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Thursday, January 16, 2014

Privacy and a Tale of Two Courts

The Federal Bench.  Judge Richard J. Leon serves on the bench of the United States District Court in the District of Colombia; Judge William Pauley III serves on the bench of the United States District Court in Manhattan.  These judges have issued opinions in two cases that impugn tactics employed by our National Security Agency that were brought to light last summer by the now-expatriated Edward Snowden.

Judge Pauley's decision gives the NSA a pass to continue gathering evidence despite the effect on our collective or our individual rights to privacy; Judge Leon's decision reigns the NSA in on their tactics.

What the NSA is Doing.  Legal expert and law blogger Johnathan Turley put it bluntly and accurately in his recent post analyzing Judge Pauley's recent privacy decision in ACLU vs Clapper.  He characterizes these cases as challenging the NSA from collecting, "telephony meta-data from almost every phone call or any other electronic communication you'd care name in this country in the seemingly limitless war on terror."

Since Edward Snowden, the former NSA contractor, dropped the bomb on the world last summer that NSA was tracking not only cell phone meta-data, but emails and all other forms of electronic data, it has become common knowledge that anything anyone does on-line or electronically, anywhere in the world, can and is being stored.  And if your electronic fingerprints are being stored, they can be tracked by the NSA.

The SCOTUS Precedent.  Turley has a point; it was not 9/11 that began the erosion of our rights to electronic privacy, it was the 1979 SCOTUS decision in Smith vs Maryland.  In that case, the SCOTUS ruled that individuals do not have a reasonable expectation of privacy in the details  of our telephone calls, [i.e. call points, call destinations, time of calls, etc.] and that law enforcement can obtain this data from third parties like the telephone company.

Judge Pauley's Opinion.  This case is ACLU vs Clapper.  The opinion cites to the Smith vs Maryland precedent to basically grant NSA a pass to continue collecting our meta-data because none of us really can reasonably maintain an expectation of privacy in anything we do electronically, at least in the form and manner of a communication.  So the 4th Amendment lost out in this case; the question is, did we?

Judge Leon's Opinion.  The other case is Klayman vs Obama where Judge Leon took a stand for privacy by enjoining the federal government from further data collection of the two named individuals and their cell phone calls and other electronic transmissions.  Then, he promptly stayed his injunction to provide the feds the opportunity to appeal his ruling.  See, this is what happens in federal court in the District.

Two cases involving government snooping with disparate results.  One or both of these cases will grind onward in the appellate courts as the notion of privacy in our post-modern world continues to evolve.

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