Computers, Privacy & the Constitution

View   r4  >  r3  ...
NealBurstynFirstPaper 4 - 17 Jun 2015 - Main.EbenMoglen
Line: 1 to 1
 
META TOPICPARENT name="FirstPaper"

Riley and the Tragedy of Part Four

Line: 59 to 59
 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.
Added:
>
>
And, after all, why should the presence or absence of a search matter to Fourth Amendment analysis?

 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?


Revision 4r4 - 17 Jun 2015 - 15:23:58 - EbenMoglen
Revision 3r3 - 12 May 2015 - 15:40:41 - NealBurstyn
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM