Hate Crimes Legislation and Poor Judicial Conduct

I came across an unfortunate consequence of confusion partially created by the charges resulting from hate crimes legislation.  This morning I read a New York Law Journal article by John Caher entitled Manslaughter Hate Conviction Found to Be Legally Consistent (paywall).  This article was based on a decision in the case of The People of the State of New York v. Dwight R. Delee KA 09-02479.

Mr. Dwight Delee was charged with killing a person by shooting him with a rifle.  The man he killed was a homosexual and wearing a dress at the time of the murder.  There was ample evidence that the crime was at least in part motivated by an animus towards the victim’s sexual preference.  Mr. Delee was charged with murder in the second degree as a hate crime, intentional murder in the second degree and criminal possession of a weapon in the third degree.  At trial there were some lesser included charges that were given to the jury including manslaughter as a hate crime in the first and second degrees and manslaughter in the first and second degrees.

After the trial Mr. Delee was convicted of manslaughter in the first degree as a hate crime and criminal possession of a weapon in the third degree.  He was acquitted of all the other charges, except one which us unnecessary to discuss as it is irrelevant to this article.

The defense moved post-verdict to dismiss the conviction of manslaughter in the first degree as a hate crime because it was inconsistent with the acquittal on the manslaughter in the first degree charge.  This properly preserved the issue for appeal.  Unfortunately, the judge dismissed the jury before asking them to resolve their conflicted verdict.  The judge could have avoided the, I believe unjust, result if he or she had merely asked the jury to resolve the conflict.  This was poor judicial conduct and helped to result in the ends of justice not being served.

The appeal resulted and the appellate court overturning the conviction of manslaughter in the first degree as a hate crime.  The majority found the not guilty finding of manslaughter in the first degree to be inconsistent with a guilty finding of manslaughter in the first degree as a hate crime.  The majority held that manslaughter in the first degree and manslaughter in the first degree as a hate crime are identical in all elements except the added hate crime element to the latter.  If the jury found that one of the elements of manslaughter in the first degree was not met, then it also could not have been met to support the hate crimes conviction.

The result is that a person who shot someone in cold blood serves the three and one half years on the illegal weapons possession and serves no time for the murder.

The jury foreman apparently presented an affidavit roughly a week after the verdict explaining what took place during the deliberations.  It turns out that the jury quickly determined that this was a hate crime.  Because they decided that it was a hate crime they found him not guilty of the other charges.  This is the danger of having the similar crimes charged.  It seems the jury found that because the hate crime element was met they should only find him guilty of the hate crime.  In other words, they saw a selection of choices and went with the most correct choice instead of all the correct choices.

It is confusing serving on a jury.  To have charges that are identical, except as to one element, being charged presents an added layer of difficulty.  It is fairly clear that this jury would most likely, if presented with the conflict by the trial judge, have found the defendant guilty of both manslaughter in the first degree and manslaughter in the first degree as a hate crime.

Whether or not you agree with hate crimes legislation it is clear that the confusion caused by having the similar counts charged to the jury helped result in a miscarriage of justice.  I understand that better judicial conduct most probably would have salvaged the verdict.

It could also be argued that the overcharging, inclusive of the lesser included offenses to the jury, may also result in confusion.  This is true and this case is not definitive and I am definitely not arguing that this case means all hate crimes legislation should be written out of the law.  I think it would be interesting to find out how often this happens and whether this case is an outlier.

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Dicta That Made Me Laugh

I was reading the decision in United States v. Edwards, 498 F2d 496 (2nd Cir. 1974) and was struck by some dicta.  The majority, referencing airport searches, held that “[m]ore than a million Americans subject themselves to it daily; all but a handful do this cheerfully, even eagerly, knowing it is essential for their protection.” Id. at 500.  This sentence made me chuckle.

Maybe it is just me but when I go through airport security I don’t see people eagerly awaiting their chance to have their entire body x-rayed or jumping at the opportunity to have a TSA agent grope their person.  How things have changed.

