Sunday, July 13, 2014

The US Supreme Court delivers some major whup-ass

Marbux has has been following closely the adventures of Über patriot Edward Snowden and his quest to free us from dark NSA overlords.  His latest analysis of Supreme Court rulings is cause for celebration.  First that the nations highest court has stood up for individual liberty and the Constitution.  And second, that it's great to have at the ready a legal beagle expert the likes of Marbux. Thank you Paul.

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Hi, Gary,

Riley v. California, 2014 U.S. LEXIS 4497, 59-60 (U.S. June 25, 2014),
<http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

>; also at
<http://scholar.google.com/scholar_case?case=8269519941912537264>.

I suggest that you read pages 17-22, subsections 1. and 2. This is the most significant Supreme Court ruling from a civil liberty standpoint in several decades. But they got it right this time. I'd put this one above 8.6 on the Richter Scale, with utter devastation left in wide swaths of Washington, D.C. and surrounding suburbs. Undoubtedly there is a severe shortage of toilet paper in our nation's capitol.

The Riley decision has far more ramifications than searches of cellphones, which as a result of this decision now generally requires a judge-issued warrant based on particularized probable cause, absent exigent circumstances.

It's a straightforward civil libertarian's wet dream by a *unanimous* Supreme Court. The NSA's big case that all of its metadata search activities, the decades-old pen register case of Smith v. Maryland, has been construed narrowly in a way that confines it to the particular facts of its case. Any user-generated metadata in the mix, and it now requires a warrant. The so-called third-party doctrine is no longer with us in the digital age. (I called that one right; Smith would not control our privacy rights in the digital future.)

In subsection 2, they even took care of cloud computing, forcing a concession from the DoJ that a judge-issued warrant is necessary to files stored in the cloud.

And digital data of U.S. residents on computers is now for all practical purposes off-limits to law enforcement and (very likely to NSA) without a warrant or court order.

Digital data is now protected under the Fourth Amendment *because* cellphones are recognized as "minicomputers"(!!) with [i] very high data  storage capacity (defined as 16-64 GB); [ii] that commonly include nearly every private fact of a person's life, complete with history; and [iii] a complete record of a person's communications, photos, videos, contacts, etc. They came very close to saying that if it can be imagined, "there's an app for that". But closed by saying,
"Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."

This decision does not completely tie the knot to subject NSA to the same restrictions as law enforcement. But the decision is clearly worded as a building block for such a holding in a later case. Two cases are now pending appeal in the Second and D.C. Circuits Courts of Appeals involving NSA telephone metadata. In the D.C. Circuit (Klayman case), the district court had declined to follow Smith v. Maryland and held that the NSA's FISA orders were no good; that the metadata collection required a judicial warrant. In the other case (ACLU case) the district court had held the precise opposite, that Smith v. Maryland was controlling and no warrant was required. My guess is that both of those appeals courts are now in a footrace to see who can publish their opinion first, relying on this new Supreme Court opinion and tying the knot around NSA's neck.

They also signaled that cellphone geolocation data is going to be subject to the warrant requirement by quoting a bit of Justice Sotomayor's concurrence in their U.S. v. Jones decision of 2012 (involved geolocation data), although they could not squarely hold that because no geolocation data was known to be at issue in this decision.

There was a concurrence by Justice Alito, writing to say that he would not have gone so far as the rest of them did on a minor point, then closed by saying:

"In light of these developments, it would  be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.  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."

Significantly, no other justices joined in his concurrence, which I read as the rest of them saying, "we'll take care of this problem using the Fourth Amendment; Congress can do what it wants but we're taking care of this problem as a matter of constitutional law, so anything Congress does had better be more protective of privacy rights that what we say."

Perhaps most significantly, although his name is never mentioned, there is no doubt in my mind; Edward Snowden is the hero here. He created the necessary political climate by letting the Justices know that they too were being surveilled by NSA. Thankfully, the justices *all* rose to the occasion, signaling a new direction in U.S. constitutional law governing digital privacy rights (and relieving my fears that they would succumb to blackmail.)

The decision has already been followed by five district courts, with one being an epic opinion telling law enforcement precisely how many hoops they are going to have to jump through to get him to sign a warrant for the search of a cellphone. (Cluestick: it's more paperwork than anyone wants to do except in the rarest of vitally important cases, playing back all the procedures that have been developed by major corporate law firms to defend corporate computers from searches that have been implemented by the courts. So look out for cops asking
for consent to search your cellphone. Tell them that you object to any search of your cellphone; don't wait for them to ask.)

The decision was passed down on June 25. I apologize for not finding the time to read it until tonight. By now, they should be past the panic point at NSA and DoJ and moving on toward acceptance that a lot of their present intelligence and law enforcement practices are on the way out the door. Expect legislation in Congress very soon *after* the fall election.

This is the greatest defeat that America's Dark Government has yet encountered. The Supreme Court has just informed all judges in the U.S. that they are civil libertarians when it comes to government trespass upon Americans' digital privacy.

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