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The Fourth Amendment Shell Game

April 10, 2014 in Economics

By Julian Sanchez

Julian Sanchez

The National Security Agency’s controversial call-records dragnet has never been much use at finding terrorists, as two separate government panels have concluded, but technological change has been gradually rendering it completely irrelevant. Now, under the guise of putting an end to that program—which sweeps in the phone logs of millions of innocent Americans for later analysis—President Obama has proposed a new authority that could force private corporations to act as government spies, circumventing constitutional privacy safeguards in the process.

The current version of the NSA program is based on a Patriot Act authority that lets the government obtain records already kept by phone companies for their own business purposes. But as Reuters reported last week, the president’s proposal could require carriers to create new records in response to the government’s secret demands. To understand why this would set such a dangerous precedent, it’s necessary to understand the legal theory behind the NSA program as it now exists.

One of Obama’s NSA reforms just makes the problem worse.”

If the government wants to seize your cellphone in order to learn whom you’ve been calling, the Fourth Amendment requires a judicial warrant, based on evidence that provides “probable cause” to believe you’re up to no good. But thanks to a 1979 Supreme Court ruling, Smith v. Maryland, it doesn’t need to meet that high standard if it collects the same information from the phone company. When you place a call, the court reasoned in Smith, you “knowingly expose” the number you’re dialing to the phone company—and any customer who ever looked at a phone bill should be well aware that carriers keep records of those numbers, along with the times and durations of calls. In the process, the Smith decision argued, you waive your “reasonable expectation of privacy”—and therefore your Fourth Amendment rights. That “third party doctrine,” as legal scholars have dubbed it, is why the NSA doesn’t need to worry about formalities like “probable cause” or “particularized suspicion” when it vacuums up phone records in bulk.

Things have changed since the ’70s, however, and increasingly phone companies aren’t bothering to bill customers by individual calls—which means they may not need to keep all the detailed information NSA wants for billing purposes, at least not in a form that separates it from information NSA is barred from collecting, like location data. Instead, they’re moving to flat-rate billing that more closely resembles the model most Internet providers use, …read more

Source: OP-EDS

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