The Importance Of Justice Sotomayor's Jones Ruling In Laying The Groundwork To Restore The 4th Amendment

from the kudos dept

Adam Sewer, over at MSNBC, recently had a great article discussing how a US Supreme Court Justice Sonia Sotomayor's concurrence in the US v. Jones case has become incredibly important in setting the framework for hopefully restoring the 4th Amendment. When the original ruling came out, there was some confusion over how significant it would be. While the court agreed that the use of GPS in that case was illegal, there were varying opinions as to why. While we initially expected that a different concurring opinion (by Alito, Ginsburg, Breyer and Kagan) would become more important, over time, people have realized that Sotomayor's concurrence clearly lays out why technological change should make us rethink past precedents concerning the collection of information. It was Sotomayor who rightly noted that there's a difference between collecting a bit of info on one person, and collecting pretty much all info on everyone. And it was Sotomayor's concurrence that is being used repeatedly to push for a rethinking of these issues:

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

While it is just a concurrence, rather than the official law of the land, the reasoning is clear and clearly is resonating, which is why it is being raised repeatedly by those looking at these new issues. Its wider inlfuence will likely boomerang back into the Supreme Court before long, where it can have a real impact towards bringing back a respect for the 4th Amendment.

“Justice Sotomayor’s concurrence in Jones was the first time a Supreme Court justice seemed to acknowledge and speak directly to that new reality,” said Catherine Crump of the ACLU, who helped write the group’s Supreme Court brief in Jones. “To have a Supreme Court Justice acknowledge that there is a difference between a few discrete pieces of information about someone and the complete records you can now gather in the era of big data made us feel like we were on the right path.”

Winkler compared Sotomayor’s concurrence in Jones to Justice Louis Brandeis’ concurrence in Whitney v. California, whose expansive interpretation of the First Amendment we now take for granted. “I think that Sotomayor’s concurrence is going to be seen much the same way,” Winkler said.

The article also quotes famed constitutional scholar Laurence Tribe (who also taught President Obama), who had complained when Sotomayor was first nominated that she is "not nearly as smart as she seems to think she is." However, now that she's been on the court for a while, Tribe has completely changed his mind and admits that he's wrong. The ruling like the one in the Jones case is part of the reason why.

“I greatly underestimated how powerful a jurist Justice Sotomayor would be. From the start, she has been an enormously impressive justice, making a major impact in cases like Jones, among many others,” Tribe wrote in an email. “I now regard her as a major force on the Court – someone who is likely to make a historic contribution – and I have no doubt that I was totally wrong in my initial expressions of doubt.”

A powerful concurrence is a good start. Now we need the rest of the Supreme Court, Congress and the executive branch to follow along...

Filed Under: 4th amendment, privacy, sonia sotomayor, supreme court, technology, third party doctrine, us v. jones

Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters

from the let-them-know-it-was-correct dept

We've been covering the various lawsuits by broadcasters against Aereo for some time now. So far, Aereo has won three times to a big fat zero by the broadcasters. The broadcasters appealed to the Supreme Court. Ordinarily, in a situation like this, it's pretty standard for the other side to argue to the Supreme Court why it should not hear the case, because they don't want to mess with the lower court rulings that went in their favor. But... in a somewhat bold move that suggests a fair bit of confidence in their position, Aereo has actually said it agrees that the Supreme Court should hear the case now -- risking the possibility of the Supreme Court overturning the good appeals court ruling in the 2nd circuit.

While it's an unusual move, there are a few good reasons for it. The first, as Aereo notes in its brief, is the broadcasters have made it abundantly clear that they're going to try to sue Aereo in any jurisdiction it launches service in, hoping to both bleed the company dry of funds and, the broadcasters hope, to find some court somewhere that will rule against Aereo. Getting the case to the Supreme Court now could effectively kill that strategy for the broadcasters. Second, and somewhat more troubling, is that the broadcasters have also been suing wacky billionaire Alki David who claims to have built a similar system as Aereo, though there are significant doubts about that in reality. In the cases against Alki David's company -- whose name has changed from FilmOn (originally) to AereoKiller (subtle) to BarryDriller (aimed at Aereo investor Barry Diller) and then back to FilmOn again -- the broadcasters have been winning. Aereo built its business carefully, with an aim towards following the law very specifically, and has a legal team that understands the issues. David? His response to yet another legal loss was to tell the court to kiss his ass.

