Top US Surveillance Lawyer Argues That New Technology Makes The 4th Amendment Outdated

from the wanna-try-that-again,-bob? dept

Thu, Dec 22nd 2016 10:46am — Mike Masnick

Reuters has an interesting piece looking at how many experts are concerned that mass surveillance efforts by the federal government are making a mockery of the 4th Amendment. The focus of the article is on the scan of all Yahoo email that was revealed back in October, but it certainly touches on other programs as well. The concern is easily summarized by Orin Kerr:

"A lot of it is unrecognizable from a Fourth Amendment perspective," said Orin Kerr, a former federal prosecutor and Georgetown University Law School expert on surveillance. "It's not where the traditional Fourth Amendment law is."

But, have no fear, the General Counsel of the Office of the Director of National Intelligence, Robert Litt, says there's a reason for that, and it's all technology's fault. We've covered Litt and his somewhat nutty views on the 4th Amendment and surveillance in the past, so the following isn't new. But Litt's main defense of basically all of the NSA's various abuses and mocking of the 4th Amendment is "it's technology's fault." He's quoted twice in the article, and both times, it's all about the tech. First up, an argument that the traditional 4th Amendment doesn't apply, because technology:

"Computerized scanning of communications in the same way that your email service provider scans looking for viruses - that should not be considered a search requiring a warrant for Fourth Amendment purposes," said Litt.

Later he is mentioned as making a similar argument.

ODNI's Litt wrote in a February Yale Law Review article that the new approach was appropriate, in part because so much personal data is willingly shared by consumers with technology companies. Litt advocated for courts to evaluate "reasonableness" by looking at the entirety of the government's activity, including the degree of transparency.

Indeed, we've pointed to Litt making similar arguments many times in the past and it all comes down to "Well, people share this stuff with Facebook/Google/Yahoo, etc.," so what's the big deal?

The problem is that this argument is complete nonsense. People are making the decision to share such information with these services in exchange for the value that the service provides them. They have no such "user agreement" with the US government. In fact, the "user agreement" we have with the US government is the Constitution that has a neat clause (also known as the 4th Amendment) that such searches are not allowed. Don't like it? Too bad. Those are the rules.

Litt's comments are beyond dishonest. It's one thing to compare the fact that people willingly give information to tech platforms, but that's completely different than saying that people are then okay for everyone's communications to be bulk scanned by the intelligence agencies "just in case" -- and all done without a warrant. The fact that technology has changed doesn't change the Constitution. Litt took an oath to protect the Constitution and he seems to, instead, be focused on doing exactly the opposite: coming up with sleazy rationalizations for why he'd give his stamp of approval on blatantly unconstitutional activity.

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Filed Under: 4th amendment, mass surveillance, nsa, odni, privacy, robert litt, surveillance, virus scanning

33 Comments

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kenichi tanaka (profile), 22 Dec 2016 @ 10:52am

This is the same argument that the Justice Department has been arguing that the Constitution and the Bill of Rights don't apply to technology because the Constitution and the Bill of Rights was created before technology existed so they shouldn't have to apply for search warrants to search cell phones.
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- Anonymous Coward, 22 Dec 2016 @ 11:16am
  
  Re:
  Most laws on the books were put there before my birth, therefore they do not apply to me and I am allowed to do what ever I so please.
  
  WoooHoooooo
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- Spyder, 22 Dec 2016 @ 11:42am
  
  Re:
  Guess that means the 2nd amendment doesn't apply anymore because it was created before automatic weapons existed...
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That One Guy (profile), 22 Dec 2016 @ 10:58am

Dishonest, but fully expected. After all...

“It is difficult to get a man to understand something, when his salary depends on his not understanding it.” - Upton Sinclair

Simply replace 'salary' with 'ability to engage in mass, indiscriminate surveillance' and it's pretty easy to see why he's so insistent in attacking and undermining those pesky 'Constitutional rights'.
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- Anonymous Coward, 22 Dec 2016 @ 11:17am
  
  Re:
  But - oh boy, watch the sparks fly if you were to infringe upon his fourth amendment rights .. or any others for that matter.
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Michael, 22 Dec 2016 @ 11:03am

"Computerized scanning of communications in the same way that your email service provider scans looking for viruses - that should not be considered a search requiring a warrant for Fourth Amendment purposes,"

Why not this?

Checking your DNA against crime scenes in the same way that your doctor checks babies for genetic abnormalities - that should not be considered a search requiring a warrant for Fourth Amendment purposes.

