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Is this the beginning of the end of the age of legal government spying? Is this the beginning of the end of the age of legal government spying?
(about 2 hours later)
The US supreme court's unanimous 9-0 opinion The US supreme court's unanimous 9-0 opinion this week requiring police to get a warrant before searching your cellphone is arguably the most important legal privacy decision of the digital age. Its immediate impact will be felt by the more than 12m people who are arrested in America each year (many for minor, innocuous crimes), but the surprisingly tech-savvy opinion from Chief Justice John Roberts may also lead to far more protection than that.
this week requiring police to get a warrant before searching your cellphone
is arguably the most important legal privacy decision of the digital age. Its
immediate impact will be felt by the more than 12m people who are arrested in America each
year (many for minor, innocuous crimes), but the surprisingly
tech-savvy opinion from Chief Justice John Roberts may eventually lead to far more protection than that.
Roberts's analysis of the current state of the digital world in his Riley v Wurie opinion is was so thorough, and so sweeping, that I'd be willing to bet you won't find many privacy and technology cases going forward that don't cite this one.Roberts's analysis of the current state of the digital world in his Riley v Wurie opinion is was so thorough, and so sweeping, that I'd be willing to bet you won't find many privacy and technology cases going forward that don't cite this one.
From phone tracking to NSA snooping and beyond, here's a look at the domino effect.From phone tracking to NSA snooping and beyond, here's a look at the domino effect.
1. Cellphone location information: not 'just metadata' anymore1. Cellphone location information: not 'just metadata' anymore
One of the most contentious issues in courts high and low right now is the extent to which your cellphone location information One of the most contentious issues in courts high and low right now is the extent to which your cellphone location information should fall under the Fourth Amendment's protection against unreasonable search and seizure. Whether you're on a call or not, your phone emits a signal to cell towers that pinpoints your exact whereabouts, 24/7. And the cops believe – as they do for most things digital – that they can get that information without a warrant. Two appeals courts have, sadly, agreed with them, but two weeks ago, the 11th Circuit Court of Appeals issued an important decision: yes, your location information should be protected. The 11th Circuit relied heavily on a concurring opinion by Justice Sonia Sotomayor in a case involving GPS trackers from 2012 called US v Jones.
should fall under the Fourth Amendment's protection against unreasonable search and seizure. Whether you're on a call or not, your phone emits a signal to In this week's supreme court case, Roberts approvingly cited and quoted from that Sotomayor opinion when explaining just how sensitive the location data emitted from your phone can be – even though he didn't join Sotomayor's opinion at the time. That's a big deal.
cell towers that pinpoints your exact whereabouts, 24/7. And the cops believe – as they do for most things digital – that Sotomayor's concurrence that "a precise, comprehensive record of a person's public movements ... reflects a wealth of detail" isn't binding law, and neither are Roberts's comments on the sensitivity of location information. So the supreme court isn't necessarily endorsing warrants. But there will be a ripple effect of citations every time the government argues that your location info is "just metadata" and shouldn't count as a search. And given that Riley was a unanimous opinion, it might be more of a tidal wave than a ripple – and phone companies may not have to hand over our data to the authorities with little to no oversight for too much longer.
they can get that information without a warrant. Two appeals courts have, sadly, agreed Oh, and Stingrays, those fake cellphone towers cops have been using to vacuum up the cellphone information of entire neighborhoods? Those are in trouble, too.
with them, but two weeks ago, the 11th Circuit Court of Appeals
issued an important decision: yes, three judges ruled, your location information
should be protected. The 11th Circuit relied heavily on a concurring
opinion by Justice Sonia Sotomayor in a case involving GPS trackers from 2012
called US v Jones.
In this week's supreme court case, Roberts approvingly
cited and quoted from that Sotomayor opinion when explaining just how sensitive the location data
emitted from your phone can be – even though he didn't join
Sotomayor's opinion at the time. That's a big deal.
Sotomayor's concurrence that "a precise, comprehensive record of a person's public movements ... reflects a wealth of detail" isn't binding law, and neither are Roberts' comments on the
sensitivity of location information. So the supreme court isn't necessarily endorsing warrants. But there will be a ripple effect of citations every time the
government argues that your location info is "just metadata" and shouldn't count
as a search. And given that Riley was a unanimous opinion, it might be more of a tidal wave than a ripple – and we might not have to hand over our data to the authorities with little to no oversight for too much longer.
Oh, and Stingrays, those fake cellphone towers cops have
been using to vacuum up the cellphone information of entire
neighborhoods? Those are in trouble, too.
2. The NSA: 'reason to be nervous'2. The NSA: 'reason to be nervous'
Inevitably, everyone's going to wonder what this week's cellphone decision means for the future of mass surveillance by the National Security Agency. At first blush, it doesn't – at least not directly. Inevitably, everyone's going to wonder what this week's cellphone decision means for the future of mass surveillance by the National Security Agency. At first blush, it doesn't – at least not directly. Roberts adeptly sidestepped any questions about collecting pure phone records, either individually or en masse.
