The historic decision handed down by D.C. federal judge Richard Leon last
week that found the NSA's bulk collection of phone records likely violated the
Fourth Amendment is a
crucial first step towards protecting digital privacy from suspicionless
government searches. But the importance of the decision extends beyond the NSA's
surveillance programs. Judge Leon made two important findings on how the Fourth
Amendment right to be free from unreasonable searches should apply at a time
when technology can make invasive surveillance -- once considered the stuff of
science fiction -- a part of every day life.
The Increasing
Irrelevancy of Smith v. Maryland
Critically, Judge Leon's
opinion recognized that relying on the Supreme Court's 1979 decision in Smith v. Maryland to look at new forms of electronic
surveillance was foolish. Smith ruled that a person did not have a Fourth
Amendment expectation of privacy in the phone numbers he dialed since he had
turned that information over to the phone company in order to make the call.
Since Smith was decided, courts have extended it to defeat Fourth
Amendment challenges to many forms of warrantless surveillance such as acquiring
historical cell site records, information turned over to Internet
companies like Twitter, and even customer records held by a utility. So when defending the NSA's surveillance, the
government naturally argued that Smith controlled and no warrant was
needed to access the phone records.
As technology has
advanced, however, courts have become leery of relying on Smith to
justify endless amounts of electronic surveillance. In 2010, the Sixth Circuit
Court of Appeals ruled in United States v. Warshak that people have an
expectation of privacy in their email even though the messages are stored on a
service provider's server. In 2012, Supreme Court Justice Sonia Sotomayor noted
in her concurring opinion in United States v. Jones that the doctrine was "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."
Earlier this year, the New Jersey Supreme Court ruled under its state constitution that police needed a search
warrant to obtain cell site records since the expectation of privacy in a
person's location is not extinguished merely because a cell phone company has
the cell site records.
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