{"id":23428,"date":"2013-12-22T11:16:42","date_gmt":"2013-12-22T16:16:42","guid":{"rendered":"http:\/\/quotulatiousness.ca\/blog\/?p=23428"},"modified":"2013-12-22T11:16:42","modified_gmt":"2013-12-22T16:16:42","slug":"does-the-us-constitution-actually-provide-any-protection-against-surveillance","status":"publish","type":"post","link":"https:\/\/quotulatiousness.ca\/blog\/2013\/12\/22\/does-the-us-constitution-actually-provide-any-protection-against-surveillance\/","title":{"rendered":"Does the US Constitution actually provide any protection against surveillance?"},"content":{"rendered":"

Julian Sanchez<\/a> talks about dismantling the surveillance state:<\/p>\n

On Tuesday, Judge Richard Leon held<\/a> that the National Security Agency\u2019s controversial phone records program likely violates the Fourth Amendment\u2019s guarantee against \u201cunreasonable searches and seizures.\u201d But when the inevitable appeal comes, far more than a single surveillance program will be at stake. Whether far higher courts are prepared to embrace Leon\u2019s logic could determine if Americans enjoy any<\/em> meaningful constitutional protection against government monitoring in the information age.<\/p>\n

The NSA program \u2014 a massive database that logs, and stores for five years, the time, date, duration, and number dialed for nearly every call placed in the United States \u2014 is based on Section 215 of the Patriot Act, which authorizes the government to obtain any records it reasonably believes are \u201crelevant\u201d to a foreign intelligence investigation. But that authority itself depends on the so-called \u201cthird party doctrine,\u201d which says that business records held by a \u201cthird party\u201d like a phone company aren\u2019t protected by the Fourth Amendment.<\/p>\n

If not for the third party doctrine, \u201crelevance\u201d would not be enough: The government would have to satisfy the Fourth Amendment\u2019s far stricter demand to show \u201cprobable cause\u201d that records it had \u201cparticularly described\u201d would yield evidence of wrongdoing. Under Fourth Amendment standards, a program that involved vacuuming up billions of records in order to fish through them later for suspicious calls would be out of the question \u2014 the kind of unlimited \u201cgeneral warrant\u201d the framers of the Constitution were especially concerned to prohibit.<\/p>\n

The roots of this cramped reading stretch back to 1979, when the Supreme Court unwittingly dealt a profound blow to American privacy<\/a> in the case of Smith v. Maryland<\/em>. With the cooperation of the phone company, police had traced a series of obscene phone calls from Michael Lee Smith to a woman he had earlier robbed. Because they had not first obtained a warrant from a judge, Smith argued that the police had conducted an illegal search, akin to a wiretap.<\/p>\n

The Court disagreed: Because Smith should have known, based on the itemized list of calls on his monthly bill, that the phone company kept business records of the numbers he dialed, he had voluntarily abandoned his \u201creasonable expectation of privacy\u201d in that information \u2014 and with it, the protection of the Constitution.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Julian Sanchez talks about dismantling the surveillance state: On Tuesday, Judge Richard Leon held that the National Security Agency\u2019s controversial phone records program likely violates the Fourth Amendment\u2019s guarantee against \u201cunreasonable searches and seizures.\u201d But when the inevitable appeal comes, far more than a single surveillance program will be at stake. Whether far higher courts […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[84,9,10,15,13],"tags":[715,913,154,911],"class_list":["post-23428","post","type-post","status-publish","format-standard","hentry","category-government","category-law","category-liberty","category-technology","category-usa","tag-constitution","tag-nsa","tag-privacy","tag-surveillance"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p2hpV6-65S","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/23428","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/comments?post=23428"}],"version-history":[{"count":2,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/23428\/revisions"}],"predecessor-version":[{"id":23430,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/23428\/revisions\/23430"}],"wp:attachment":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/media?parent=23428"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/categories?post=23428"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/tags?post=23428"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}