Ron Wyden’s Past Provocative Hearing Question on Cell Site Location
As I’ve noted, yesterday Ron Wyden got Keith Alexander to refuse to answer a question about whether the NSA has ever collected or made plans to collect Americans’ cell-site information in bulk.
Wyden: Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?
Gen. Keith Alexander (Alexander): Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA’s intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware, –
Wyden: General, if I might. I think we’re all familiar with it. That’s not the question I’m asking. Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that? [my emphasis]
In addition to saying NSA is not doing so under Section 215, Alexander also pointed to two classified responses he would not repeat in unclassified setting.
Which I think confirms — as if there was any doubt — that the answer is yes, the NSA has at least planned, if not actually collected, cell-site location in bulk (though not necessarily under Section 215).
That said, many people are treating this as Wyden’s first provocative hearing question on the topic. This one — from February 2012, just after the US v Jones decision found use of a GPS to constitute a search — may provide some important insight onto the timing and rationale behind such bulk collection.
Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.
Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment. [my emphasis]
I’m not aware that Clapper ever did provide the promised unclassified answer, but Clapper’s suggestion that Jones pertained only to a law enforcement context may suggest the government’s lawyers were going to latch onto language in Sam Alito’s opinion to claim they could use cell-site location to track terrorists, because terrorism was an “extraordinary offense.”
And remember, not long before Wyden asked this question and SCOTUS ruled on Jones, he had asked the following questions more broadly.
What if instead of installing a tracking device, a government agent (or a private citizen) secretly uses a person’s cell phone or GPS navigation device to ascertain that person’s location? Is a warrant required for that? If so, should there be different rules for real-time tracking and getting records of someone’s past movements?
More broadly, when should a cellular company give law enforcement access to a customer’s geolocation records?
I’m particularly interested in Wyden’s question about “records of someone’s past movements,” as that would describe cellphone metadata.
In 2012, Wyden asked Clapper about what seemed to be a current use of “secret law” to collect cell-site data, one that may have been reconsidered in light of Jones.
Given everything we’ve learned about “secret law” since, this seems like a fairly important guidepost about what the IC’s use of cell-site data at least used to be.
“July 31, 2013
Warrants are not required by the U.S. government to access historical cell site information, an appeals court ruled in an order.
The Fourth Amendment to the U.S. Constitution protects only reasonable expectations of privacy, the U.S. Court of Appeals for the Fifth Circuit wrote in a 2-1 ruling on Tuesday. The Fourth Amendment protects against unreasonable searches and seizures.
. . . Cell site information is clearly a business record, collected by the service provider for its own business purposes, and without being asked to so by the government, the court said in the order.
The dispute hinged around whether law enforcement agents can access cell site data with a relatively easy-to-obtain order under section 2703 (d) of the Stored Communications Act, which is based on a showing of “specific and articulable facts,” instead of using a search warrant after showing probable cause.
. . . The Fifth Circuit court clarified that its ruling only covered section 2703(d) orders to obtain historical cell site information, and did not address, for example, orders requesting data from all phones that use a tower during a particular interval or ‘situations where the Government surreptitiously installs spyware on a target’s phone or otherwise hijacks the phone’s GPS, with or without the service provider’s help.’ ”
More discussions of the case:
The 5th Circuit (New Orleans) decision:
As usual, this story makes me sick. You parsed every point perfectly. I still have a problem about “agency” — who is really in control here? Who sets the rules and bounds? This came up in a recent conversation I had with a friend from Brazil, a couple of weeks before their President called off attending a state dinner at the White House, in protest of the NSA’s interception of emails by Brazilian officials. He wanted to know if this was something that Obama has ordered or approves of. I told him that I didn’t know, but that I thought the NSA and the intelligence gatherers had made their own rules all rationalized by the fight against terrorism. I told him about the history of Admiral Poindexter’s TIA project which ultimately migrated from DARPA to NSA, and that the courts themselves (just like the Pope) don’t have a way to enforce rules and depend on NSA and other potential evildoers to provide the critical information about their own misfeasance.
As we now know, Rouseff called off her state visit. May she enjoy many a caipirinja back home in Brazil (where she has enough problems of her own).
