> Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”
This is a very shitty ruling that denies basic mathematical fact: a graph of nodes contains data that simply isn't present in a lone node.
Edit: The difference actually springs from a qualitative difference in the search. In the case of a lone person, the government is seeking information about that person in a vacuum; in the case of hoovering up millions of records, they're explicitly looking for interconnections, which is different in kind than if they were looking at each record in isolation, and just happened to have millions. The FISC court is essentially misrepresenting the nature of the bulk search by pretending it's merely many copies of an individual search, rather than a different type of search, altogether.
The FISC ruling ignores that fact because its simply not relevant to a 4th amendment analysis. The fourth amendment is rooted in an expectation of privacy. If one person can't reasonably expect the police not to drive by and look at what's on his lawn, a 4th amendment issue doesn't suddenly arise just because they canvas the whole block. The amount of information yielded by a search is simply not one of the elements of the 4th amendment. Maybe it should be, but it isn't, and the FISC isn't entitled to just add that to the analysis out of thin air.
You're the professional, but to my understanding your characterization that the amount of information yielded by a search is a 4th amendment analysis "out of thin air" isn't accurate. Alito wrote in his concurrence in Jones v. United States:
Justice Alito then evaluates the GPS surveillance here, noting that “devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” “[T]he best we can do in this case,” reasons Alito, “is to apply existing Fourth Amendment doctrine” and “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Alito at 13. Under this inquiry, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” because “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”http://www.concurringopinions.com/archives/2012/01/united-st...
It seems to me that Alito is saying that the amount of information gathered in Jones is relevant to 4th Amendment analysis. Specifically: "society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period". Three other justices joined with Alito on this concurrence.
I'm not professionally trained in this this domain, so I might be missing something. Can you reconcile Alito's concurrence with your position? Yes it was not the opinion of the Court, but surely a concurrence clears the "out-of-thin-air" bar?
It's entirely relevant if the expectation of privacy includes the information extracted, but not the underlying individual pieces, but that's somewhat tangential to why I think it's problematic.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment doesn't expressly mention privacy, but it does talk about the specificity of the search - and I'd argue that using instruments meant for the collection of lone records to gather entire sets of social information synthesized from those records likely violates both the specificity (they're fishing, not being targeted) and may violate the reasonable requirement.
It's also a possible violation of the First Amendment, as it has an inherently chilling effect on the right to free association if the government is constructing a database of all your interactions with people, for the purpose of later deciding what you did wrong.
1) Is there a reasonable expectation of privacy? This expectation refers to the situation, not the information extracted.
2) If there is a reasonable expectation of privacy, a warrant requiring specific descriptions of what is to be searched is required.
You're right that collecting lots of peoples' information creates a specificity problem in situations where a warrant is required, but if there is no reasonable expectation of privacy to begin with, that prong doesn't even enter into the analysis.
Aren't those "two steps" and the analysis sort of after-the-fact relative to the 4th Amendment itself? I mean, those "There are X steps to a blahblah" things are Supreme Court Rulings from the recent past. Those analyses are the stuff of lawyering, and seem to me to divorce the plain meaning of the US constitution from how it's currently interpreted. The whole 3rd Party Records doctrine stems from such a divorce, and seems to defy the plain wording of the 4th Amendment. It also seems like a petty dodge on the part of law enforcement, frankly. "Oh, not a search, 'cause you let the phone company in on the deal." Sure, but The Phone Company doesn't care what I say in the call, and doesn't have the capacity to record every damn thing I say. Also, there's something of a professional relationship there.
I realize that nothing I wrote would withstand some kind of "N-Prong Test for Violation of Privacy", but that's the point. Those "N-Prong tests" are a way of talking around a violation of privacy.
Note the posture of my comment: talking about the FISC court's ruling. While you're entitled to argue about the merits of the Supreme Court's 4th amendment jurisprudence, the FISC court is not. It must analyze the issues in terms of the framework established by the higher court.