Danger of the Special Needs Doctrine

I was reading the New York Times Article “In Secret, Court Vastly Broadens Powers of N.S.A.” by Eric Lichtblau.  This article was written generally about the secret law that has been created by the FISA court.  It also touches on how that law has expanded in gross numbers of decisions and substantive theories that underly these new decisions.  This article was written based on information received from “current and former officials familiar with the court’s classified decisions.”

Mr. Lichtblau’s article discusses the “special needs” doctrine and its application to terrorism cases.  He points out that the “special needs” doctrine has been used by the Courts to find “that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger.”  Mr. Lichtblau then writes that this doctrine has been used more broadly to track the communications of American citizens based on the need to combat terrorism.  Mr. Lichtblau writes that his source contends this tracking “does not run afoul of the fourth amendment.”  Mr. Lichtblau further states that the reasoning used in terrorism cases has been used in cases involving other potential threats so long as they fit under the enlarged definition of “foreign intelligence.”

Mr. Lichtblau then writes that the metadata that is captured by the government has been treated unworthy of 4th amendment protection.  However, the government needs to have some sort of specific information about a threat in order to search the data it has collected.

Orin Kerr wrote a thoughtful post on this article on the Volokh Conspiracy entitled “Hints and Questions About the Secret Fourth Amendment Rulings of the FISA Court.”  His article raises some questions about the New York Times aricle.  Mr. Kerr is not surprised that the “special needs” doctrine has been used as public courts have already found that the “special needs” doctrine can be properly invoked with terrorism as its justification.  Furthermore, Mr. Kerr does not know what to take away from the article.  He wonders whether Mr. “Lichtblau [is] just saying that the metadata collection is outside the Fourth Amendment but that obtaining contents is protected (but covered by the special needs doctrine, requiring some cause but not a warrant)? Or is Lichtblau saying that accessing even just the metadata database is some kind of search requiring justification?”

This is a very important question.  It is  not answered in the New York Times article and without access to the secret FISA court decisions it is unlikely that anyone could reasonably divine what has developed behind locked doors.  I will attempt to add a further wrinkle to the question and posit a hypothesis.

To first understand this question one needs to examine what the “special needs” exception is not.  This exception, as applied, does not mean that a search has not taken place under the 4th amendment.  Cassidy v. Chertoff, 471 F.3d 67 (2nd Cir. 2006) discusses, in some detail, the special needs exception and its application in general to 4th amendment jurisprudence.  What we learn is that a person can have a reasonable expectation of privacy in the items the government wants to search.  However, the “special needs” exception can result in a finding that the search was reasonable under the circumstances. Thus, there is no 4th amendment violation despite a reasonable expectation of privacy.

However, as Orin Kerr dutifully points out, the devil is in the details when discussing 4th amendment cases.  The case I cited above applies to searches of a person and of their luggage.  When looking at the search of phony metadata there are other requirements at play than just the 4th amendment.  18 USC § 3121-3127 adds the further dimension that a tap and trace must be relevant to an ongoing criminal investigation amongst other requirements.*

Perhaps in order to satisfy this statute the FISA courts have adopted a standard that must be met by the government before collecting phony metadata.  It is also as equally plausible that the FISA court has found that the obtaining of the metadata is subject to the special needs exception and the tap and trace statute is only applied once the government wants to search the information it has collected.

So why is my article seem to indicate that there is a danger presented by the “special needs” doctrine?  Very simply because the “special needs” doctrine is extremely fact specific and here the facts and the laws are being executed and interpreted in secret.  This creates a hollowing out of your 4th amendment rights.

We know to date that citizens of the United States of America have had their rights violated by the federal government.  We know that there are decisions by the FISA courts indicating that such violations have taken place.  However, there is no remedy or even a right to know whose rights have been violated.  A right that cannot be enforced is not much of a right at all.  This is even more true when the very evidence of the violation is ordered to be destroyed and no citizen is made aware to what extent and under what authority their rights were violated.

