DoJ: If we can track one American, we can track all Americans

http://arstechnica.com/tech-policy/2013/10/doj-if-we-can-track-one-american-we-can-track-all-americans/

by shawndumas • 13 years ago

111 28 13 years ago

Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”

This is a very shitty ruling that denies basic mathematical fact: a graph of nodes contains data that simply isn't present in a lone node.

Edit: The difference actually springs from a qualitative difference in the search. In the case of a lone person, the government is seeking information about that person in a vacuum; in the case of hoovering up millions of records, they're explicitly looking for interconnections, which is different in kind than if they were looking at each record in isolation, and just happened to have millions. The FISC court is essentially misrepresenting the nature of the bulk search by pretending it's merely many copies of an individual search, rather than a different type of search, altogether.

devx• 13 years ago

Why is this court even allowed to make such ruling anymore? Take the case straight to the Supreme Court. FISC is a joke that needs to be immediately disbanded.

CamperBob2• 13 years ago

Yeah, it's not as if the FISA court judges are all appointed by John Roberts himself.

Anyone who isn't outraged by this is not only not paying attention, they're just a plain old moron.

rayiner4• 13 years ago

You don't want this to go to the Supreme Court yet. You won't like he outcome. This needs to wait until there is at least an articulable alternate framework for pro-privacy folks to point to. When you're inventing rights out of thin air, as any "right to privacy" justices would be doing, you need more to hang your hat on.

neilk2• 13 years ago

Yeah, I read the "Opposition" too, looking for what Ars was talking about - I assume that is the section that prompted their headline.

http://cdn.arstechnica.net/wp-content/uploads/2013/10/Opposi...

But, is this argument flawed in a legal sense? What other legal principle says that obtaining the business records (i.e. phone records, web browsing history) of one person is different from millions of people?

I have an intuitive sense that (a) it's bad because it makes a mockery of limited government (b) just as deepening a search into one person requires more justification (probable cause, etc), widening a search ought to require similar special justification.

DerpDerpDerp4• 13 years ago

My point is much more narrow: that the collection of millions of records to make a graph of relationships, to scan for patterns in the graph is fundamentally a different kind of search from obtaining the records of activity a lone person to specifically look in to their actions.

My edit elaborated on this: the mass record gathering is not fundamentally millions of lone investigations happening in parallel, but a fundamentally different kind of investigation; they're collecting the edges of the graph, not merely many nodes instead of a single node.

The court failed to rule on the relevant question, through what seems like ignorance of the underlying mathematics/information theory involved in the situation.

Essentially, the government ruled on "What if you collect all the nodes for the graph, instead of just one node?" rather than "What is the proper manner (if any) to collect the edge information of the graph?" It's not obvious that the government has an authority to gather those relationships (the connections between specific nodes) in bulk, and that it is a different kind of search, fundamentally, from looking at a specific node (or many of them in parallel). What the information is going to be used for is relevant to the question of their obtaining it.

In that sense, their ruling is bad because it's not even answering the right question.

rayiner4• 13 years ago

The FISC ruling ignores that fact because its simply not relevant to a 4th amendment analysis. The fourth amendment is rooted in an expectation of privacy. If one person can't reasonably expect the police not to drive by and look at what's on his lawn, a 4th amendment issue doesn't suddenly arise just because they canvas the whole block. The amount of information yielded by a search is simply not one of the elements of the 4th amendment. Maybe it should be, but it isn't, and the FISC isn't entitled to just add that to the analysis out of thin air.

DerpDerpDerp4• 13 years ago

It's entirely relevant if the expectation of privacy includes the information extracted, but not the underlying individual pieces, but that's somewhat tangential to why I think it's problematic.

The 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment doesn't expressly mention privacy, but it does talk about the specificity of the search - and I'd argue that using instruments meant for the collection of lone records to gather entire sets of social information synthesized from those records likely violates both the specificity (they're fishing, not being targeted) and may violate the reasonable requirement.

