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SCOTUS says Fourth Amendment does not apply to third parties. Smith v. Maryland - 442 U.S. 735 (1979). Third party doctrine.

magicalist 13y ago
That is most definitely incorrect. The third party doctrine is shaky judicial construction at best (see, for instance, US v Warshak for the latest example and a case many can now use to justify holding off court orders until the Supreme Court or Congress weighs in on the ECPA), it is not held universally (wiretaps being the longest existent example), and Smith v Maryland would only get you things like call metadata at best anyways. Certainly not server contents. And certainly not with an indefinite gag-order on the service provider.
- dmourati 13y ago
  The sixth circuit court of appeals can decide whatever it wants but they can in no way overturn a decision of the Supreme Court.
  - einhverfr 13y ago
    But as I noted separately, widespread collection of call detail records is not really at issue in Smith v. Maryland. Rather it sits at the intersection of Jones v. United States, United States v. Knotts, and California Bankers Association v. Shultz. If you read these (I noted them in order from most recent to oldest) and read/carefully count votes on concurring and dissenting opinions (after having read Smith v. Maryland), I think you could be pardoned for thinking the Supreme Court had said a bunch of things about this, much in conflict with a bunch of other things.
gergles 13y ago
Someone trots this horse out of the barn every time privacy issues come up. I don't give a fuck what SCOTUS said in 1979. They could have gotten it wrong. Their interpretation could disagree with a plain reading of the Constitution, or they could have based their decision on inaccurate or incomplete data. Even if neither of those things are true, times have changed; issues at hand are wildly different than would ever have been conceivable in 1979. Going "SHUT UP, SCOTUS DECIDED THIS ALREADY" does nothing for the discussion, and it comes out every single time there's an ECPA or 4th Amendment thread.
- dmourati 13y ago
  Whoa! I responded to one point in the Rackspace response I thought was a bit off-base, specifically that their general counsel thinks the fourth amendment applies to them ... "Based on our interpretation of the Fourth Amendment ". It does not. You may not give a * about what the SCOTUS decided in 1979 but the SCOTUS does, it is called legal precedent. Times may have changed, but Smith v Maryland is still controlling law. Please try to be more civil.
  - einhverfr 13y ago
    But it is still controlling law in the area of pen registers applied to single individuals, right? Knotts raises some uncertainty as to whether dragnet surveillance should be under the same rules, and at least 5 justices in Jones v. United States clearly articulated that it was different for long-term, widespread surveillance of this sort. So I am questioning as to whether Smith controls the Verizon order as it is. I am not sure a simple "yes" is possible.
- tomasien 13y ago
  Ok to be fair: that's how judicial rulings work, based on precedence. There may be (and I believe to be) far MORE precedence saying the opposite, but don't dismiss precedence's power.
  - einhverfr 13y ago
    But.... Precedence can be handled a few ways: 1. They can be narrowed. "Gathering data from all customers regarding where and where they called from and who they called is fundamentally different under the 4th Amendment than what was decided under Smith." 2. They can be expanded, "Cell site location information is no different than what a pen register collects under the Constitution." 3. They can be overruled by the Supreme Court ("We hold we were wrong when we decided Smith v. Maryland.") This is the last choice for obvious practical reasons, and it involves more scrutiny. I don't think this will cause the third party doctrine to be reconsidered as it was decided in the past (in the context of narrow investigations). I think it is far more likely that courts (from circuit courts to the Supreme Court) will merely hold that it is Constitutionally different to do this to everyone without individualized suspicion than to do it to a specific individual already under investigation, just as it would be Constitutionally different to issue a search warrant for all apartments in a high-rise apartment building than it is to issue a search warrant on an individual's home. I don't think California Bankers Association will be overruled either and if they feel compelled to differentiate, they may say that rules do not require routine disclosure of all financial records, only the few big ones.
einhverfr 13y ago
I don't think that is quite right. Smith v. Maryland did not actually merely say it does not apply there. Smith v. Maryland said that installing a pen register to to record call detail information regarding an individual under surveillance did not need a warrant because: 1. The information was willingly shared with a third party. 2. The individual relied on the sharing for many other services including being able to trace harassing phone calls, and the like, and 3. The information was not deeply revealing. The much more important case regarding 3rd Party Doctrine is California Bankers Association v. Shultz (1974), which established that there is no reasonable expectation to privacy in routine surveillance of bank records of transactions above a certain amount (set at $10k under the statute then as now). The thing is that the dissent was worried specifically about dragnet surveillance and the majority more or less swept that one under the rug. However, this is not the 1970's any more and there are reasons to think the dragnet surveillance concerns that were ignored in 1974 carry more weight today. In 1983, the Supreme Court, in United States v. Knotts included clear dicta differentiating the case of following a car with a beeper installed in something that was sold with suspicion that it would be used illegally, from the dragnet surveillance case. Rhenquist, writing for the majority, said: But the fact is that the "reality hardly suggests abuse," Zurcher v. Stanford [460 U.S. 276, 284] Daily, 436 U.S. 547, 566 (1978); if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. The court further narrowed beeper tracking in Karo v. United States to hold it was a search when law enforcement officers determined that a barrel of ether (suspected of being used in making of narcotics) was traced to someone's home. Given that even without GPS, our cell phones are effectively beepers have lead some courts to start pushing back on subpoenas for historical cell site location data. More recently, you have the 5 concurring justices in Antoine Jones v. United States, opining that long-term surveillance by virtue of time and amount of data collected may well violate the 4th Amendment even if individual pieces may not. I say "opining" rather than "ruling" because Sotomayor refused to rule on that ground, but instead chose Scalia's more narrow rule, while at the same time endorsing Alito's much broader rule. While not the "Opinion of the Court" it is still "an opinion of the majority of the court" and I think this has a certain amount of force on courts below. We must be confronted that we are at a point where Rhenquist's insistence that dragnet surveillance must be considered separately now mandates that we confront that. A clear majority on the Supreme Court seems to believe that this can violate the Constitution with the other four justices merely having declined to comment on it. I hope this clarifies both what the court said and what confusions there currently are as this area develops. No I am not a lawyer but I read Supreme Court cases for fun.