Was there ever a day when the people in charge of our law enforcement agencies actually cared about upholding the constitution?
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- Anonymous Coward, 22 Dec 2016 @ 11:18am
  
  Re:
  doubtful
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- Anonymous Coward, 22 Dec 2016 @ 1:15pm
  
  Re:
  Well, I can only assume that back in the revolutionary war days the constitution was rather more respected what with people having just fought and died for it.
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Anonymous Coward, 22 Dec 2016 @ 11:03am

The difference is that Google, Yahoo et Al. scan email to decide what adverts to try and send people, and people have the option of addblocking, encryption, or using a difference service to avoid this scanning. With the government, the scanning is used to send men with guns to batter down your door, and they are also arguing that the people cannot use effective encryption to protect their privacy, and they cannot defend themselves from the men with guns. Further a mistake by the government will ruin someones life, or even end their life, which is why targetted searches, after showing probale cause, is built into the constitution.

It is also worth reminding the governments of the world, that all this data they are gathering only came into when the Internet became popular, and that encryption restores the balance more towards where it was when people mainly communicated by face to face conversations, and policing relied on officers having good relationships with the communities that they served.
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Anonymous Coward, 22 Dec 2016 @ 11:04am

The 4th amendment doesn't become null and void just because you have an easier time violating it.
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- I.T. Guy, 22 Dec 2016 @ 11:10am
  
  Re:
  That's going in my email signature.
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kenichi tanaka (profile), 22 Dec 2016 @ 11:15am

Finally, someone who gets it. Prosecutors, the Justice Department and law enforcement want to ignore any part of the constitution that grants anyone any rights. They would be happy if the Constitution and the Bill of Rights were simply repealed, et al.

| The 4th amendment doesn't become null and void just because you have an easier time violating it. |
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Jeremy Lyman (profile), 22 Dec 2016 @ 11:34am

Not 'what' search, but 'who' does it!

scanning of communications in the same way that your email service provider scans looking for viruses - that should not be considered a search

I'm terrified to consider what this man thinks visiting your doctor for a colonoscopy entitles him to do.
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kenichi tanaka (profile), 22 Dec 2016 @ 11:36am

Government is just fine with infringing or violating your constitutional rights. That is, until you're the one violating THEIR constitutional rights.
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- Anonymous Coward, 22 Dec 2016 @ 11:48am
  
  Re:
  The rights under the constitution bar what the government is allowed to do to the citizens, not what the citizens are allowed to do to each other.
  
  Telling me that I'm violating your 1st Amendment rights by telling you to shut up because I don't like what your saying is laughable. I am not the government or a member thereof and therefore I can tell you to shut it if I want. If I try to force you to shut your trap I may be violating other laws (assault, battery, etc) but I'm not violating the 1st.
  
  Same goes for the 4th. If I'm snooping thru your phone or email without a warrant, I may be committing theft, trespassing, or even a DMCA violation, but I'm not breaking your 4th Amendment rights. But if someone from a government agency is doing it, then damn right they better have a warrant.
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- Anonymous Coward, 22 Dec 2016 @ 12:12pm
  
  Re:
  Government has no rights... just Powers... derived by the consent of the people.
  
  If you cannot even speak to the problem correctly, why should I even take you ideas for solutions seriously?
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  - Anonymous Coward, 22 Dec 2016 @ 1:52pm
    
    Re: Re:
    Random Observation:
    
    Even with k.t.'s history of paradoxical authoritarianism taken into account, it's still necessary to note that this is the weirdest example of sock puppetry ever.
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renosablast (profile), 22 Dec 2016 @ 11:48am

Correct me if I am mistaken, but isn't this guy out of a job in less than 30 days, making anything he states totally irrelevant?
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- Anonymous Coward, 22 Dec 2016 @ 12:04pm
  
  Re:
  He might stay on as part of a Trump administration, or have an equally dishonest lawyer replace him, since it does not appear that Trump is particularly opposed to bulk surveillance. Recent reports indicate Trump at least considered appointing Carly Fiorina, a known surveillance hawk, for Director of National Intelligence.
  
  Regardless of whether Mr. Litt continues to be employed by the government after Trump takes office, his current position gives his statements considerable weight when he is quoted in the press, and will likely continue to give them weight even when the citation is "Mr. Litt, who served as counsel to the DNI during list-of-years" rather than the current citation of "Mr. Litt, counsel to the DNI". That makes his pro-surveillance rhetoric much more dangerous to civil rights than if it were said by a lawyer with no name recognition and no history of holding high office.
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DannyB (profile), 22 Dec 2016 @ 11:58am

4th Amendment doesn't protect from computer searches?

