Jun, 13 2013

Disclaimer:  I wrote this article to educate the public on data collection and surveillance pursuant to Supreme Court precedent and the Foreign Intelligence Surveillance Act.  I am not condoning the actions of the government, nor am I stating that the government should not engage in intelligence surveillance.  This article gets somewhat technical. I’ve tried to express as many things as I can in layman’s terms, but I’ve also tried to track the language of the laws and the Supreme Court to avoid injecting bias or opinion.  

Further, this article does not represent the views of Phandroid.com or Neverstill Media, LLC.  Lastly, other than the “How I Feel About It” and “Devil’s Advocate” (as written by Chris Michaels) sections, this article does not represent my views or opinions as a citizen, attorney or writer, but those of the Supreme Court of the United States and the laws of this country.

There’s been a lot of talk about government surveillance by the NSA, pursuant to the Patriot Act, and whether it’s legal.  The ACLU is filing suit against the government concerning the FISA Court warrant allowing the FBI to obtain all user data from Verizon customers, and it is surely one of soon-to-be many lawsuits to come from this leak.  Because there is a lot of confusion about what’s actually legal, what the government can and can’t do and what is or is not a “search” under the 4th Amendment, I wanted to provide some information in order to educate people.

the constitution

Understanding the 4th Amendment

First, let’s cover some 4th Amendment basics.  How does a court judge know when the 4th Amendment has been violated?  The legal standard is:  whether the person had a reasonable expectation of privacy.  See Katz v. United States, 389 U.S. 347 (1967).  Seems simple right?  It’s anything but simple as you’ll see below.

But first, let’s get something straight, “reasonable expectation of privacy” is an objective standard.  “How can this be objective,” you ask?  Because the “reasonable” part is what society deems reasonable (or more aptly, what the courts have said is reasonable based on a hypothetical reasonable person).  The “reasonability” in question is not your reasonable expectation of privacy, but that of what society says should be reasonable.

We’re going to start with pen register data.  Pursuant to Smith v. Maryland, 442 U.S. 735 (1979), the government does not need to obtain a warrant to gather pen register data, as this data is not a “search” within the 4th Amendment.  A pen register is:

a device or process which records or decodes routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.

18 U.S.C. § 3127(3)

In layman’s terms, a pen register is a “business record” that records the numbers that a user calls.  The user, according to the Supreme Court, has no reasonable expectation of privacy in the numbers that he calls.  It’s important to note that a pen register does not record the contents of communications between users.


Next, we’ll discuss the placement of GPS trackers.  In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court held that the placement of a “beeper” (basically a tracking bug) in a container of chloroform did not constitute a “search” within the meaning of the 4th Amendment.  Here are the facts of the case:

  • The police placed a beeper in a container of chloroform prior to the defendant obtaining the chloroform.
  • Once the defendant took possession of the container, the police tracked the movements of the automobile on the public roads that ultimately ended up with the container in a field.
  • The Supreme Court reasoned that since the defendant used public roads, he had no reasonable expectation of privacy in his movements and thus a “search” had not occurred.

Based on Supreme Court precedent in Knotts, one might conclude that the following case was not a “search” within the 4th Amendment.  One would be wrong.

Just recently the Supreme Court ruled that the police could not place a GPS tracker on a suspect’s car without a warrant.  United States v. Jones, 132 S. Ct. 945 (2012).  The facts of the case were:

  • The police obtained a warrant to place a GPS tracker in the defendant’s car within the District of Columbia within 10 days.
  • The police installed the GPS tracker in Maryland, outside the 10 day window, thus the placement was warrantless.
  • The Court held that this was a “search” within the 4th Amendment and thus, placing a GPS tracker on a suspect’s vehicle without a warrant was an unconstitutional search within the meaning of the 4th Amendment.

So why was placing a beeper in a container that the defendant brought with him considered no search under the 4th Amendment, and placing a GPS tracker under a suspect’s car considered a search?  Well, in Jones, the Supreme Court reasoned that the Katz decision, from which the “reasonable expectation of privacy test” was derived, did not supplant the traditional notion of trespass being grounds for an unconstitutional search.

