From: "[email protected]" <[email protected]>
>Good news I guess, a small victory.
>However I think that is just a simbolic victory, useful only to make
>more people to become aware about surveillance. With the new
>technologies and with all the infrastucture already done record and
>collect the metadata of the phones is too easy, too cheap, too tempting
>to don't do it. And NSA will continuous doing it.
The following is a quote from this decision, referencing a case (Smith v.
Maryland) where the Supreme Court upheld the installation of a 'pen register'
(a device for recording the numbers which a telephone line calls) on a small
number of phone lines. Correctly, this appeals court rejects the application
of the Smith case. Going from tapping the metadata of perhaps 4-5 lines to
that of 100 million lines was too much of a stretch. Further, the
justification in Smith was based in part on the idea that a telephone customer
voluntarily gave a phone number to his phone company to complete the call he
wanted.A major problem with such a justification today is that while in 1978
(or so) it was necessary to collect and store the 'called-party' number for
billing purposes, in 2015 we no longer bill by the mile (as was done by Long
Distance accounts in the 1970's and 1980's) or in most cases even the duration
of the call. There is, therefore, no reason for the phone company to even
collect the information other than to complete the call, and to keep it only
until the time the call ends. So, trying to use the fact that the customer
gives this information to the TPC ("The Phone Company") has become quite
tenuous and unnjustifiable. I recommend to all the 1967 movie, "The
President's Analyst", which can be seen to be wonderfully prescient. True,
they cannot (yet) implant telephones in our bodies, but the main limitation on
how small those phones can get is maintaining our ability to interact with
them, until they become too small for fingers to control. Jim Bell
quote follows:
"The Supreme Court has also long held, however, that individuals have
no“legitimate expectation of privacy in information [they] voluntarily turn[]
over tothird parties.” Smith v. Maryland, 442 U.S. 735, 743‐44 (1979); see,
e.g., Californiav. Greenwood, 486 U.S. 35 (1988) (no objectively reasonable
expectation ofprivacy in garbage exposed to the public by being placed on a
sidewalk); UnitedStates v. Miller, 425 U.S. 435 (1976) (no legitimate
expectation of privacy in bankrecords). In Smith v. Maryland, the Court
applied that doctrine to uphold theconstitutionality of installing a pen
register at a telephone company’s office thatrecorded the numbers dialed from a
criminal suspect’s home telephone. 442 U.S.at 737, 745‐46. The Court held
that the installation of the pen register was not a84Case 14-42, Document
168-1, 05/07/2015, 1503586, Page84 of 97 Case 14-42, Document 170, 05/07/2015,
1503607, Page84 of 97search for Fourth Amendment purposes because, by placing
calls, individualsexpose the telephone numbers they dial to the telephone
company and therefore“assume[] the risk that the company [may] reveal to police
thenumbers . . . dialed.” Id. at 744. Similarly, it has long been commonplace
forgrand juries to subpoena an individual’s telephone records from the
individual’stelephone service provider, in the absence of probable cause or a
warrant issuedby a judge. The acquisition of such records, it has been held,
implicates nolegitimate privacy interest of the subscriber, because the records
are not his orhers alone. See, e.g., id. at 742‐44; Miller, 425 U.S. at 443;
Couch v. United States,409 U.S. 322, 334‐36 (1973). The subscriber cannot
reasonably believe that therecords are private, because he or she has
voluntarily exposed the informationcontained in them to the telephone company,
which uses them for its ownbusiness purpose of billing the subscriber.The
government argues, and the district court held, that this doctrinerequires
rejection of appellants’ claim that the acquisition of telephone metadata(as
opposed to the contents of communications) violates the Fourth Amendment,or
even implicates its protections at all. Appellants respond that modern85Case
14-42, Document 168-1, 05/07/2015, 1503586, Page85 of 97 Case 14-42, Document
170, 05/07/2015, 1503607, Page85 of 97technology requires revisitation of the
underpinnings of the third‐party recordsdoctrine as applied to telephone
metadata.Appellants’ argument invokes one of the most difficult issues in
FourthAmendment jurisprudence: the extent to which modern technology alters
ourtraditional expectations of privacy. On the one hand, the very notion of
anindividual’s expectation of privacy, considered in Katz a key component of
therights protected by the Fourth Amendment, may seem quaint in a world in
whichtechnology makes it possible for individuals and businesses (to say
nothing of thegovernment) to observe acts of individuals once regarded as
protected frompublic view. On the other hand, rules that permit the government
to obtainrecords and other information that consumers have shared with
businesseswithout a warrant seem much more threatening as the extent of such
informationgrows."