Furthermore, citizens cannot adjudge what actions their government is taking and comport their future behavior to protect their privacy.  For instance, I know that if I use a ferry to transport myself across Lake Champlain my bags and my car may be searched.  If I have something I don’t want the government to know about (whether legal or illegal) I can comport my behavior to protect my privacy.  I can hire my own boat, I can drive around the lake, or I can choose to transport my luggage or car via any number of alternatives.  In connection with the NSA snooping I do not know under what standards my privacy is being invaded.  I cannot even attempt to comport my behavior to protect my privacy if I don’t know what items of mine the government is searching and under what theory they are conducting the search.

I understand the need to keep secrets so that the terrorists cannot attack American citizens.  However, if I cannot protect my rights from my government then my choice becomes the lesser of two evils.  Our founding fathers created limitations on our government as a bulwark against such choices.  We chose freedom over perfect security.  We saw that the search for perfect security gives the government powers that can and will be abused.  Open government, written laws, and open courts protect the citizens from overreach by their government.  Two of those very sacred protections are taken away from us under the FISA regime.  We are left to the whims of elected officials and are in danger of becoming a nation of men not a nation of laws.

*For a more comprehensive take on this law please see my article entitled “Smith v. Maryland and the NSA telephone number defense.”

Lois Lerner and her Catch 22

It has become apparent that Lois Lerner is going to invoke her fifth amendment right to not incriminate herself.  Rachel Bade and John Bresnahan wrote an article discussing the issues surrounding her use of the right.  Their article focused mainly on the maneuvering of the parties involved and the practical implications of their decisions.

There was a statement by Lois Lerner’s attorney, William W. Taylor III, that seems to undercut her use of the fifth amendment privilege.  Mr. Taylor is quoted as follows: ““If the court finds that she didn’t waive, then it’s over, and if the court finds that she did and orders her to testify, then she goes to testify,”Taylor said, later, adding that there is “no danger under any circumstances of her going to jail.””

This begs the question.  If there is no danger under any circumstances of Lois Lerner going to jail based on her testimony then what is the basis for exercising her fifth amendment rights?  One cannot assert the privilege because the testimony they are being asked to give is uncomfortable or will paint the testifier in a negative light.  One has to believe that their testimony may incriminate.  At best this statement by her attorney further muddies the water in an already murky situation.

Some may argue that this sentence was just an errant statement from her attorney.  I seriously doubt an attorney with the pedigree and experience of Mr. Taylor is in the practice of making errant statements to the press. I am, quite frankly, confused as to why he made that statement.

What is Freedom?

When I read or hear reports about the NSA’s massive spying there is often a point of view elucidated as follows: some argue that they will surrender some amount of their liberty in return for their safety.  This is at best a false argument and unfortunately is given improper weight from the members of the press.

It is quite understandable that a society cannot function if said society is destroyed by outside threats.  John Stuart Mill and our founders understood this well.  They examined the root necessities of the power of individuals to exercise power over others. They realized that this power must be extremely limited and tied to very necessary ends.  It was understood that this power is necessary and dangerous as the accumulated power can be used against citizens with the same force and effect as it is used against outside threats.

“Their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies.  To prevent the weaker members of the community from being prayed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down.  But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defense against his beak and claws.  The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.”  John Stuart Mill 1859

The balance between liberty and security cannot unfortunately be drawn completely in favor of liberty.  We all want our government to protect us from real and understood threats.  Terrorism is unfortunately a real threat in our society.  This need to be protected from real and understood threats is the basis for societies justified power over others.

“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will , is to prevent harm to others.  His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.”  John Stuart Mill 1859

It is understood and generally accepted that power can be exercised to the extent necessary to salvage civil society.  To what extent these powers are used and when they are allowed to be exercised are the questions of our time. Unfortunately, some pretend that the present questions we face as as a nation are novel ideations that only our generations have faced and thus the lessons of the past can be dashed aside as inapplicable to our present predicaments.  These very arguments attempt to compel us to give up our basic liberty for protection from threats.  This  inability to understand that our challenges are not unique is a fallacy of hubris and a failure of character.