magicalist 13y ago

That is most definitely incorrect. The third party doctrine is shaky judicial construction at best (see, for instance, US v Warshak for the latest example and a case many can now use to justify holding off court orders until the Supreme Court or Congress weighs in on the ECPA), it is not held universally (wiretaps being the longest existent example), and Smith v Maryland would only get you things like call metadata at best anyways. Certainly not server contents. And certainly not with an indefinite gag-order on the service provider.

dmourati 13y ago
The sixth circuit court of appeals can decide whatever it wants but they can in no way overturn a decision of the Supreme Court.
- einhverfr 13y ago
  But as I noted separately, widespread collection of call detail records is not really at issue in Smith v. Maryland. Rather it sits at the intersection of Jones v. United States, United States v. Knotts, and California Bankers Association v. Shultz. If you read these (I noted them in order from most recent to oldest) and read/carefully count votes on concurring and dissenting opinions (after having read Smith v. Maryland), I think you could be pardoned for thinking the Supreme Court had said a bunch of things about this, much in conflict with a bunch of other things.

gergles 13y ago

Someone trots this horse out of the barn every time privacy issues come up. I don't give a fuck what SCOTUS said in 1979. They could have gotten it wrong. Their interpretation could disagree with a plain reading of the Constitution, or they could have based their decision on inaccurate or incomplete data. Even if neither of those things are true, times have changed; issues at hand are wildly different than would ever have been conceivable in 1979. Going "SHUT UP, SCOTUS DECIDED THIS ALREADY" does nothing for the discussion, and it comes out every single time there's an ECPA or 4th Amendment thread.