"Computerized scanning of communications in the same way that your email service provider scans looking for viruses - that should not be considered a search requiring a warrant for Fourth Amendment purposes," said Litt.

Dear Mr. Litt,

If the police send an autonomous robot to break down your door and search your home, that is not a violation of your 4th amendment rights. After all, it is a computerized search. Like searching your emails or scanning for viruses, it is much more efficient than manually searching your home. With an army of robots, searching of homes can be routinely done on a large scale. Because this is qualitatively different than abuses of your constitutional rights when done by humans, it should not be considered a violation of your rights. More importantly, in your own words, it should not require a warrant for Fourth Amendment purposes.

Sincerely,
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- Anonymous Coward, 22 Dec 2016 @ 1:51pm
  
  Re: 4th Amendment doesn't protect from computer searches?
  And, of course, you let guests into your living room all the time. So, constitutionally, there's absolutely no reason why I can't sneak into your living room at 3 AM, right? Heck, you probably won't even notice.
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Anonymous Coward, 22 Dec 2016 @ 1:05pm

It's time
It's time to expose all the personal effects and writings of Gov. employees in positions of power, to the general public. They expect our trust but deny us the opportunity to verify the basis for that trust. They are therefor suspect and deserve scrutiny much more then we the public do, for the power granted them. So Mr. Litt its time to open the doors for inspection, lets see what you have been up to.
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ItsAboutThePledge, 22 Dec 2016 @ 2:44pm

An excercise in democracy
Perhaps once a month, in Unison these members of government should be required to stand in front of citizens of the U.S. and pledge their allegiance and understanding of the constitution, then be asked by members of the public questions about the constitution, preamble and bill of rights.

If they fail to understand what they pledge themselves to, then boot them...
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- Anonymous Coward, 23 Dec 2016 @ 5:46am
  
  Re: An excercise in democracy
  They are accomplished liars, some of them are compulsive liars. They have no understanding of truth .. only outcomes and how to get others to do their dirty work for them and then cover it all up.
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Christenson, 22 Dec 2016 @ 3:14pm

Beyond Dishonest
Oh my, such excellent words!
Donald Trump is beyond dishonest, and so are all of his billionaire appointees!

Do you think maybe that applies to the whole national intelligence/law enforcement apparatus????
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- Anonymous Coward, 23 Dec 2016 @ 5:47am
  
  Re: Beyond Dishonest
  broad brushes have such crappy resolution
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nasch (profile), 22 Dec 2016 @ 3:52pm

Third Party doctrine
Isn't the Third Party doctrine the real problem here? Until we get rid of that, there's nothing stopping Facebook (or whoever else) from turning over whatever information they want to the government.
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- Anonymous Coward, 23 Dec 2016 @ 12:44am
  
  Re: Third Party doctrine
  The third party doctrine is useful when it protects someone from voluntarily turning over information to law enforcement. The distortion is that law enforcement have extended the idea so that they can demand information without bothering to get a warrant, or having any reason other than fishing. This changes the handover from being voluntary, to being compelled.
  
  Make it so that the police need a warrant before they can demand information, and they lose the ability to go on fishing expeditions.
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Anonymous Coward, 22 Dec 2016 @ 4:28pm

Once again, raising the idea of the Constitution as a contract between government and the People that permits the government to exist and retain governing powers. If one side of the contract violates the contract, is it still considered valid?
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Anonymous Coward, 22 Dec 2016 @ 4:38pm

Therefore, new technology makes the United States outdated.
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Anonymous Coward, 22 Dec 2016 @ 5:10pm

Benefit from sharing info with a company: The service is able to function

Benefit from the government snooping in on the info: Nil.
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Meow Mix, 22 Dec 2016 @ 8:17pm

In a way he's correct. But it's a double edged sword because once end-to-end encryption becomes the norm, no amount of "technology" will enable to gov't to win. So they're only temporarily able to do mass surveillance.
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- Seegras (profile), 23 Dec 2016 @ 5:50am
  
  Re:
  It's not a double edged sword because of encryption, but because everything you do to foster surveillance will cut you, and everyone else, by jeopardizing security. Encryption is actually the scabbard.
  
  https://seegras.discordia.ch/Blog/the-biggest-threat-to-cyber-security-is-surveillance/
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