“All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people.  Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law.  What these rules should be is the principle question of human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving.  No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another.  Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which making had always been agreed.” John Stuart Mill 1859

The questions of the balance of liberty and security has thusly been debated since the creation of government.  The question boils down to one of line drawing.  Where is the line drawn between liberty and security?  What human freedoms do we allow the collective to violate in order to save the individual.  Throughout time mankind has made these decisions and all to often on the basis of the decisions is the whim of personal opinion.

“There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested.  People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interest amenable to governmental control.  And men range themselves on one or the other side in any particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government.”  John Stuart Mill 1859

We, as a society, must realize that we are an advanced people and that we have set up limitations on our government of which they cannot impede.

“Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end.  Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate to find one.  But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.” John Stuart Mill 1859

Since September 11, 2001 there has undeniably been a need to protect Americans from an outside force.  What Americans have been cheated of is the ability to debate, and be informed of, the extent and amount of liberties that have been suffered in this battle.  The very limits that have been established to constrain the power of our governing officials has presumably been violated.  They cannot violate these rights any more than I can sell a house I do not own.

The persons who claim to accede their liberty in return for protection from terrorists know not what they accede.  Our government has not allowed its citizens to see how the laws it has passed has been interpreted.  It is each individual’s right to decide what they will accede in the fight against terrorism.  Until we understand what is at stake we cannot begin to bargain.  Americans have had the terms hidden, yet asked to sign away the rights and privileges guaranteed under the Constitution.  Our basic liberties are at stake and our government has asked us to sign a blank check upon which the cost is never revealed.

I refer again to John Stuart Mill as he has expressed the essence of the very liberties we are perilously risking.

“This, then, is the appropriate region of human liberty.  It comprises, first, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.  The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it.  Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject of such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.  Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.

No society in which these liberties are not, on the whole respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.  The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.  Each is the proper guardian of his own health, whether bodily, or mental and spiritual.  Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.”  John Stuart Mill 1859

A valid objection may be formed to argue that I speak mostly of basic liberties and avoid the questions of the dangers we face.  This is necessarily because the dangers we face are as classified as the liberties we have sacrificed.

I watch as the ‘Freedom Tower’ rises outside of my office window.  We are approaching the 12 year anniversary of those horrific acts.  Exigency can only last for so long.  A truly free society deserves to know what entreaties their government has taken upon their liberties.  No matter who temporarily is elected into positions in our government we exist as a government of, by, and for the people.  It is not for our politicians to decide in secret what laws they will or will not obey.  It is exceedingly unfortunate that we learn that all branches of our government were involved in this mass deception.  To date the media cannot inform of us of the dangers we face and the liberties we have sacrificed in the name of protecting us from these dangers.  Until they can inform us of the specifics they should not give credence to the argument that some find it acceptable to sacrifice some liberty for security.

The NSA, the 4th Amendment, and your email

I earlier wrote about the National Security Agency (NSA) and their mass collection of phone records (Smith v. Maryland and the NSA Telephone Number Defense).  Now I would like to briefly discuss the privacy issues surrounding the NSAs use of the PRISM program.  I’ll narrowly focus on emails and this post necessarily hinges on an assumption that the NSA, through the PRISM program, is storing your emails to later search.

My assumptions are as follows: I believe that the NSA is gathering emails to later have access to in case it needs to search through them.  This is based on the government’s needle and haystack defense.  Ranking member of the House Intelligence Committee Dutch Ruppersberger put forth this defense.  He described it as follows:  “If you want to find a needle in a haystack, which is a lot of what our intelligence community does, you need the haystack.  And the providers who have this information, they keep it only for a certain period of time.  So in order for us to be involved and stop these attacks, we need to move right away.” (CNN)  I grant that he may have just been referring to the collection of phone numbers dialed, but I suspect that the needle and haystack defense may well be used as justification to defend PRISM.

So I believe it is safe to assume that the government is gathering this data (your emails) in case they are deleted or secreted away so that if they feel the need to later search your emails they will have ready access.  This is supported also by the need for the government to build a massive new data storage center that will be able to hold a yottabyte of data.

So that is where I begin my analysis.  As always it is helpful to look to a court case that has undertaken a careful analysis of the issues presented to frame this discussion.  The court case I will be relying on, and citing to, is United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).