“The Fourth Amendment to the U.S. Constitution protects only reasonable expectations of privacy”
It will be interesting to see how this could play out in the Supreme Court where several Justices pointed out that the Katz “expectation of privacy”-test was invented in 1967 and is hardly the beginning or the end of an illegal search and seizure inquiry. U.S. v. Jones, 565 US ___, 4(2012)( Scalia J.: “Fourth Amendment rights do not rise or fall with the Katz formulation); U.S. v. Jones, 565 US ___,2(2012) (Sotomayor J. Concurring: “Katz’s reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it.)
More interesting were Sotomayor’s thought on the Smith Third Party Doctirne:
“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976) . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” U.S v. Jones, at 5 (Sotomayor J. concuring)
(“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C. J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illinois v. Lidster, 540 U. S. 419, 426 (2004) .
Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring).
People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C. J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illinois v. Lidster, 540 U. S. 419, 426 (2004) .
Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring). Id. at 3-4.
if i am required by a phone company to give certain personal identifying information (name, billing address, credit card, bank account, etc) in order to have and use cell phone service,
and i use the phone and in so doing reveal my location which can be traced back to my identifiers,
i can hardly be said to have willingly given the identifying info to the phone company. had i refused, i would have been forced to do without cell phone service.
Also interesting is the recent Miami dog sniff case where the U.S. Supreme Court ruled that bringing a dog to the front door of a home to sniff for drugs was an unconstitutional search.
” have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlersof all kinds.”
Breard v. Alexandria, 341 U. S. 622, 626 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly,wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than
any private citizen might do.” Kentucky v. King, 563 U. S….
But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.”
Florida v. Jardines, 569 U.S. __,6-7(2013)
The 5th Circuit opinion cites and quotes Sotomayor at length.
Sotomayor’s separate concurring opinion in United States v. Jones, decided January 23, 2012:
“I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
Some of the legal issues involved in the debates over electronic surveillance are nicely summarized in this 2004 law review paper (or maybe 2005 by the time it was published):
Peter P. Swire, “Katz is Dead. Long Live Katz,” Michigan Law Review
“The message of Miller v. United States was that information voluntarily revealed to a third party, such as a bank, does not enjoy a ‘reasonable expectation of privacy.’ The message of Smith v. Maryland, as explained by Justice Stewart, was that Fourth Amendment safeguards ‘do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes.’ The Stored Communications Act, first enacted in 1986 in the wake of Smith v. Maryland, permits the government to get access to the content of stored
communications from a communications provider without a warrant.34 Its complex rules allow access to the content of e-mail and other stored communications with less than probable cause.
What if the contents of ordinary telephone calls become stored as a matter of routine? This technological change would arguably, and plausibly, make the recording of the telephone call into a stored record subject to the Stored Communications Act. A search warrant would no longer be required.”
“Once telephone calls are routinely stored, Katz and Berger thus may be dead on their own facts. The courts might rely on precedent and avoid that result, but it would be increasingly unclear why stored records concerning telephone calls deserve constitutional protection while stored records concerning voice mail, e-mail, financial records, personal diaries, and locational information do not. A logical doctrinal result would be to overrule Katz and Berger explicitly.”
“The enactment of almost all privacy legislation affecting government surveillance has fit into two patterns. The first has been where the Supreme Court emphasized the importance of Fourth Amendment protections in an opinion and invited the Congress to fill in the legislative details. . . . Under Professor Kerr’s recommended approach of judicial abstention on new technologies, one would not expect to see future instances of this sort of judicial guidance to the Congress.
The second pattern is where the Supreme Court has held that the Fourth Amendment does not apply, with some Justices vigorously dissenting. The Congress has then stepped in, albeit with statutory provisions that are less strict than a warrant requirement.”
“There is no need, however, to choose one branch or the other. The history of privacy legislation shows intricate ways in which judicial holdings and language have shaped subsequent legislation. Dialogue and continued participation by both branches is likely to lead to better outcomes . . . ”
As an aside, this well known Felix Frankfurter quote is always good to keep in mind:
“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.”
this is a most interesting discussion.
Just outrageous. Transparently untenable decisions.
Sincere thanks for taking the time to link them – Appreciated, omphaloscepsis.