A Fundamental Problem with the NSA’s Domestic Bulk Data Collection

NSA = J. Edgar Hoover On SteroidsThe Big Picture:

“With a few hundred cable probes and computerized decryption, the NSA can now capture the kind of gritty details of private life that J. Edgar Hoover so treasured and provide the sort of comprehensive coverage of populations once epitomized by secret police like East Germany’s Stasi. And yet, such comparisons only go so far. After all . . . . J. Edgar Hoover still only knew about the inner-workings of the elite in one city: Washington, D.C. To gain the same intimate detail for an entire country, the Stasi had to employ one police informer for every six East Germans — an unsustainable allocation of human resources. By contrast, the marriage of the NSA’s technology to the Internet’s data hubs now allows the agency’s 37,000 employees a similarly close coverage of the entire globe with just one operative for every 200,000 people on the planet. In the Obama years, the first signs have appeared that NSA surveillance will use the information gathered to traffic in scandal, much as Hoover’s FBI once did.”

Read the whole thing. Domestic bulk data collected by the NSA conveys immense power on those with access to this information and will be prone to political (and financial) abuse. History demonstrates that the lure of such data for improper purposes likely will be irresistible. Hoover stayed in office for decades, aided in large part by the information the the FBI had collected on politicians of the day. Imagine what could be done with the data collected by the NSA.


Get a Warrant: Supreme Court Rules on Cell Phone Searches Incident to Arrest

Chief Justice Roberts, writing for a unanimous Supreme Court in Riley v. California, 573 U. S. ____ (2014), held today that the police generally may not, in the absence of a warrant, search digital information on a cellphone seized from an individual under arrest:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’ . . . . The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. 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 calls into serious question the constitutionality of the NSA’s bulk data collection and will likely impact other areas as well, such as cases involving access to cloud-based data and the third-party doctrine.


In Riley v. California, a Unanimous Supreme Court Sets out Fourth Amendment for Digital AgeSCOTUSblog

The Supreme Court Brings the Fourth Amendment into the 21st Century – Law Professor Glenn Harlan Reynolds in Popular Mechanics

Why the Supreme Court May Finally Protect Your Privacy in the CloudWired


“[A] structural approach, which focuses on preserving an overall balance between state control and citizen autonomy, seems to me more appropriate for evaluating mass surveillance programs such as the NSA’s … . [T]he appropriate question is whether the creation of a system of surveillance perilously alters that balance too far in the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who—whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good—would seek to use it against us.”

Link Round-Up: U.S. v. Jones (GPS tracking and the Constitution)

The U.S. Supreme Court for the first time pondered the constitutionality of location tracking technology in the case of U.S. v. Jones. The Court decided yesterday that the government’s attachment of a GPS device to a vehicle (followed by the government’s use of that device to monitor the vehicle’s movements on a long term basis) constitute a search under the 4th Amendment. The emphasis in the majority opinion on the physical placing of the monitoring device on the vehicle and the existence of separate concurring opinions raise questions as to how far this decision really extends – important questions given the increasing prevalence of geolocation tracking.

The Supreme Court decision in U.S. v. Jones:

”Supreme Court Holds Warrantless GPS Tracking Unconstitutional” at ArsTechnica’s Law & Disorder

”Fourth Amendment Lives? Supreme Court Says GPS Monitoring Is A Search That May Require Warrant” at TechDirt.com

“Reactions to Jones v. United States: The government fared much better than everyone realizes” by Tom Goldstein at SCOTUSblog.com.

”Why the Jones Supreme Court Ruling on GPS Tracking is Worse than it Sounds” by Rebecca J. Rosen at The Atlantic.

”U.S. Supreme Court Unanimously Rule that GPS Installation and Tracking of a Vehicle Constitutes a Search, But The Justices Disagree on Rationale – Are Lines Being Drawn on Privacy Rights and New Technology?” at Proskauer’s New Media & Technology Law Blog.

A series of posts at The Volokh Conspiracy by law professor, Orin Kerr, an expert on computer crime and related areas:

”The New Doctrine of What is A Fourth Amendment Search”

”What Jones Does Not Hold”

”What’s the Status of the Mosaic Theory After Jones?”

”Three Questions Raised By The Trespass Test in United States v. Jones”

”Why Did Justice Sotomayor Join Scalia’s Majority Opinion in Jones?”