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NealBurstynFirstPaper 3 - 12 May 2015 - Main.NealBurstyn
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Riley and the Tragedy of Part Four | | | No one supposes for an instant that the call data collected by NSA is admissible in evidence in criminal proceedings where the exclusionary rule, which is the subject of Riley, would unquestionably bar both that data and anything arising from an effort by police or prosecutors to consult it. That's one aspect of the strong distinction between intelligence services and criminal justice, or spooks and cops, in US (and pretty much only US) law. But that's not the same question by a light year as whether the Fourth Amendment in itself establishes a basis for award of an injunction to prohibit government activity, said to be necessary in the interest of national security and subject to judicial review under statutory standards, which results in collection of information by means that would undoubtedly result in exclusion if proffered in a criminal prosecution. The present draft conflates those questions, making an issue appear to hover. If it is a phantom, the second half of the draft should change. If it is not, the first half concerning Riley is immaterial, and the route to improvement is to use the space presently consumed by that discussion to meet the real issues in Klayman squarely.
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Riley, Klayman, and the Tragedy of Part Four (Second Draft)
-- By NealBurstyn - 12 May 2015
February
Professor Moglen has made it abundantly clear that he believes the Fourth Amendment to be a lost cause, a “timid contraption.” It protects only places and we do not live in places anymore. We will not get the Fourth Amendment to happen. It is buried deep in a dark February frozen hellscape, a frigid wasteland.
Perhaps it is naiveté or pure stubbornness, but I refuse to believe either that the Fourth Amendment is dead as it relates to data privacy.
Is Professor Moglen correct that Riley was a good but grossly inadequate decision? I would like to argue that although the Riley opinion was on its face a narrow decision that was directed at the use of data collected without a warrant as evidence in a criminal proceeding, language in the unanimous opinion suggests that the Court may susceptible to issuing a favorable Fourth Amendment opinion. With Klayman v. Obama coming down the pipes, a favorable discussion of the Constitutionality of indiscriminate data collection will have to occur.
It should be noted that the discussion of the issues may be rendered moot depending on legislative rumblings.
Persons, Houses, Papers, and Effects (and Data?)
In a unanimous decision, the Supreme Court held in Riley v. California that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” Acknowledging that a police officer could reasonably search a person during an arrest in order to remove any weapons, the Court found cell phones to be “minicomputers” storing digital data that posed no danger to the safety of arresting officers. Therefore, it would not be reasonable for police officers to search a cellphone’s digital contents for the sake of preserving officer safety.
Stressing a cell phone’s ability to carry thousands of images and personal communications, have apps installed that can “form a revealing montage of the user’s life,” and contain the search and browsing history of the owner which “could reveal an individual’s private interests or concerns,” the Court found that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Granting police officers the OK to search the digital data on a cell phone would amount to giving them the “unbridled discretion to rummage at will among a person’s private effects.”
The Court goes so far as to say that the data contained on a cell phone, such as a person’s browsing history and what apps they have installed, are a person’s private effects. The private effects that Fourth Amendment contemplates and the private effects that cannot be inspected without a warrant. That the Court considers search history and a phone’s call log (metadata) to be private effects protectable by the Fourth Amendment seems at odds with Smith v. Maryland which held that no warrant was required to identify phone numbers dialed. But the Court in Smith found that investigating a pen register was “not a ‘search’ at all under the Fourth Amendment.” It is for that reason the Riley Court was brief to say the least in its inquiry into the relevance of Smith. There was no dispute that the officers in Riley “engaged in a search” of the cell phone.
Klayman: "the sound of inevitability."
Something seems blatantly out of touch with reality when the argument is proffered that there is a conceptual distinction between the privacy rights at issue in Riley and the privacy rights at issue in the NSA's current practice of mass data gathering. Of course, there are clear tangible differences between a local police officer perusing a perp's phone for evidence and a federal intelligence agency mass collecting data from telecoms. But it seems to me that only the most strained of legal fictions can come to the conclusion that Wurie has a reasonable expectation of privacy in his browsing history and call log stored on his phone--and the Riley opinion even addressed that much of the data may be stored remotely and found that this only underscored the privacy interests at issue--but that he would not have the same reasonable expectation of privacy in the same exact information when it is stored by his Internet service provider, regardless of the governmental actor looking.
Although I concede that I appear to be conflating two legally distinct issues, (1) the exclusion of data retrieved by police without a warrant and (2) the mass collection of data from telecoms, I believe the two issues should be conflated and that it is a disservice to the rights at issue to not consider the two one and the same. Based on the language in Riley that data such as browsing history and call logs are to be considered private effects that carry a reasonable expectation of privacy, it appears the only leg left to stand on to differentiate the two situations is the proposition that in the former an actual search is performed, but not in the latter.
With that in mind, we move to the crucial opinion issued in Klayman v. Obama. The D.C. District Court there found that there is a distinct difference between the “one-time, targeted request for data” in Smith and the current climate of indiscriminate data gathering. The court went on to describe the data gathering program as inimical to the proscription against “general warrants” enshrined in the Fourth Amendment and referenced by the Court in Riley. Although the court granted injunctive relief to the plaintiffs and entered an order barring the Government from the mass gathering of metadata as part of the NSA’s Bulk Telephony Metadata Program, the court stayed its order pending appeal.
Thus when and if Klayman reaches the Supreme Court, how can a rational opinion be constructed that although there is a reasonable expectation of privacy in our browsing history, call log, and applications installed that garners Fourth Amendment protection (even when stored remotely), that reasonable expectation suddenly evaporates when it is conducted on a grand scale? |
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