In Knotts, the police placed the beeper in the container before Knotts was the owner, and thus there was no trespass (nor did he have a legitimate expectation of privacy).  In Jones, the police committed a trespass by placing the GPS tracker on the suspect’s car, giving rise to a 4th Amendment violation.  The Court did not even address the government’s argument of whether the defendant had a reasonable expectation of privacy in the underside of his car.

How it applies to contemporary tech

Lastly, we’ll discuss GPS cell phone tracking.  This issue has not come before the Supreme Court… yet.  The 6th Circuit Court of Appeals is the only appellate court to take up this issue.  In United States v. Skinner, 690 F.3d 772 (6th Cir. 2012), the police used a suspect’s GPS data, gathered from his cell phone, to pinpoint his location.

The court reasoned that the suspect had no legitimate expectation of privacy in the data given off by his cellphone.  The case was appealed to the Supreme Court and certiorari was denied.  As of right now, warrantless GPS data collection from cellphones is legal in the United States.  Now, this could change whenever these issues come before a new circuit court, such as the more liberal 2nd and 9th circuit courts.

Understanding FISA

Are you still with me? Good. Let’s dive into the Foreign Intelligence Surveillance Act, and what it provides for the government. FISA was passed in 1978 by the United States Congress.  FISA created an 11 judge panel (to be called a FISA Court), appointed by the Chief Justice of the Supreme Court.  The 1978 FISA required a showing that the primary (remember that) purpose of the surveillance was for gathering foreign intelligence.  The Patriot Act changed primary to significant.


This may not seem like that big of a deal, but it is.  The change allows the government to conduct surveillance for purposes other than gathering foreign intelligence, so long as the gathering of foreign intelligence is thrown in there.  For example, the government could now say, “we’d like to conduct some warrantless wiretapping for the purposes of obtaining information on X, Y and Z, some of which pertains to foreign intelligence.”

Further, it gave the President the power to approve a warrantless surveillance provided the Attorney General had sworn to the following under seal of the FISA Court:

(A) the electronic surveillance is solely directed at–

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title

50 U.S.C. § 1802.

In the alternative, the government can obtain a warrant from the court pursuant to probable cause that the target of the surveillance be a “foreign power” or an “agent of a foreign power”, and that the places at which surveillance is requested is used or will be used by that foreign power or its agent. In addition, the court must find that the proposed surveillance meet certain “minimization requirements” for information pertaining to U.S. persons.  These “minimization” requirements are:

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

50 U.S.C. § 1801(h).

So what does this mean in terms of the leaked FISA Court documents?  It means it’s perfectly legal (and that’s not an opinion, it’s a legal fact)!  Let’s look at what the FISA Court order stated and what the administration had to do to get it.

The order stated that the government could collect pen register data (numbers called, time and length of calls…) but could not collect the content of the communications, i.e. no eavesdropping on conversations.  The order also complied with the minimization requirements laid out in FISA, so we know this affected US citizens.  That’s it.


Now, what did the government have to do to get this order?  Well, they could have conducted a warrantless wiretap so long as the Attorney General met the requirements of FISA outlined above, but the government chose to not go this route.  They went to the courts, made a showing of probable cause and obtained a court order.  The government did not have to do this under FISA, they actually went further to protect the privacy of citizens than they needed to under the law.

Those are the facts, not (and I can’t emphasize this enough) my opinion.

How I feel about it

Now, here’s is why I wanted to write this article.  The government complied with (and arguably went beyond the minimum requirements of) the law.  I’m not making a judgment as to whether this is morally or ethically right or wrong, merely, that they complied with the law.  This situation is no different than Apple, Google, et al. taking advantage of the tax laws to avoid paying billions in US taxes.

Maybe it’s right, maybe it’s wrong, but the most important fact is:  it’s legal.  Don’t be mad at the government for taking advantage of a law that’s been in place for 35 years; be mad at the politicians who passed the legislation and who continue to approve FISA.  We, as citizens, elect these people. If we don’t agree with the actions of the government, that are completely legal, we only have those we’ve elected (and ourselves, somewhat) to blame.