If you remember, as stated in my earlier post, that when a court undertakes to determine whether a violation of the 4th Amendment has taken place they undergo a two pronged analysis.  Judge Boggs put it as such:

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” U.S. Const. amend. IV. The fundamental purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); see Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613-14, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (“The [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.”).

Not all government actions are invasive enough to implicate the Fourth Amendment. “The Fourth Amendment’s protections hinge on the occurrence of a ‘search,’ a legal term of art whose history is riddled with complexity.” Widgren v. Maple Grove Twp., 429F.3d 575, 578 (6th Cir. 2005).  A “search” occurs when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). This standard breaks down into two discrete inquiries: “first, has the [target of the investigation] manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)).

The Court made easy work of the first question concluding that the defendant had a reasonable expectation that his emails would remain private.  I think this assumption is axiomatic.

The Court’s next step was to determine whether society is willing to accept this expectation of privacy in email as reasonable.  “This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication.” Warshak, at 284. The Court then went further to give just a few of the numerous examples of how important email has become to our lives:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

The Court went on to hold that based on the similarities between emails and traditional forms of communications that common sense dictates that it should receive the same 4th amendment protections.  The Court further pointed out that the mere fact that a third-party intermediator could access the emails does not obviate the expectation of privacy.  They pointed out that telephone company operators have the ability to listen in on a phone call and the government still needs a warrant to listen to your calls.

They also point out that a hotel guest has a reasonable expectation of privacy in their hotel rooms despite the fact that a maid can enter the room to clean.  However, the Court made sure to be clear that there are circumstances under which an agreement with your ISP may render your expectation of privacy null and void.

Again, however, we are unwilling to hold that a subscriber agreement will never be broad enough to snuff out a reasonable expectation of privacy. As the panel noted in Warshak I, if the ISP expresses an intention to “audit, inspect, and monitor” its subscriber’s emails, that might be enough to render an expectation of privacy unreasonable. See490 F.3d at 472-73 (quoting United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000)). But where, as here, there is no such statement, the ISP’s “control over the [emails] and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy.” Id. at 473.

The Court then went on to hold that the expectation of privacy in your emails is one that society is willing to accept as reasonable.

This case shows that there is at least one Court of Appeals in the United States that views emails as analogous to traditional mail. The question that remains is whether the terms of service used by the companies like Google in their GMail service obliterate the expectation of privacy.  Here is a link to Google’s privacy policies.

This was briefly discussed by Judge Garaufis in IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL-SITE INFORMATION 809 F.Supp. 2d. 113 (E.D.N.Y. 2011).  Judge Garaufis posed the question in Footnote 6 this way: “For example, would the third-party doctrine remove the reasonable expectation of privacy over the contents of emails sent on Gmail, or similar email providers, that use computers to access and analyze the contents of email communications in order to display advertisements?”

The question that remains unanswered is whether the secret law created by the FISA court has dealt with this issue.  More specifically, has the FISA court looked at GMail’s terms of service and made a decision that you do not have a reasonable expectation of privacy in your GMail because of the invasive nature of Google’s use of your emails.  Unfortunately, with no access to the secret court decisions people cannot adjust their behavior accordingly.  Thus the nefarious nature of secret law and secret courts move onward.

I also have to note that the secret courts may have determined that the storage of the emails does not constitute a search until the government physically looks at the content of the emails in some way.  Of course a post based on secret law would not provide much insight without being informed of the contents of secret law.

*You may be wondering why this post does not discuss the Stored Communications Act 18 USC § 2703.  I believe that this post was long enough as is and the Stored Communications Act will still be around in the future to feature in its very own post.

Smith v. Maryland and the NSA telephone number defense

It is clear that the Department of Justice and the National Security Agency (NSA) have been collecting the records showing the telephone numbers of every single phone call that you make.  It is not yet clear whether they have been collecting the contents of those phone calls.  Below is an attempt to analyze the argument the government has put forth as their basis for this wholesale collection of numbers.

The only case that has been discussed as possible justification by the government is Smith v. Maryland 442 U.S. 735 (1979).