Even if it were true that they were doing the same thing, the fact that David doesn't seem to know how to actually present a decent case is simply bad for everyone, because, even if they try not to, judges can't help but be influenced by such activities. Getting the Supreme Court to take on this case now rather than waiting until there's some sort of circuit split between an Aereo case and a FilmOn case hopefully leaves David's ridiculous antics out of the fight, and lets everyone focus on the core copyright issues at hand.

There is, of course, no guarantee that the Supreme Court grants cert to hear the case. But having both parties asking for the same thing is somewhat unusual, and given the issues at play, it makes it somewhat more likely that they'll be willing to check it out.

Filed Under: supreme court
Companies: aereo

Supreme Court To Hear Key Case On Software Patents That Appeals Court Couldn't Figure Out

from the time-to-clear-up-the-mess dept

Earlier today, the Supreme Court agreed to hear the appeal on the Alice vs. CLS Bank case which is yet another case that looks at the patentability of software. The ruling in the Federal Circuit appeals court (CAFC) was one of the biggest judicial messes you'll ever see. The ruling was 135 pages of different judges all disagreeing with each other. In all of that there is only one single paragraph that the court agreed on -- one which rejected the patent as not being patentable subject matter. But as for why they did that? No one could agree. Chief judge Randall Rader has called that decision "the greater failure of my judicial career."

Now the Supreme Court can fix it, and hopefully can establish clear rules -- potentially ones that wipe out software patents entirely, though I'm not convinced they'll go that far. To some extent, the Supreme Court has itself to blame. Back in 2010, in the Bilski case, the Supreme Court had the chance to set clear rules of the road concerning software patents, but instead chose to punt, ruling incredibly narrowly (basically saying "the test the courts use isn't the only test, but we won't tell you what other tests to use"). Because of that, no one knows what tests should be applied to see if software (and business methods) are patentable, and that leads to complete messes like the CAFC ruling in the Alice v. CLS case.

At the very least, one hopes that the Supreme Court will clear things up, rather than punting again by ruling very narrowly. Part of the role of the Supreme Court is to set the standards for the lower courts to follow, based on the Constitution (and the law). Instead, lately, it seems to look to rule very narrowly and to let these issues keep bouncing around without any clarity at all. Hopefully, the Supreme Court will recognize that its own earlier precedents should have effectively made software unpatentable, but even if it won't go that far, a clear rule would be a step forward.

Filed Under: cafc, patents, software patents, supreme court
Companies: alice corp., cls bank

Judge Halts Sentencing After Feds Admit They Failed To Reveal Use Of NSA Data

from the this-is-why-you-reveal-this-stuff-up-front dept

We've been following the crazy story of the Solicitor General of the US, Donald Verrilli, making blatantly false statements to the Supreme Court concerning how the feds would have to reveal to defendants that some of the evidence used against them came from secretive NSA data collection methods. In Verrilli's defense, it is now apparent that lawyers for the intelligence community flat out lied to him, and he is reasonably angry about that -- leading to the DOJ to officially change its policy to now be consistent with what Verrilli told the Court: that if NSA data is used against someone, that fact will come out during the process, and the defendant can challenge it. Along with this, the feds have started selectively alerting some lawyers that some NSA data was used on their clients.

In one such case, of "would-be bomber" Mohamed Osman Mohamud, who was accused of wanting to bomb a Portland Christmas tree lighting ceremony, this news has put his sentencing on hold. The details of Mohamud's case suggest it was yet another case of the FBI stopping a plot of their own making, as the entire "plot" was created with undercover FBI agents. But there are also some questions about how the FBI first targeted Mohamud. Now, it appears that it may have been due to NSA activities. Mohamud had been found guilty earlier this year, and was scheduled to be sentenced in just a few weeks, but the judge -- realizing that the NSA revelations throw a big wrench into all of this -- has agreed to postpone indefinitely the sentencing. I imagine there will be a flurry of legal documents as his lawyers use this to try to dump the original trial results.

Either way, expect a lot more like this to happen as the DOJ finally starts to come clean.

Filed Under: doj, donal verrilli, fbi, fbi's plots, mohamed osman mohamud, nsa, supreme court, surveillance

US Gov't Appears To Have Misled The Supreme Court About How The NSA Spied On Americans

from the whoa dept

We've written a few times now about the fact that US Solicitor General Donald Verrilli pretty clearly made false statements to the Supreme Court in a key case concerning NSA warrantless wiretapping. The case, Clapper v. Amnesty International, mainly focused on who had standing to challenge warrantless wiretaps performed by the NSA. The government argued that since there was no evidence that Amnesty International was spied on, it had no standing. The false statement involved the claim that the government would have to inform defendants in cases where warrantless wiretaps were used that that's how the info was gathered. Except the government didn't do that.

