Hey NSA: Even If AT&T Was Collecting The Info For You, The Fourth Amendment Still Applies

from the can't-outsource-constitutional-responsibility dept

Tue, Aug 18th 2015 1:43pm — Mike Masnick

We've already written a few articles about the confirmation that AT&T is going above and beyond what's required by the law to be a "valued partner" of the NSA in helping with its surveillance campaign. While it's long been known that AT&T was giving fairly direct access to its backbone (thank you Mark Klein!), the latest released documents provide much more detail -- including that AT&T often does the initial "sifting" before forwarding content it finds to the NSA. To some NSA apologists, this is proof that the NSA isn't so bad, because it doesn't have full unencumbered access to everything, but rather is relying on AT&T to do the searching and then handing over what it finds. Of course, as the documents showed, it's only in some cases that AT&T searches first, in others it appears that the NSA does, in fact, have full access.

But, still, as Cindy Cohn at the EFF is noting, if the NSA thinks that having AT&T sift first and then voluntarily hand stuff over somehow absolves it of violating the 4th Amendment with these collections, well, then the NSA is wrong.

First some law: the Fourth Amendment applies whenever a "private party acts as an ‘instrument or agent’ of the government." This rule is clear. In the Ninth Circuit, where our Jewel v. NSA case against mass spying is pending, it has been held to apply when an employee opens someone's package being shipped in order to obtain a DEA reward (US v. Walther), when a hotel employee conducts a search while the police watch (US v. Reed), and when an airline conducts a search under a program designed by the FAA (United States v. Davis), among others.

The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights. It seems that the NSA may have been trying to do just that. But it won't work.

Given that the EFF is already challenging this collection in the Jewel v. NSA case, it seems like the latest leak may be somewhat helpful.

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Filed Under: 4th amendment, 702, backbone, mark klein, mass surveillance, nsa, surveillance, tapping, upstream
Companies: at&t

26 Comments

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Anonymous Coward, 18 Aug 2015 @ 1:45pm

I believe the title should be Hey NSA: Even If AT&T Was Collecting The Info For You, The Fourth Amendment Still Applies.
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SolkeshNaranek (profile), 18 Aug 2015 @ 1:47pm

Hey NSA: Even If NSA Was Collecting The Info For You, The Fourth Amendment Still Applies
Shouldn't the title be:

Hey NSA: Even If AT&T Was Collecting The Info For You, The Fourth Amendment Still Applies
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Anonymous Coward, 18 Aug 2015 @ 1:55pm

Re: Hey NSA: Even If NSA Was Collecting The Info For You, The Fourth Amendment Still Applies
Also:

"Of course, as the documents showed, it's only in some cases that AT&T searches first, in others it appears that AT&T does, in fact, have full access"

Shouldn't that be "NSA does, in fact, have..."
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Mike Masnick (profile), 18 Aug 2015 @ 2:00pm

Re:
Yes. Fixed. Oops.
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Mike Masnick (profile), 18 Aug 2015 @ 2:01pm

Re: Re: Hey NSA: Even If NSA Was Collecting The Info For You, The Fourth Amendment Still Applies
Yes on both. Fixed on both.
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Anonymous Coward, 18 Aug 2015 @ 2:02pm

4th amendment protection of AT&T's data belongs to AT&T, which they relinquished upon voluntarily cooperating with the NSA.
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Anonymous Coward, 18 Aug 2015 @ 2:02pm

Re: Re: Re: Hey NSA: Even If NSA Was Collecting The Info For You, The Fourth Amendment Still Applies
Just goes to show that, at least in this specific case, ATT and NSA are simply interchangeable.
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Anonymous Coward, 18 Aug 2015 @ 2:14pm

Re:
The data in question is not the property of AT&T, so they do not have standing to waive any protections for that data.
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avideogameplayer, 18 Aug 2015 @ 2:18pm

The bigger question is: what other telecoms are doing the same thing?
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Mike Masnick (profile), 18 Aug 2015 @ 2:21pm

Re:
The bigger question is: what other telecoms are doing the same thing?

Did you read the original report?

The reports suggest AT&T was *by far* the closest cooperator with the NSA. Verizon was a part of a much smaller program, and it's likely a few others were as well. But none were anywhere near as close as AT&T.
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Anonymous Coward, 18 Aug 2015 @ 2:21pm

it makes no difference what the law says or how the court case, if there is one, goes, the NSA and others will ignore the outcome assuming it goes against it, as it should, and will simply be a bit more careful with how it does what it does. like other things that happen, the more it is in the open, when it isn't wanted to be, the more it gets hidden 'underground'. if things continue with the way the Internet is being locked further down, almost on a daily basis, by the entertainment industries, the more things will be done out of sight. it's the same concept. instead of curing a problem or removing an issue, it becomes harder to recognise, harder to see and ultimately, harder to find and remove. and all really due to a few people who continue to act like the complete asses that they are, always wanting and expecting to be the 'top dogs'!
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Anonymous Coward, 18 Aug 2015 @ 2:24pm