dmourati 13y ago
Whoa! I responded to one point in the Rackspace response I thought was a bit off-base, specifically that their general counsel thinks the fourth amendment applies to them ... "Based on our interpretation of the Fourth Amendment ". It does not. You may not give a * about what the SCOTUS decided in 1979 but the SCOTUS does, it is called legal precedent. Times may have changed, but Smith v Maryland is still controlling law. Please try to be more civil.
- einhverfr 13y ago
  But it is still controlling law in the area of pen registers applied to single individuals, right? Knotts raises some uncertainty as to whether dragnet surveillance should be under the same rules, and at least 5 justices in Jones v. United States clearly articulated that it was different for long-term, widespread surveillance of this sort. So I am questioning as to whether Smith controls the Verizon order as it is. I am not sure a simple "yes" is possible.
tomasien 13y ago
Ok to be fair: that's how judicial rulings work, based on precedence. There may be (and I believe to be) far MORE precedence saying the opposite, but don't dismiss precedence's power.
- einhverfr 13y ago
  But.... Precedence can be handled a few ways: 1. They can be narrowed. "Gathering data from all customers regarding where and where they called from and who they called is fundamentally different under the 4th Amendment than what was decided under Smith." 2. They can be expanded, "Cell site location information is no different than what a pen register collects under the Constitution." 3. They can be overruled by the Supreme Court ("We hold we were wrong when we decided Smith v. Maryland.") This is the last choice for obvious practical reasons, and it involves more scrutiny. I don't think this will cause the third party doctrine to be reconsidered as it was decided in the past (in the context of narrow investigations). I think it is far more likely that courts (from circuit courts to the Supreme Court) will merely hold that it is Constitutionally different to do this to everyone without individualized suspicion than to do it to a specific individual already under investigation, just as it would be Constitutionally different to issue a search warrant for all apartments in a high-rise apartment building than it is to issue a search warrant on an individual's home. I don't think California Bankers Association will be overruled either and if they feel compelled to differentiate, they may say that rules do not require routine disclosure of all financial records, only the few big ones.

einhverfr 13y ago

I don't think that is quite right. Smith v. Maryland did not actually merely say it does not apply there. Smith v. Maryland said that installing a pen register to to record call detail information regarding an individual under surveillance did not need a warrant because: 1. The information was willingly shared with a third party. 2. The individual relied on the sharing for many other services including being able to trace harassing phone calls, and the like, and 3. The information was not deeply revealing. The much more important case regarding 3rd Party Doctrine is California Bankers Association v. Shultz (1974), which established that there is no reasonable expectation to privacy in routine surveillance of bank records of transactions above a certain amount (set at $10k under the statute then as now). The thing is that the dissent was worried specifically about dragnet surveillance and the majority more or less swept that one under the rug. However, this is not the 1970's any more and there are reasons to think the dragnet surveillance concerns that were ignored in 1974 carry more weight today. In 1983, the Supreme Court, in United States v. Knotts included clear dicta differentiating the case of following a car with a beeper installed in something that was sold with suspicion that it would be used illegally, from the dragnet surveillance case. Rhenquist, writing for the majority, said: But the fact is that the "reality hardly suggests abuse," Zurcher v. Stanford [460 U.S. 276, 284] Daily, 436 U.S. 547, 566 (1978); if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. The court further narrowed beeper tracking in Karo v. United States to hold it was a search when law enforcement officers determined that a barrel of ether (suspected of being used in making of narcotics) was traced to someone's home. Given that even without GPS, our cell phones are effectively beepers have lead some courts to start pushing back on subpoenas for historical cell site location data. More recently, you have the 5 concurring justices in Antoine Jones v. United States, opining that long-term surveillance by virtue of time and amount of data collected may well violate the 4th Amendment even if individual pieces may not. I say "opining" rather than "ruling" because Sotomayor refused to rule on that ground, but instead chose Scalia's more narrow rule, while at the same time endorsing Alito's much broader rule. While not the "Opinion of the Court" it is still "an opinion of the majority of the court" and I think this has a certain amount of force on courts below. We must be confronted that we are at a point where Rhenquist's insistence that dragnet surveillance must be considered separately now mandates that we confront that. A clear majority on the Supreme Court seems to believe that this can violate the Constitution with the other four justices merely having declined to comment on it. I hope this clarifies both what the court said and what confusions there currently are as this area develops. No I am not a lawyer but I read Supreme Court cases for fun.