It turns out that might not have been the only misrepresentation from Verrilli -- and this next one may be even bigger, involving misleading the Supreme Court on a loophole that allowed the NSA to spy on tens of thousands of Americans.

As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before.

But Senators Mark Udall, Ron Wyden and Martin Heinrich have sent Verrilli a letter urging him to "set the record straight" with the Supreme Court... but not just on that issue of disclosing. Rather they highlight somewhere else they think he did not paint the correct picture:

In Clapper v. Amnesty, the majority opinion characterizes as “highly speculative” the plaintiffs’ fear that “the Government will decide to target the communications of non-U.S. persons with whom they communicate,” and states that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals – namely their foreign contacts.” These and other statements in the opinion indicate the Court’s view that the only way the plaintiffs’ communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.

Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ‘about’ collection under the FAA is now public, although not widely understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.

This form of collection allows the government – through the “upstream” collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collected – even though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons “reasonably believed to be located outside the United States,” and targeting procedures were intended to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” the FISA Court in its October 2011 opinion called this expanded FAA collection a circumvention of the “spirit” of the law and a “cause of concern for the Court.”

Just to hammer this point home, they're saying that despite everyone, including the Supreme Court, clearly reading the law to say that Section 702 of the FAA is supposed to be limited to surveillance on foreign targets, it actually also allows surveillance on communications about foreign targets -- and that likely includes tons of communications of Americans. And these communications were believed not to be available under this program, including by the Supreme Court.

The Senators ask Verrilli if he clearly informed the Supreme Court of this at any point, and if not, suggest that he correct the record.

We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case — both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act — would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.

This seems rather important -- and a point that not many reporters have covered (which also might explain why the Senators are raising it, and noting that the revelation "is not widely understood.") This is a way of alerting people to the simple fact that the NSA has interpreted Section 702 to mean it can collect any communication deemed to be "about" a target, even if the communication is not from or to that target.

Filed Under: donald verrilli, faa, fisa, fisa amendments act, james clapper, mark udall, martin heinrich, nsa, ron wyden, section 702, solicitor general, supreme court, target
Companies: amnesty international

Supreme Court Refuses To Hear Case About NSA Surveillance That Attempted To Jump The Line

from the wait-your-turn dept

This isn't a huge surprise, but the Supreme Court has declined (without comment) to hear a case brought by EPIC concerning the NSA's bulk metadata collection program. This isn't a huge surprise -- as EPIC was clearly trying to jump the line to get the case heard directly by the Supreme Court, rather than first going through the district and appeals courts. This was a massive longshot, at best. It doesn't mean that the Supreme Court won't eventually take on the issue, but it's likely to be many years before it has a chance to directly address the question of whether or not the NSA is actually allowed to collect metadata on all phone calls under the FISA Court's questionable interpretation of Section 215 of the PATRIOT Act.

Given that the Roberts Supreme Court seems to go out of its way to avoid actually answering the difficult questions, preferring to write very narrowly focused decisions that leave people with more questions than answers, it seems like even when the program makes it up to the Supreme Court, it may take quite some time to figure out what it actually means for these surveillance programs.

All that said, the one area where I could see the Supreme Court potentially taking a more immediate interest is in the somewhat related question of who has standing to challenge this surveillance, since in the last such case, the US government lied to the Supreme Court and the Justices relied on that very lie in making their decision. Given that, one would hope that the Supreme Court might take a more active immediate interest in the issue, but, again, it'll likely wait for other cases to boil up. It's not like the privacy and 4th Amendment rights of every single person in the US are at stake. Oh, wait...

