Monday, June 10, 2013

Can Justice Sotomayor Stop the NSA?

Supreme Court Justice Sonia Sotomayor. (photo: Scott Applewhite/AP)
Supreme Court Justice Sonia Sotomayor. (photo: Scott Applewhite/AP)

By Lynn Oberlander, The New Yorker

09 June 13

he Verizon Business customers who learned, this week, that the company had given records of every call they made within and from the United States to the National Security Agency might also have been surprised to find out that, under current law, the government did not need a warrant (or probable cause) to access that information. The records are not considered private, and all the government needed was an order from the secret Foreign Intelligence Surveillance Act Court. That might sound like a safeguard against government overreach, but the court approved all but one of the five thousand one hundred and eighty applications submitted for surveillance and physical searches between 2010 and 2012. It is hardly what you would call a watchdog.
How could phone records - "telephony metadata," as the order called them - not be considered private? As Jane Mayer has written, metadata can contain numerous revelations, not just about who we're talking to and for how long but about where we are. The answer has to do with a case that dates back more than thirty years, and which the Supreme Court may be ready to reëxamine. Based on a reading of recent opinions, one of the key figures in such a reëxamination is likely to be Justice Sonia Sotomayor.
In 1979, in Smith v. Maryland - a case involving an automobile theft - the Supreme Court said that it was not a violation of the Fourth Amendment, which prohibits unreasonable searches, for the government to ask a phone company to install a "pen register" to track the incoming and outgoing calls of a particular number, because there was no reasonable expectation of privacy for information given voluntarily to a third party - in this case, the phone company….
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