Frankly, I expect better from people as smart as Federal Judges that are outstanding enough to get appointed to a special higher court. I expect them to use logic and reason from first principles as well as coloring between the lines.
I also see "analyze the issues in terms of the framework" as another petty dodge. It appears that lawyers and judges are in some "inner circle", and they are rooking the rest of us of some pretty plainly worded rights by making up "frameworks" and demanding "standing" in order to construct weird Catch-22s that leave people singing that at least they know they're free, but not actually having any such freedoms because of "3 prong tests" for something irrelevant.
But, is this argument flawed in a legal sense? What other legal principle says that obtaining the business records (i.e. phone records, web browsing history) of one person is different from millions of people?
I have an intuitive sense that (a) it's bad because it makes a mockery of limited government (b) just as deepening a search into one person requires more justification (probable cause, etc), widening a search ought to require similar special justification.
My point is much more narrow: that the collection of millions of records to make a graph of relationships, to scan for patterns in the graph is fundamentally a different kind of search from obtaining the records of activity a lone person to specifically look in to their actions.
My edit elaborated on this: the mass record gathering is not fundamentally millions of lone investigations happening in parallel, but a fundamentally different kind of investigation; they're collecting the edges of the graph, not merely many nodes instead of a single node.
The court failed to rule on the relevant question, through what seems like ignorance of the underlying mathematics/information theory involved in the situation.
Essentially, the government ruled on "What if you collect all the nodes for the graph, instead of just one node?" rather than "What is the proper manner (if any) to collect the edge information of the graph?" It's not obvious that the government has an authority to gather those relationships (the connections between specific nodes) in bulk, and that it is a different kind of search, fundamentally, from looking at a specific node (or many of them in parallel). What the information is going to be used for is relevant to the question of their obtaining it.
In that sense, their ruling is bad because it's not even answering the right question.
I hear you - of course it is different, but what legal principle can we call upon to make this count in the court?
(I'm not a lawyer, so the following analogy may be way off.)
Look at it this way. In the USA, people have a right to individual liberty. A cop can ask you to step out of the way while she performs her duties. That's a tiny breach of your liberty, weighed against the benefits of the cop performing her job of protecting the public. But you can't extend that principle to mean a cop can ask a million people to move across town, because a million times a small injury is a big injury.
The government here is arguing that the injury of looking over one person's business records is zero. And arguably, in their terms, it is. The subject doesn't even know it happened. As long as the government treats the individual records with appropriate care, they would say there's no harm. And a million times zero, in their calculation, is still zero.
What you're trying to say is that of course a million people's phone records is totally different from one. It gives the government a kind of power over the entire population they did not have before. But it seems we can't get there by multiplying the harms to one person. So what is the principle that we use?
> what legal principle can we call upon to make this count in the court?
It's already the case that different kinds of searches have different standards to obtain the information.
The argument lies in convincing them of the truth: that this is a qualitative change in the type of search, not a merely quantitative change, ie, that they're not merely multiplying the number of a certain kind of search by a million (which could be the correct ruling, were the government using the information differently, as the court appears to believe they are), but rather, committing a fundamentally different type of search.
> What you're trying to say is that of course a million people's phone records is totally different from one
Not quite, it's a little more subtle: using a million people's phone records to correlate data and construct a graph not available without processing many of their records together is fundamentally a different activity than merely having a million records and looking through them each as if they were merely individual records.
The NSA is analyzing the edges of the graph, and their relationships, not the node data directly; the court ruled that analyzing a million nodes is no different than analyzing one. I agree - however, it's not a relevant question to this case, and betrays a fundamental misunderstanding of what's happening on their part.
Conspiration to kill the president. A single person cannot conspire, so that EX NIHILO a possible crime appears needing at least two people. Each of them alone may noy have a fourth ammendment interest BY HIMSELF (it is difficult to accuse someone of conspiration without a partner...) . A conspiarcy takes two to exist. It is not so easy as they state it. And it is because... people are mostly relations, not monads. It is not ex nihilo, it is ex essentia personae why the mutual interest may appear.
