Smith v. Maryland to look at new forms of electronic surveillance was foolish. Smith ruled that a person did not have a Fourth Amendment expectation of privacy in the phone numbers he dialed since he had turned that information over to the phone company in order to make the call. Since Smith was decided, courts have extended it to defeat Fourth Amendment challenges to many forms of warrantless surveillance such as acquiring historical cell site records, information turned over to Internet companies like Twitter, and even customer records held by a utility. So when defending the NSA’s surveillance, the government naturally argued that Smith controlled and no warrant was needed to access the phone records.

See Treatise § 5.01: “Technology and mass information gathering has made the third-party doctrine suspect both in the legal literature and in the courts.”

The third-party doctrine simply has outlived its usefulness, assuming that it had any, with the overwhelming wealth of information out there, information held by many, many companies that we never voluntarily shared. They took it because computers and software made it all possible and infinitely searchable, categorizable, reproducible at minimal or virtually no cost for their own benefit or the benefit of others who compel its production or even buy it from them.

We have a concept of privacy in our minds that doesn’t square with modern reality. Or, our concept of privacy dates from before Big Data, and we just don’t fathom what has happened behind our backs. Stated in terms of the reasonable expectation of privacy, what are our “understandings [of privacy] that are recognized and permitted by society” compared to Big Data? What can we expect? After our privacy has been stolen or usurped by commerce, can we reclaim it, or is it gone forever?