Filed Under: bulk data, nsa, nsa surveillance, patriot act, section 215, supreme court
Companies: epic

Appeals Court Says Feds Need To Get A Warrant To Attach GPS Device On A Car

from the this-is-good dept

One of the more annoying things about the current Supreme Court is how it always seems to figure out ways to avoid actually tackling the key questions that people are asking. For example in the Jones v. US case, the court very carefully tiptoed around actually answering the question of whether or not law enforcement putting a GPS on a car required a warrant. Some of the Justices suggested it should, but it wasn't part of the official ruling. So, it gets left out there in the ether for people to try in other lawsuits. And now an appeals court has ruled on the issue, saying that a warrantless GPS tracking of someone's car is a 4th Amendment violation. The court goes into a full exploration of the 4th amendment and how it applies here. It's well worth reading (starting around page 18). Law enforcement's argument is in for a tough time:

We therefore begin with the following observation: under the physical intrusion theory of the Fourth Amendment, the police actions in this case — i.e., physical entry upon and occupation of an individual‟s house or effects for purposes of ongoing GPS tracking — are highly disconcerting.

It then goes through a thorough look at each of the government's arguments for why a warrantless GPS search could be deemed "reasonable" and finds each one wanting. The main one is that the government insists that if there's a "reasonable suspicion," they should be able to do a warrantless search. The court's not buying it.

While the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect. We are hard pressed to say, therefore, that the police can — without warrant or probable cause — embark on a lengthy program of remote electronic surveillance that requires almost no law enforcement resources and physically intrudes upon an ordinary citizen‟s private property.

This is in the third circuit and I'd imagine that there will be an appeal to the Supreme Court. Given the Court's avoiding the question in the Jones case, hopefully it will take it and support the argument that the 4th Amendment does apply to GPS searches and a lack of a warrant is unconstitutional. Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant. Is it really that difficult?

Filed Under: 3rd circuit, 4th amendment, gps, reasonable, search, supreme court, warrantless

Court Won't Rehear Reporter James Risen's Appeal On Being Compelled To Testify About Sources

from the on-to-the-supreme-court dept

In July, we wrote about a worrisome ruling by an appeals court, that said that NYTimes reporter James Risen could be compelled to give up his sources by putting him on the witness stand in a whistleblower case. Risen is, quite reasonably, arguing that Constitutional protections for a free press should prevent him from having to reveal sources. The appeals court panel had ruled two-to-one against Risen and in favor of the government. Risen asked the entire appeals court to rehear the appeal (a so-called "en banc" rehearing), but the Fourth Circuit appeals court has rejected the request by an overwhelming majority: 13-to-1. The one vote in favor of rehearing the appeal was, not surprisingly, the sole judge who sided with Risen in the original ruling, Roger Gregory. The case isn't over yet, as Risen will almost certainly ask the Supreme Court to hear the appeal. And, given the subject area, one hopes that the Supreme Court will agree to take the case. But, for now, we're left in a world where the government continues to have way too much power over a supposedly free press in their ongoing war against whistleblowers.

Filed Under: appeals court, first amendment, free press, james risen, journalists, supreme court

FISA Court Tries, Once Again, To Justify Allowing Bulk Collection Of Data On All Your Phone Calls

from the let's-try-this-again dept

Last week, the FISA Court (FISC) renewed yet again (as it has every few months for over 7 years) the ability of the government to demand data on every phone call from American telcos. Last month, the FISC (for the first time) published its rationale for allowing the collection -- one that many experts found extremely lacking. Not only did the court incorrectly state that members of Congress were fully aware of the details of the program when they renewed it, but it also made up some of its own rules and ignored some of the Supreme Court's statements on such forms of data collection.

Today, the court has declassified the new justification that was written up for this latest round of rubber-stamping, and it's written by a different judge than before. This time, it's Judge Mary McLaughlin, who notes that this is the first time she's had to review such an application, but for the most part she "agrees with and adopts" the reasoning used back in July by Judge Eagan to justify the collection. However, she also attempts to go into a little more detail, perhaps in response to the public criticism to Eagan's reasoning. Eagan's ruling stated the following:

In light of the importance of the national security programs that were set to expire, the Executive Branch and relevant congressional committees worked together to ensure that each Member of Congress knew or had the opportunity to know how Section 215 was being implemented under this Court's Documentation and personnel were also made available to afford each Member full knowledge of the scope of the implementation of Section 215 and of the underlying legal interpretation.

Unfortunately, as many have pointed out (and the White House has admitted) this is not true. Rep. Mike Rogers did not share the details with members of the House, despite the White House recommending strongly that he do so. While he did set up "briefings" with the NSA, they were clearly designed to keep Representatives in the dark. Among the many tricks that Rogers pulled, was sending announcements of the briefings to what's considered the "spam folder" of representatives, holding them at very inconvenient times (when most Reps. were out of town) and then leaving it up to the Reps. to guess what they should be asking about.