Edit: Imagine: we are searching your house looking for evidence of conspiracy. But you are the only suspect...WTF?
Why is this court even allowed to make such ruling anymore? Take the case straight to the Supreme Court. FISC is a joke that needs to be immediately disbanded.
You don't want this to go to the Supreme Court yet. You won't like he outcome. This needs to wait until there is at least an articulable alternate framework for pro-privacy folks to point to. When you're inventing rights out of thin air, as any "right to privacy" justices would be doing, you need more to hang your hat on.
> an articulable alternate framework for pro-privacy folks to point to
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
No change. That particular case just happens to hit his "states rights" stance, and since it's a dissent, he can make the dissent without changing how the decision actually goes. Also, he appears to be a bit schizo on the drug issue:
That Roberts, what a jerk. It's not enough for him to rule over one court, he has to go around picking the people in charge of other courts, too. What gives him the right?
based on Robert's own writings, I do not think he would be terribly upset if they would put the power of appointments back to the Presidency.
I for one would like it because it would force the Administration to accept some responsibility for the courts, something it can easily distance itself from now. They currently get all the benefits without the repercussions, going to be hard to make them accept both
Watch the comments on Ars, they won't be all that outraged. Something funny is going on over there. They are learning to love Statism and its philosophies.
IANAL, but could one make a case that our freedom of association is being violated by the Feds knowing every person we talk to, text, meet (location data) etc?
The opinion is rather dense and I don't expect everyone will take the time to read it. In the interest of promoting discussion, here's what Ars Technica said:
"The government’s response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person’s information without a warrant, it can monitor everyone’s information, “regardless of the collection’s expanse.” Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court."
... and here's the paragraph of the opposition document that they are quoting:
"(U) Third, Moalin lacks standing to assert the interests of and service provider, or the interests of other persons whose telephony metadata may have been collected along with his own, regardless of the collection's scope. Fourth Amendment rights are "personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched." Steagald v. United States, 451 U.S. 204, 219 (1981); accord Minnesota v. Carter, 525 U.S. 83, 88 (1998) (a person claiming Fourth Amendment protection "must demonstrate that he personally has an expectation of privacy in the place searched"). Accordingly, "a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights." United States v. Payner, 447 U.S. 727, 731-32 (1980); see also In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (rejecting argument that a subpoena was unreasonable under the Fourth Amendment because it "may make available to the grand jury [money transfer] records involving hundreds of innocent people"); United States v. Rigmaiden, 2013 U.S. Dist. LEXIS 65633, at 38 (D. Ariz. May 8, 2013) (United States did not violate defendant's Fourth Amendment rights by acquiring 1.8 million IP addresses from Verizon); Li, 2008 U.S. Dist. LEXIS at 17 (because the court concluded that the defendant lacked any reasonable expectation of privacy in the evidence obtained from the third-party service provider, "the court also finds that defendant does not have standing to seek suppression of the evidence"). Therefore, neither Moalin nor his co-defendants have standing to challenge the United States' collection from the service provider, regardless of the collection's expanse. See In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, 2013 WL 5307991, at 5 (For. Intell. Surv. Ct. August 29, 2013), (hereinafter "FISC's August 29th Memorandum Opinion" or "In Re Application of FBI") ("Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.").
This is a very shitty ruling that denies basic mathematical fact: a graph of nodes contains data that simply isn't present in a lone node.
Edit: The difference actually springs from a qualitative difference in the search. In the case of a lone person, the government is seeking information about that person in a vacuum; in the case of hoovering up millions of records, they're explicitly looking for interconnections, which is different in kind than if they were looking at each record in isolation, and just happened to have millions. The FISC court is essentially misrepresenting the nature of the bulk search by pretending it's merely many copies of an individual search, rather than a different type of search, altogether.