

DoJ: If we can track one American, we can track all Americans - shawndumas
http://arstechnica.com/tech-policy/2013/10/doj-if-we-can-track-one-american-we-can-track-all-americans/

======
DerpDerpDerp
> 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.

~~~
rayiner
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.

~~~
DerpDerpDerp
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.

~~~
rayiner
There are two steps to the analysis:

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.

~~~
bediger4000
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.

~~~
rayiner
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.

~~~
bediger4000
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.

------
csandreasen
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.").

