By Lynn Oberlander, The New Yorker
09 June 13
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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….
Continue Reading: Can Justice Sotomayor Stop the NSA?
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