The issue here shouldn’t be “the government is engaging in illegal surveillance of its citizens.”  The issue should instead be, “the government is engaging in legal surveillance of its citizens AND we need our elected officials to change the law so that this can’t happen in the future.”  Let’s not forget, setting aside the FISA Court order, to collect pen register data (which is basically what the government did in this case), they did not need to meet the requirements under FISA.  Under Supreme Court law, pen register data is not a “search” within the 4th Amendment and ideas like that might be the real problem.

This is an interesting conversation, so I pinged my colleague-in-action, Chris Michaels, regarding his thoughts on the matter. Note his full rebuttal in the section immediately following this one, and the questions he poses which I will try to answer.

The Devil’s Advocate, and his questions (Chris Michaels)

I’m a little fuzzy about what, exactly, constitutes a “search” under the 4th amendment now. In US v. Knotts, a bug was planted prior to the suspect taking custody of the item, and thus, it was not considered a search. Arguably, the LEAs were in the “right place, at the right time”, to observe (passive – anybody could have picked up the bucket), rather than conduct a search (active – targeting a specific person).

So while my electronics communications cannot be “searched” in the traditional sense, given the dynamic nature of internet routing (I give my communications to my ISP, who in turn gives them to their backbone provider, who in turn gives them to another backbone provider, who in turn… until they hit the provider of the target I’m communicating with), what in the 4th amendment protects me from having my communications diverted to a network that is monitored passively, without a warrant?

If I make an incriminating statement in the privacy of my own home, it can not be used against me if recorded with out my knowledge, but if I make an incriminating statement in front of a police officer who is just in the area and overhears, it’s legally admissible, is it not? What’s the difference?

If I were to post some important, sensitive documents on a bulletin board at the supermarket, and tell the target recipient to send somebody to pick them up – anybody who passes by that bulletin board can see what’s posted at any time, for any reason. This is a basic analogy to how internet networking works. It is not a private communication between two people, it’s equivalent to yelling from the top of a mountain to somebody listening on another mountain top. Anybody down below can see/hear what’s being said.

yelling from mountaintop

I’ve seen the government make this exact analogy before — and so long as encryption is not used to obfuscate the communication, I don’t have any expectation of privacy here — but a reasonable person with less understanding of technology might. The EFF has taken a look at a lot of cases involving things like this, and I liken this situation to the Washington case they have filed a brief in.

It states that police may read/intercept text messages because anybody can pick up anybody else’s phone if given the opportunity and leaf through it. While that’s a physical action, and mine is more electronic, the method is pretty much the same: anybody can leaf through my communications at any time if I leave them lying around. Or transmit them over the internet without encryption. For reference, see the EFF’s website.

What protections, if any, does FISA and the 4th amendment provide here, given the nature of the method of communication, and, does the Washington law conflict with that protection?

Lastly, I’m a firm believer that just because something is legal, it isn’t necessarily moral. Consequently, just because something is illegal doesn’t make it immoral, either. Congress has just approved a 5 year extension to FISA and the warrantless wiretapping laws it allows. What legal challenges can the average citizen put to the system, to help overturn this at the court level?

Obviously, voting for better elected representatives is one solution, but that won’t repair the harm that has already been done. Judicial review is important to power-check and balance the legislative branch, so what can we do to start that proper review of the situation, given that it currently appears legal, though in many people’s minds is immoral? I’ll kick it back over to Jay to help shed some light on all of this.

Antiquated laws, timeless solutions

I’m going to tackle Chris’ questions paragraph by paragraph, so let’s get started.

Let’s start with what “search” means.  Search, in terms of the 4th Amendment, is a term of art, it is not the same thing as physically searching someone or something of that nature.  When a court says it was “search” under the 4th Amendment, what they actually mean is that the 4th Amendment prohibits unlawful “search and seizure” and the behavior the police engaged in is a “search”, the type that would fall within the purview of the 4th Amendment.  If a court were to determine something was not a “search” then it falls outside of the 4th Amendment and the action is not unconstitutional (from a 4th Amendment perspective).

