

The Supreme Court may have already ruled NSA phone surveillance is illegal - il
http://influencehacks.com/an-important-point-about-the-nsa-surveillance-scandal

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einhverfr
Technically they didn't, but interpreting how Jones will be used going forward
is like reading tea leaves. Technically the Supreme Court, in Jones, ruled
that altering a car in order to track its location constitutes a search. On
this matter, five justices (Roberts, Scalia, Thomas, Kennedy, and Sotomayor)
agreed to rule narrowly and put off any decisions on wider surveillance for
another day. Scalia's opinion of the court makes it clear that it is not
deciding any issues beyond that. Sotomayor's concurrence agrees.

Beyond that point, things become a bit tricky. Alito filed a concurrence in
judgement (meaning he reached the same decision on different grounds) arguing
the GPS tracking was a search because it was too intrusive in terms of the
information collected and therefore violated a reasonable expectation to
privacy. Kagan, Breyer, and Ginsberg joined him.

If that were the end of the matter, that would not make things hard at all,
but then we have to come back to Sotomayor's concurrence. In her concurrence
she expressly agreed that _although_ the case was disposed of narrowly with
her support, she _also_ agreed with the concurrence in judgement that it
violated reasonable expectation of privacy, so in this she endorsed the
minority opinion _after_ joining the majority which is why this is tricky to
make sense of.

At very least, the fact that 5 justices appear to agree that this is a problem
gives circuit courts permission to experiment with rationales as to why this
is the case. It is however premature to say that the Supreme Court has so
_ruled._

To recap, you have three opinions in Jones:

Opinion of the court (Scalia, joined by Roberts, Thomas, Kennedy, and
Sotomayor): Reasonable expectation to privacy is not the only test of the 4th
Amendment. When there is a common law trespass there is always a search. We
need not decide whether this violates reasonable expectation to privacy
because we can rule this was a search due to the trespass.

Concurring in judgement (Alito, joined by Breyer, Ginsberg, and Kagan): This
surveillance violates the 4th Amendment due to its intrusiveness and the level
of information obtained. People have a reasonable expectation to privacy that
is violated by massive surveillance of this sort.

Sotomayor, concurring with Scalia: I join Scalia in ruling on narrow grounds,
but I also think that Alito is right....

~~~
il
If I am parsing your comment correctly, is it accurate to say that there are 5
justices who agree that surveillance of cell phone location data violates the
4th Amendment based solely on the level of information collected, regardless
of how it was physically obtained?

~~~
einhverfr
It's more complex than that. Alito suggested that factors included the amount
of tracking, so tracking a car for a day would be different than tracking it
for a month or a year.

So the 5 justices might differ between whether a warrant would be required for
"show me all records of where this cell was for the last year" and "show me
where this cell was during the day that such-and-such of a crime was
committed."

I don't think there is any question that the scope and length reaches to a
point where Alito's concerns or Sotomayors would be major factors though.
These are huge, dragnet surveillance programs of the sort that I think worried
at least 5 justices (and may have worried all of them). Collecting CDRs on all
Americans on a daily and ongoing basis along with cell site location info is
more intrusive than tracking a car for a few months.

~~~
yxhuvud
The problem is that to do that kind of queries, if you don't know beforehand
what information you are looking for, then you need to store _everything_.

A comparison can be made to EU data retention laws which stipulate that
carriers should keep call records for 6 months (or somehting like that. That
is how the directive is implemented here, in Sweden).

~~~
einhverfr
> The problem is that to do that kind of queries, if you don't know beforehand
> what information you are looking for, then you need to store everything.

It's worth reading up on the history of the 4th Amendment in order to realize
that isn't very far from the specific situation it was intended to prevent,
namely "general warrants" allowing police to search whatever homes they wanted
in an investigation.

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teilo
Even if this is true, what difference does it make? I mean, seriously. Is
there anyone who still believes that the Federal government cares one whit
about what the law and the courts say?

How many times will we repeat this cycle before people get a clue? Yes, they
will do lip-service to this or that court decision, and close down one
program, while simultaneously launching another, under a different moniker,
doing the same or worse.

Governments make laws for the plebeians to follow. They do not make laws which
they intend to follow themselves.

~~~
venomsnake
Because till now they could scare the public with terrorism or CP. Right now
it seems the american public has awaken and is refusing to be scared by the
vague external threats.

~~~
teilo
I think it is incredibly naive to think that the American people are any more
awake to the deceit of the government than they were in the past. The next
major terrorist event will have people running to Big Brother for protection,
ready and willing to give up any last vestige of freedom that they might have.

Yes, I am a cynic in these matters, but I am also a student of history. Any
honest appraisal of history makes one a cynic. A bayesian analysis on the
question as to whether the populace will continue to be deceived and
subjugated in ever greater ways and numbers is overwhelmingly at odds with
utopian ideals. I see absolutely no signs of this changing, because the nature
of humanity has not changed, nor will it ever change.

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brown9-2
This is quite the amateur legal opinion - the GPS case is not really relevant
to FISA

[http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillan...](http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act#Post-
FISA)

[http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillan...](http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act_of_1978_Amendments_Act_of_2008#ACLU_Lawsuit)

~~~
natrius
FISA does not trump the Fourth Amendment. Moreover, this controversy is about
tracking the location of Americans in America, which is beyond the purview of
FISA.