First, a little background.  Michael Lee Smith robbed a woman in Maryland.  He then began to call and threaten her.  The police identified a license plate on a car that matched the description given by the victim.  This was Smith’s license plate.  The police asked the phone company to install a pen register on Mr. Smith’s phone.  Pen registers are a device that records the phone numbers dialed by a particular device.  They are currently covered under 18 USC § 3121-3127.

This pen register information, along with other information, lead to a search warrant and eventually the arrest of Mr. Smith.  He was convicted and his appeal eventually found its way to the Supreme Court of the United States.

The decision was written by Justice Blackmun.  After reciting the facts, he laid out how the Court approaches questions concerning the 4th amendment.  The opinion was interlaced with cites and references to Katz v. United States, 389 U.S. 347 (1967).  It would be helpful to read the Katz case prior to reading the Smith case.

In Smith, Justice Blackmun held that “the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action.” Smith, at 740.  This inquiry is broken down into two prongs.  The first prong is “whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361 – whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.”” Smith, at 740.  The second prong “is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as `reasonable,'” id., at 361 – whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.” Smith, at 740.

Justice Blackmun then distinguished the facts in Smith from the facts in Katz.  It was significant to Justice Blackmun that in Smith the police only obtained records of the phone numbers whereas, in Katz, the police recorded the content of the phone calls.  Justice Blackmun went on to express that a person knows that the phone company must use the numbers dialed on a telephone to connect it to another line.  Furthermore, the phone company must retain this information for billing purposes.

Justice Blackmun then ruled that a person has no reasonable expectation of privacy in the numbers dialed from their phone.  This meant that the first prong of the 4th amendment test had not been met and thus the 4th amendment did not protect Mr. Smith’s phone records as held by the phone company.  Justice Blackmun then goes on to broaden the holding stating that a person has no reasonable expectation of privacy in information handed over to third parties.

Interestingly, Justice Blackmun specifically dealt with the issue of changing technology.  He found that equipment used by the phone company was substantially similar to having an operator physically routing the phone call.  The fact that no human actually was receiving the information did not matter as the Court was “not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” Smith, at 745.

After the decision in Smith Congress passed 18 USC § 3121-3127. This statute requires the government to obtain a court order prior to obtaining the records of phone calls from third-party companies.  The application for the court order has to claim that the information taken is relevant to an ongoing criminal investigation.  It is clear that the broad collection of every phone call made in the United States violates this statute.  The government, in its defense of the NSA program, has admitted that they are obtaining the phone numbers prior to knowing whether they will be relevant or not.

Furthermore, 18 USC Chapter 206 § 3121-3127, requires that the order issued by the judge to contain the identity, if known, of the person who is the subject of the criminal investigation.  This order must also contain a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.  It is clear that the Verizon FISA* order fails to live up to these disclosures.

It is clear from the above analysis that although the wholesale collection of the telephone numbers called by each United States citizen is not a violation of the 4th amendment it is a clear statutory violation.  Your rights come from the Constitution and from statutes passed by Congress.  The Department of Justice does not have the right to collect the information that it has been collecting.

We can find some comfort in the principle that commercial establishments have 4th amendment rights themselves (see New York v. Burger 482 U.S. 691 1987).  Thus, with some exceptions, the companies can stand up to the government.  We should keep this in mind when we try to take away rights from corporations with slogans such as ‘corporations aren’t people.’  But, that is a fight for another day.

The public need for transparency on this issue is clear.  In order for me to trust my records to a phone company I need to know what protections I have from the government and what steps, if any, my company is taking to protect my information from the government.  I hope these recent events will lead to such transparency.

*When looking at the Verizon FISA order you may then question whether the above statute is the proper statute to be referencing in determining the validity of the FISA order.  This is because the Verizon FISA order references 50 USC § 1861 as a justification for its issuance.  This statute references access to certain business records for foreign intelligence and international terrorism investigations.  The reason that I did not analyze this statute is because it is clearly not applicable to phone records of citizens making phone calls wholly within the United States.  Therefore, I have to assume that the government would look to the pen register statute as its justification for collecting phone calls made internally within the United States.