Re:
wtf?
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slimDidley, 18 Aug 2015 @ 3:08pm

Re: Re:
I believe he said:

Government sucks but when government wields the power of secrecy it sucks real bad. You can depend on it.
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J.R., 18 Aug 2015 @ 3:32pm

4th Amendment
By the logic invoked by NSA, it should be OK for them or FBI etc, to hire "partners" like the Hells Angels, KKK, Bloods, and Crips to kick in your door or any random door and "sift" your home for "evidence" or plant evidence and it wouldn't be a Fourth Amendment violation? Do I have that right?
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Anonymous Coward, 18 Aug 2015 @ 4:31pm

Anytime there is a central electronic hub for "anything" you will find the NSA near by, breaking the law and hoping not to get caught.
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Anonymous Coward, 18 Aug 2015 @ 5:00pm

AT&T huh? Well good luck with generating a profit in the years to come after this. You're that guy at the party no one wants to be around or be known to have known. Congratulations! You deserve it.
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Anonymous Coward, 18 Aug 2015 @ 6:21pm

Child pornography seems to be one exception to the 4th Amendment, as courts have ruled that it's proper for a computer technician to rat out a customer to police when there's suspicion of child pornography. It's not legally considered a warrantless search-by-proxy ... even though it really is.

And going down the slippery-slope route, a computer technician finding terrorist-oriented material might be the next logical extension of that 4th-amendment-free zone.
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DerekCurrie (profile), 18 Aug 2015 @ 6:32pm

Totalitarian Surveillance Maniac Traitors
Does this phrase describe the NSA? Let's change that. The US Constitution is how We The People rule the USA, NOT our elected government and their assigned lackeys . Deal with it or drop out and leave. No '1984' scenarios are welcome.
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tqk (profile), 18 Aug 2015 @ 7:03pm

Re:
instead of curing a problem or removing an issue, it becomes harder to recognise, harder to see and ultimately, harder to find and remove.

Which, incidentally, is why Congress needs to approve umpty-gajillion dollars more funding to the NSA so they can catch up with their targets.

See how that works?
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Pixelation, 18 Aug 2015 @ 7:07pm

Hey NSA, just because that hooker is giving you some freebies doesn't make it legal. They should understand that one. Ahh, who am I kidding...
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tqk (profile), 18 Aug 2015 @ 7:11pm

Re:
You're that guy at the party no one wants to be around or be known to have known.

We wish. There's plenty of amoral corporations out there who're happy to buy services from other amoral corporations. They don't need all those millions of Joe Blows out there who spend an inordinate amount of time and effort complaining about things like data caps.
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Anonymous Coward, 18 Aug 2015 @ 9:35pm

Re:
I believe the title should be:

Hey NSA: stop raping innocent people.
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Anonymous Coward, 18 Aug 2015 @ 9:58pm

...The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights.

It's too bad outsourcing search and seizures doesn't apply to automatic license plate reader companies, who turn around and sell database access to law enforcement.

In the future, I imagine all cars will broadcast an identification signal similar to aircraft transponders. At which point we'll always be on the government's radar.
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Anonymous Coward, 18 Aug 2015 @ 11:29pm

The latest AT&T/NSA reveal should hopefully help the Jewel case.
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Anonymous Coward, 19 Aug 2015 @ 4:45am

Re: Re:
>" data in question is not the property of AT&T"

I have a feeling that would be extremely difficult to argue in court.
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Gary Mont (profile), 19 Aug 2015 @ 11:26am

Whatever NSA wants, NSA gets, and little man, NSA wants you!
Sigh.
"Anonymous Coward, Aug 18th, 2015 @ 2:21pm" had it right on the money.

Matters not one iota what happens - whether the NSA gets its wrists slapped by the courts or not - the only thing that will change is the amount of tax payer's dollars being used to prevent further exposure and the ongoing, unstoppable, inevitable escalation of the process of spying on and weakening the most feared of all gangs - We The People - using more tax payer's dollars.

After all, in war, one must know what the enemy is up to all the times, to whatever extent is possible, regardless of the expense to tax payers.

And We The People are We The Enemy.

And in war, defeating the Enemy takes precedent over ALL domestic law.

What is truly unique about this war is that the We The Enemy is paying for the Munitions and Strategies that its own Government and Military is using against it and that We The Enemy is oblivious to the expense and the damage incurred by the war, because We The Enemy is completely unaware that it is under attack.

And at the rate this is escalating, We The Enemy will be defeated and conquered by its own government and military, to protect the corporations, without a single shot being fired in response.

---
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