posted by Omer Tene
The Sixth Circuit Court of Appeals has recently decided in United States v. Skinner that police does not need a warrant to obtain GPS location data for mobile phones. The decision, based on the holding of the Supreme Court in US v. Jones, highlights the need for a comprehensive reform of rules on government access to communications non-contents information (“communications data”). Once consisting of only a list of phone numbers dialed by a customer (a “pen register”), communications data have become rife with personal information, including location, clickstream, social contacts and more.
To a non-American, the US v. Jones ruling is truly astounding in its narrow scope. Clearly, the Justices aimed to sidestep the obvious question of expectation of privacy in public spaces. The Court did hold that the attachment of a GPS tracking device to a vehicle and its use to monitor the vehicle’s movements constitutes a Fourth Amendment “search”. But it based its holding not on the persistent surveillance of the suspect’s movements but rather on a “trespass to chattels” inflicted when a government agent ever-so-slightly touched the suspect’s vehicle to attach the tracking device. In the opinion of the Court, it was the clearly insignificant “occupation of property” (touching a car!) rather than the obviously weighty location tracking that triggered constitutional protection.
Suffice it to say, that to an outside observer, the property infringement appears to have been a side issue in both Jones and Skinner. The main issue of course is government power to remotely access information about an individual’s life, which is increasingly stored by third parties in the cloud. In most cases past – and certainly present and future – there is little need to trespass on an individual’s property in order to monitor her every move. Our lives are increasingly mediated by technology. Numerous third parties possess volumes of information about our finances, health, online endeavors, geographical movements, etc. For effective surveillance, the government typically just needs to ask.
This is why an upcoming issue of International Data Privacy Law (IDPL) (an Oxford University Press law journal), which is devoted to systematic government access to private sector data, is so timely and important. The special issue covers rules on government access in multiple jurisdictions, including the US, UK, Germany, Israel, Japan, China, India, Australia and Canada.
September 29, 2012 at 4:34 am Tags: cloud computing, data protection, law enforcement, national security, Privacy Posted in: Constitutional Law, Consumer Protection Law, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Uncategorized Print This Post 2 Comments
posted by Mary-Rose Papandrea
On Wednesday morning the House Judiciary Subcommittee on Crime, Terrorism, and National Security held a hearing on the recent national security leaks. I have just finished watching a video of the hearing so you won’t have to (you can thank me later). Experts testifying included President George W. Bush’s homeland security advisor Kenneth Wainstein, American University Professor Stephen Vladeck, George Mason Professor Nathan Sales, and US Army (Ret.) Colonel Kenneth Allard.
As the witnesses pointed out, this is the third time in a year and a half that Congress has called for testimony on national security leaks. The sheer frequency of the hearings indicates that Congress should really try to figure out how to reform the Espionage Act, but I am not going to be holding my breath waiting for this to happen. Today’s hearing raised some interesting questions but unfortunately provided little guidance on how Congress might revise the Espionage Act.
Not surprisingly, Republican members of the Subcommittee largely used this hearing as an opportunity to rail against the lack of a special prosecutor to investigate the most recent national security leaks, while Democrats spent their time pointing out the most recent leaks were nothing new because leaks have been going on since the founding of this country.
The most interesting part of the hearing from my perspective was the Republicans’ attacks on the media for publishing national security secrets. As I had mentioned in one of my first posts, almost all of the hostile reaction to the most recent round of high-profile leaks was initially directed at the leakers themselves and not the media entities that published those leaks. Well, no more. Rep. Lamar Smith of Texas began the attacks on the media at the outset of the hearing when he said that newspapers publish national security secrets not because they are committed to transparency but rather because they want to increase circulation. Colonel Allard happily jumped on the media-bashing bandwagon, stating that the N.Y. Times “abuses its position” and that David Sanger’s reporting was “the equivalent of having a KGB operation running against the White House.” (Colonel Allard also had one of the best quotes from the hearing: “In wartime, I am as opposed to the free flow of information as I am to the free flow of sewage.” Yikes!)
posted by Mary-Rose Papandrea
There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization. As I mentioned in my blog post last week, however, critics of the most recent round of high-profile leaks have targeted their attacks almost exclusively on the leakers themselves and not on the news outlets that published the leaks. So the question is, do leakers have any First Amendment right to disclose national security information to government outsiders without authorization?
At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes. Charlie Savage recently outlined a few of these arguments here. In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called “graymail”). This is one reason why the Drake prosecution fell apart.
posted by Mary-Rose Papandrea
Many thanks to Danielle Citron for inviting me to serve as a guest blogger. Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House’s terrorist “kill lists,” the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran. Outrage about leaks is hardly new. Neither are leaks. (See my prior article detailing the long history of leaks in this country.) What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.
Back in December 2005, when the New York Times published its story about the NSA’s warrantless wiretapping program, the paper and its reporters were condemned just as vigorously as the leakers themselves. It is interesting to think about why the politicians and commentators have held their fire against the media after this latest round of leaks (at least so far). Perhaps critics’ suspicions that these leaks were politically motivated during an election year to make President Obama look like a strong leader has made them forget to take their usual shots at the “liberal media” that disseminated them to the public. But given that leaks often appear politically motivated, this answer is not all that satisfying.