Roberts adeptly But if you read carefully, Roberts did throw a wrench into the NSA's main defense for what it does: self-policing. The NSA's argument has always been essentially this: we don't need court oversight over our massive surveillance machine because our internal privacy controls are so good.
sidestepped any questions about collecting pure Roberts, however, ridicules this theory in his Riley opinion: the government promised the court it would create "government agency protocols" and make sure not to abuse its power if allowed to continue searching cellphones without a warrant. "Probably a good idea," Roberts wrote after going into detail about the historical origins of the Constitutional right to privacy, "but the Founders did not fight a revolution to gain the right to government agency protocols."
phone records, either individually or en In other words, self-policing doesn't cut it. The between-the-lines ace Marcy Wheeler has gone into some detail about this line, but Tim Edgar, a former official at the Director of National Intelligence, also suggested the same thing. As he wrote at the NSA-friendly Lawfare blog, "After Riley, the intelligence community has some reason to be nervous."
masse.
But if you read carefully, Roberts did throw a wrench
into the NSA's main defense for what it does: self-policing. The NSA's
argument has always been essentially this: we don't need court oversight over our massive
surveillance machine because our internal privacy controls are so good.
But Roberts ridicules this theory in his Riley opinion: the government promised the court it would create "government agency protocols" and make sure not to abuse its power if allowed to continue searching cellphones without a warrant. "Probably a good idea," Roberts wrote after going into detail about the
historical origins of the Constitutional right to privacy, "but the Founders
did not fight a revolution to gain the right to government agency protocols."
In other words, self-policing doesn't cut it. The between-the-lines ace Marcy Wheeler has gone into some detail about this line, but Tim Edgar, a former official
at the Director of National Intelligence, also suggested
the same thing. As he wrote at the NSA-friendly Lawfare blog, "After Riley, the
intelligence community has some reason to be nervous."
3. Cloud3. Cloud
computing: 'little difference' could make a big differencecomputing: 'little difference' could make a big difference
Anything the supreme court says about Anything the supreme court says about cloud computing has obvious implications for almost everyone on the internet, given that's where users increasingly keep their information.
cloud computing has obvious implications for almost everyone on the At the same time, the cloud has always terrified privacy advocates because of what's known as the "third party doctrine", devised by the supreme court in the pre-digital era. The theory, as law professor Daniel Solove explained this week, "holds that if data is known to a third party, then there is no reasonable expectation of privacy in that data (and, as a result, no Fourth Amendment protection at all)."
internet, given that's where users increasingly keep their information. One appeals court has knocked holes in this idea, at least when it comes to the content of your emails. (And, thankfully, all the big email providers still force the government to get a warrant to search your emails.) Still, the supreme court hasn't addressed the third party doctrine directly in decades, meaning various local and federal government agencies – not just the NSA – think that as long as a third party holds your data, it's potentially fair game.
At the same time, the cloud has always terrified But Roberts called into question this distinction when he wrote that it "generally makes little difference" whether data in your cellphone is stored locally or in the cloud. This may seem like a throwaway line, but it could hold significant sway down the road.
privacy advocates because of what's known as the "third party doctrine", Of course, much of this amounts to reading the tea leaves, and the justices may shift course when national security or purely third-party records get involved. As the law professor and blogger Orin Kerr noted in his analysis of the Riley opinion, "I suppose there's something for everyone if you look hard enough." And we know the Justice Department, never willing to rest while privacy rues the day, will try to find every way which around the warrant requirement. It only took them a couple hours to say so.
devised by the supreme court in the pre-digital era. The theory, But we know this: in the last two cases heard by the supreme court directly concerning technology and the Fourth Amendment, the government has lost to the justices by a combined score of 18-0. And with Roberts's newfound technological acumen, along with his penultimate paragraph, those of us terrified about the potential consequences of the court's lack of experience with technology can rest a little easier:
as law professor Daniel
Solove explained this week, "holds that if data is known to a third party,
then there is no reasonable expectation of privacy in that data (and, as a
result, no Fourth Amendment protection at all)."
One
appeals court has knocked holes in this idea, at least when it comes to the
content of your emails. (And, thankfully, all the big email providers still force
the government to get a warrant to search your emails). But the supreme court hasn't
addressed the third party doctrine directly in decades, meaning various local and federal government
agencies – not just the NSA – think that as long as a third party holds your data, it's
potentially fair game.
But
Roberts called into question this distinction when he wrote that it "generally makes little
difference" whether data in your cellphone is stored locally or in the cloud. This may seem like a throwaway line, but it could hold significant
sway down the road.
Of course, much of this amounts to reading the
tea leaves, and the justices may shift course when national security or purely
third-party records get involved. As the law professor and blogger Orin Kerr noted in his analysis of the Riley
opinion, "I suppose there's
something for everyone if you look hard enough." And we know
the Justice Department, never willing to rest while privacy rues the day, will try to find every way which around the warrant requirement. It only took them a couple hours to say so.
But we know this: in the last two cases heard by the
supreme court directly concerning technology and the Fourth Amendment,
the government has lost to the justices by a combined score of 18-0. And with Roberts' new-found
technological acumen, along with his penultimate paragraph, those of us terrified
about the potential consequences of the
court's lack of experience with technology can rest a little easier:
Mic drop. pic.twitter.com/SiGgYJj7BFMic drop. pic.twitter.com/SiGgYJj7BF
As Wheeler noted, "get a warrant" was once just theAs Wheeler noted, "get a warrant" was once just the
tagline for noted hippies and privacy geeks. Now it's got a hero: the chief justice of the supreme court. tagline for noted hippies and privacy geeks. Now it's got a new face: the chief justice of the supreme court.