In this latest ruling, McLaughlin doesn't make the claim as directly as Eagan did, but still suggests that every member of Congress "had the opportunity to learn about the scope of the metadata collection and this Court's interpretation of Section 215." Thus, because they reauthorized it (thanks mostly due to fear-mongering by the heads of the Intelligence Committees), it must mean that Congress approved of the interpretation of the law. That seems specious, at best. It's increasingly clear that the heads of the intelligence committees actively sought to mislead others in Congress over these programs. Pretending that they were well informed is simply fiction. The very fact that so many in Congress (including some on the Intelligence Committee) have noted that they were kept in the dark about many important details, Judge McLaughlin is playing games here that don't reflect reality.

She also attempts to deal with the fact that in the Jones GPS case, the Supreme Court indicated that when there's bulk collection of data, it's possible to cross over from not being a 4th Amendment violation, to being one. In other rulings, the suggestion had been that if a single data point wasn't a 4th Amendment violation, then the bulk collection couldn't be either -- even though Justice Alito's opinion in Jones strongly argued otherwise. McLaughlin tries to hand-wave this away:

The Supreme Court's more recent decision in United States v. Jones... does not point to a different result here. Jones involved the acquisition of a different type of information through different means.

More specifically, she argues that because Jones was about monitoring and this case is about collection it's different. That also seems questionable, as Alito himself made the comparison to wiretapping. To argue that they're not analogous seems like it's ignoring what was said. McLaughlin does, legitimately, point out that Justice Sotomayor's opinion suggested that the whole notion of the 3rd party doctrine (saying there's no 4th Amendment protection for information given to a third party) should be revisited, but that the Court declined to do so in Jones.

Hopefully, this is setting up a situation in which the Supreme Court will no longer be able to punt the issue, as it did in Jones, and we can get some renewed respect for the 4th Amendment, especially in cases where bulk data is collected and accessed by government officials.

Filed Under: 3rd party doctrine, bulk collection, fisa, fisa court, fisc, metadata, patriot act, section 215, supreme court

Supreme Court Justices Can't Figure Out Email, Completely Mystified By Social Media

from the and-yet-they-make-judgments-on-this-stuff? dept

There are legitimate reasons to avoid email -- such as Ladar Levison of Lavabit explaining his concerns about privacy. And, certainly, you can understand why some more elderly people have avoided email, though if my late grandmother kept up her emailing well past her 90th birthday, it seems like almost anyone should be able to pick it up. But, it's somewhat disturbing to find out that nearly every Supreme Court Justice hasn't bothered to figure out email yet because they haven't "gotten to" email.

"The justices are not necessarily the most technologically sophisticated people," she said, adding that while clerks email one another, "The court hasn't really 'gotten to' email."

Kagan, at age 53 the youngest and most recently appointed justice, said communication among the justices is the same as when she clerked for the late Thurgood Marshall in 1987.

Justice write memos printed out on paper that looks like it came from the 19th century, she said. The memos are then walked around the building by someone called a "chambers aide."

She also noted that Facebook, Twitter and similar services are "a challenge for us."

Though, she does note that when they had to rule on California's law restricting violent video games, a few of the Justices did try some of the games in question, though "It was kind of hilarious."

Sure, old people playing video games, ha ha. Except, as Will Oremus points out, it's really not that funny at all when you realize these nine people are deciding a ton of cases that have a huge impact on the future of technology, innovation and communication. For them not to understand the underlying technologies, how they're used and what they mean is a serious concern:

It does sound quaint and endearing, until you remember that these are the people charged with interpreting the law of the land on issues like online privacy and digital surveillance. No wonder they decided earlier this year that the government spying on people’s emails without a warrant is no big deal. Bet they’d have some strong opinions if the NSA started eavesdropping on people’s chambers aides, though.

It's easy for some people to say that you don't have to understand social networking to rule on such cases, but it's hard to support the more you think about it. These tools are key to open and free communications these days. They are the embodiment of what the First Amendment was supposed to be about -- a free marketplace of ideas. Not understanding how they work and how they're used can really skew how they're viewed via the legal prism. And that should be worrisome. We've already seen in a variety of copyright cases before the Supreme Court that they seem to have a near total blind spot when it comes to how copyright interferes with free expression, in part because they still view it through the antiquated filter of "professional" publishers being the ones doing the speaking, rather than the general public using tools to communicate, converse, debate and express ideas.

Filed Under: email, law, social media, supreme court, technology