It's also a possible violation of the First Amendment, as it has an inherently chilling effect on the right to free association if the government is constructing a database of all your interactions with people, for the purpose of later deciding what you did wrong.

sillysaurus2• 13 years ago

Has there ever been a court ruling you've disagreed with? I can't think of one.

timsally• 13 years ago

You're the professional, but to my understanding your characterization that the amount of information yielded by a search is a 4th amendment analysis "out of thin air" isn't accurate. Alito wrote in his concurrence in Jones v. United States:

Justice Alito then evaluates the GPS surveillance here, noting that “devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” “[T]he best we can do in this case,” reasons Alito, “is to apply existing Fourth Amendment doctrine” and “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Alito at 13. Under this inquiry, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” because “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.” http://www.concurringopinions.com/archives/2012/01/united-st...

It seems to me that Alito is saying that the amount of information gathered in Jones is relevant to 4th Amendment analysis. Specifically: "society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period". Three other justices joined with Alito on this concurrence.

I'm not professionally trained in this this domain, so I might be missing something. Can you reconcile Alito's concurrence with your position? Yes it was not the opinion of the Court, but surely a concurrence clears the "out-of-thin-air" bar?

bsullivan01• 13 years ago

IANAL, but could one make a case that our freedom of association is being violated by the Feds knowing every person we talk to, text, meet (location data) etc?

schoen• 13 years ago

EFF's new lawsuit against NSA argues that the freedom of association is violated by this surveillance.

https://www.eff.org/cases/first-unitarian-church-los-angeles...

pfortuny• 13 years ago

Conspiration to kill the president. A single person cannot conspire, so that EX NIHILO a possible crime appears needing at least two people. Each of them alone may noy have a fourth ammendment interest BY HIMSELF (it is difficult to accuse someone of conspiration without a partner...) . A conspiarcy takes two to exist. It is not so easy as they state it. And it is because... people are mostly relations, not monads. It is not ex nihilo, it is ex essentia personae why the mutual interest may appear.

Edit: Imagine: we are searching your house looking for evidence of conspiracy. But you are the only suspect...WTF?

pyre• 13 years ago

Imagine: we are searching your house looking for evidence of conspiracy. But you are the only suspect...WTF?

Isn't it possible that they suspect that you have partners, but don't know who they are?

csandreasen• 13 years ago

The opinion is rather dense and I don't expect everyone will take the time to read it. In the interest of promoting discussion, here's what Ars Technica said:

"The government’s response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person’s information without a warrant, it can monitor everyone’s information, “regardless of the collection’s expanse.” Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court."

... and here's the paragraph of the opposition document that they are quoting:

"(U) Third, Moalin lacks standing to assert the interests of and service provider, or the interests of other persons whose telephony metadata may have been collected along with his own, regardless of the collection's scope. Fourth Amendment rights are "personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched." Steagald v. United States, 451 U.S. 204, 219 (1981); accord Minnesota v. Carter, 525 U.S. 83, 88 (1998) (a person claiming Fourth Amendment protection "must demonstrate that he personally has an expectation of privacy in the place searched"). Accordingly, "a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights." United States v. Payner, 447 U.S. 727, 731-32 (1980); see also In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (rejecting argument that a subpoena was unreasonable under the Fourth Amendment because it "may make available to the grand jury [money transfer] records involving hundreds of innocent people"); United States v. Rigmaiden, 2013 U.S. Dist. LEXIS 65633, at 38 (D. Ariz. May 8, 2013) (United States did not violate defendant's Fourth Amendment rights by acquiring 1.8 million IP addresses from Verizon); Li, 2008 U.S. Dist. LEXIS at 17 (because the court concluded that the defendant lacked any reasonable expectation of privacy in the evidence obtained from the third-party service provider, "the court also finds that defendant does not have standing to seek suppression of the evidence"). Therefore, neither Moalin nor his co-defendants have standing to challenge the United States' collection from the service provider, regardless of the collection's expanse. See In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, 2013 WL 5307991, at 5 (For. Intell. Surv. Ct. August 29, 2013), (hereinafter "FISC's August 29th Memorandum Opinion" or "In Re Application of FBI") ("Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.").

DoJ: If we can track one American, we can track all Americans

Related Stories