Friday, June 27, 2014

What the Unanimous Decision Protecting Cell Phone Privacy Can Foretell About Potential NSA Surveillance Litigation

This article first appeared on The Epoch Times    


     Civil libertarians and privacy activists alike have cheered the unanimous decision by the Supreme Court on Wednesday limiting cell phone searches by law enforcement officials.  In Riley v. California (the Court heard another case with Riley during oral arguments and included that case in Wednesday's ruling though the other case, United States v. Wurie, involved a more primitive "flip phone," not a smart phone like that in Riley), the Court ruled that law enforcement officers must get a warrant before searching the electronic contents of a cell phone after an arrest is made.  Typically, police officers can search an arrestee's person after an arrest is made to ensure the individual does not possess anything that may cause immediate harm to the officers or anyone else.  The question the Court sought to answer was does this "warrantless" search extend to the data on a cell phone?

     Given the surprising unanimity of the Court this week, it is fair to speculate about potential NSA litigation and its constitutionality.  Justices Scalia and Ginsburg at an event hosted by the National Press Club in Washington during the Spring admitted that the Court will eventually have to decide on the NSA's constitutionality, though both justices shied away from taking a position on the matter.  So, does the Court's decision in Riley act as a bellwether for NSA litigation?    Yes and no.  Despite Fourth Amendment concerns in both the Riley case and NSA surveillance, the Court relied on different precedent than current NSA litigation.  However, Chief Justice Roberts did mention a keystone precedent contradictorily relied upon by district judges in NSA surveillance rulings only to dismiss the government's argument in Riley.  In the case, Smith v. Maryland, police used a pen register to determine the calls made by a suspect.  Chief Justice Roberts dismissed the government's reliance on Smith as an excuse to search an arrestee's cell phone because, "The Court in that case, however, concluded that the use of a pen register was not a 'search' at all under the Fourth Amendment...There is no dispute here that the officers engaged in a search of Wurie’s cell phone."

     Despite relying on different precedent, there are pieces one can take from the Riley decision that can, at least, be theoretically applied to NSA litigation.  The Fourth Amendment protects against unreasonable searches and seizures by the government.  When the courts examine Fourth Amendment cases, they must determine what a reasonable search is.  A search is not considered a Fourth Amendment search unless it invades a reasonable expectation of privacy - otherwise a warrant is required.  Chief Justice Roberts placed strong importance on search warrants as he wrote, "Such a warrant ensures that the inferences to support a search are 'drawn by a neutral and detached magistrate' instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

     Chief Justice Roberts appeared to begin to outline a very similar argument against government intrusion put forth by individuals such as Edward Snowden.  Chief Justice Roberts wrote:
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible....Third, the data on a phone can date back to the purchase of the phone, or even earlier...An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been.
     Justice Alito authored a concurring opinion in which he, in effect, offered limitations to the judicial branch on matters of surveillance.  According to Justice Alito:
...electronic surveillance has been governed primarily, not by decisions of this Court, but by the statute [Omnibus Crime Control and Safe Streets Act of 1968], which authorizes but imposes detailed restrictions on electronic surveillance...At the same time, because of the role that these devices have come to play in contemporary life, searching their contents implicates very sensitive privacy interests that this Court is poorly positioned to understand and evaluate...Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.
     In a coincidentally timely ruling by a district judge in Oregon on Tuesday (the day before the Riley decision), a controversial NSA practice was upheld.  Section 702 of the Foreign Intelligence Surveillance Act or FISA pertains to surveillance collected of non-Americans by the NSA.  Josh Gerstein of POLITICO wrote of the district court decision, "The judge also found that the type of surveillance at the heart of the dispute — capturing of foreigners' Internet traffic through U.S.-based services and switches — was lawful and could be used against Mohamud [the petitioner] even though the process does not involve individualized warrants."  In relation to Alito's assertion seeming to limit the judiciary's role in his concurring opinion in Riley, the district judge in Oregon wrote:
Defendant claims § 702 procedures reduce the role of the judge to consulting with the Executive Branch with no case or controversy involving an adversary. He contends the FISC [Foreign Intelligence Surveillance Court] does not approve or disapprove proposals for § 702 surveillance but instead has a role in designing them. Defendant characterizes the FISC’s role as providing a non-judicial advisory opinion, and he argues this violates the fundamental separation of powers function of the Warrant Clause...The Supreme Court has approved numerous congressional delegations of power which did not upset the balance of power established in the Constitution. 
     The district judge noted that Congress does have the power to delegate non-judicial authority to the judicial branch if it so chooses to, which in some ways, may expand judicial power allowing courts to act as legislators.  "'[C]onsistent with the separation of powers, Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary,'" wrote the district judge.  In addition, addressing the issue of warrants related to Section 702 and the separation of powers issue, the district judge went on the write, "Although the FISC is not reviewing a warrant application under § 702, the FISC review of § 702 surveillance submissions provides prior review by a neutral and detached magistrate. This strengthens, not undermines, Fourth Amendment rights."

     So far, two federal district court judges have upheld the bulk collection of metadata involved in the NSA's domestic surveillance programs while one federal district judge has struck the practice down.  This week, the Oregon federal district judge upheld additional surveillance practices by the NSA and noted the NSA did not have to inform the defendant of their surveillance collection on him.  The Riley case provides a narrow view in foretelling how the Supreme Court may rule in NSA surveillance, however, as stated above, the Riley case is sufficiently different.  Though, it is telling that, 1) the Court ruled unanimously for cell phone privacy protection and, 2) Justice Alito alluded to a potential limit to judicial authority on the matter.  If there is a circuit split in the lower courts, the Supreme Court will most likely have to take this issue of NSA surveillance up so as to provide uniformity.

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