In reality, nothing stops the government or anyone (though note that the Constitution, except for the 13th Amendment, only applies to state actors a/k/a governmental entities) from warrantlessly eavesdropping on communications.  That’s the nature of humanity; we make laws, but people still break them.  The only true repercussion is that if the government were to monitor these communications without a warrant and they are in fact a “search” within the 4th Amendment, then the evidence would get suppressed at trial (should the government bring a case against you) and it could not be used against you.  In addition, you could potentially sue the agency for 42 U.S.C. § 1983 damages for violating your constitutional rights.

Unless it’s your spouse recording that conversation, it can absolutely be used against you whether you knew about it or not.  Only one party needs to know a conversation is being recorded for it be legally admissible — just check out the False Friends Doctrine for more on that.  No one, according to the Supreme Court, has a reasonable expectation of privacy in a conversation with another (unless it’s your spouse, attorney, doctor, etc…).  So there’s absolutely no difference between that scenario and saying something in front of a police officer.  If the conversation was being recorded without any participant’s knowledge within a space that one would otherwise have a reasonable expectation of privacy, then the police need a warrant.


Here is the classic misconception that an individual’s reasonable expectation of privacy is “the reasonable expectation of privacy” against which all 4th Amendment search issues are judged.  Because an individual has specific knowledge of the inner-workings of certain technology, does not mean the average person does not have a reasonable expectation of privacy.  For a quick example, let’s use Gmail.  It’s safe to assume we all use Gmail here, and we all know Google reads our Gmail because Google Now can pick up on the contents of our email and suggest things (and Eric Schmidt explicitly said so).

We still have a reasonable expectation of privacy in our email communications.  Until the courts change the meaning of reasonable expectation of privacy to exclude email communications, we have that protection.  As for the specific example of a bulletin board in a supermarket, there’s no reasonable expectation of privacy there, but I’d argue there are certainly a few more safeguards on the internet for sensitive data than that of a supermarket bulletin board.

The text message example is a simple judicial reality.  Courts are always behind the times.  The perfect example is the Stored Communications Act of 1986, which is still valid law.  This act allows the government to get emails older than 180 days with a mere subpoena.  The reasoning is because storage was at a premium back in 1986, and people didn’t leave email on servers indefinitely and anything over 180 was “abandoned”.  The law has simply not caught up to the modern world.  Courts are no different.  The EFF is trying to get courts to recognize that text messages are the equivalent of emails and deserve the same protection from warrantless eavesdropping.  Until an appellate court recognizes this or a legislature codifies this concept, it’s legal.

FISA doesn’t really provide protections beyond what was discussed above.  The government has to meet certain criteria — if they meet it, then they can engage in eavesdropping.  The only way the Washington law would conflict with anything is if it provided protections less than the constitutional minimum.  Federal law sets the bar, and states can offer more protection, but not less.

If the federal courts in that circuit or the Supreme Court have stated that the police can’t intercept text messages without a warrant, then the Washington law is unconstitutional and it will get struck down in federal court.  Because the EFF isn’t pursuing that route, I’m going to say the federal courts in that circuit haven’t addressed the issue and, therefore, there’s no conflict.

Residents Vote In Mana By-Election

In terms of what the average person can do to help move these concepts into the 21st Century, they need only do what I’ve suggested: raise the issue with politicians.  Unless someone is quite the benevolent person, engaging in a lawsuit (assuming they had standing to do so) of this nature would be prohibitively expensive and best left up to organizations like EFF.

Vote out the politicians that support the programs with which you do not agree.  These laws didn’t suddenly appear in the United States Code, they were made by duly elected political officials.  Write your congressional representatives  and tell them you do not support these laws and you do not support a candidate who supports the laws.  Laws made by courts can be undone by legislation.  If you believe that pen registers should require a warrant, make a federal law stating just that — it just takes someone to stand up and actually do it.

What will you do about it?

If you’ve made it this far, thank you for reading and I commend you on your tenacity.  In closing, I’d just like to say, regardless of your feelings about what we’ve discussed, educate yourself on the laws of this country. The resources are available.  Then, take action.  Let me repeat that: know and understand the laws before blindly stating unfounded opinions and assertions.  Remember: someone, somewhere might just be observing.  If you have questions or comments, let us hear them below. I’m always willing to help people understand the law!

If you would like to continue this discussion with me, feel free to follow me on Twitter @EDNYLaw, or circle me on Google+ at +Jay Klimek.

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