Reading over the 4th Circuit's new mosaic-theory case, on the Baltimore aerial surveillance program, I'm struck by it being different from the mosaic theory of the Mass SJC in McCarthy, the ALPR case
A thread.
The two opinions start from similar premises. They both take the view that the 4th Amendment has a mosaic theory, and that, if enough information is revealed about a person, a search is deemed to occur.
The big question is always, how do you draw that line? If I'm interpreting the opinions correctly, the CA4 and Mass SJC draw the line *very differently.*
In McCarthy, the court eschewed looking at the *capability* of the system to reveal information (however 'the system' is defined), and instead asked: What specifically was revealed about this person? If the specific database query revealed nothing much, no search occurred.
As I read the new CA4 decision on the AIR program, the CA4's analysis is more holistic: Does the program, in combination with other databases and human powers of deduction, generally have the capacity to reveal the whole of a person's movements? If so, its use is a search.
If I'm reading the two decisions correctly, the Mass SCJ approach to the mosaic theory is query-by-query; the CA4 approach is program-by-program. Or so it seems to me. /end
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Major 4th Amendment ruling from the en banc CA4: The specifics of Baltimore's aerial surveillance program -- how much it showed, and how long data was retained -- collected enough information that it is a 4A search and unconstitutional. #N s3.documentcloud.org/documents/2097…
This is a strong endorsement of the mosaic theory, with the court accepting that "short term" surveillance is fine but that "long term" is not. If the judges feel the surveillance is revealing a lot of information about people, a line is crossed and the Constitution is violated.
They base their conclusion in part on an article that the plaintiffs submitted showing that if you have a view data points about where someone's phone goes, you can probably figure out who they are. (Yes, most people are at home at night.)
In 2005, it was still the case that a very common view on the right was that the Supreme Court's role should be narrow. Roberts' focus on judicial restraint was a popular view in conservative legal circles.
It's hard to overstate how much the quick rethinking needed to coalesce around opposition to Obamacare changed conservative legal views. Opposition to Obamacare -- not just as policy, but belief in its unconstitutionality -- became a sort of litmus test of being conservative.
On Thursday, the Supreme Court will decide whether to hear two computer border search cases: US v. Cano, from a DOJ cert petn; and Merchant v Mayorkas, the ACLU's challenge to border search policies.
Notably, the docket page for Cano had listed the petn as "rescheduled" on June 15. Yesterday, a new docket entry said it has been distributed for consideration for Thursday -- the same day as they're considering Merchant. Hmm.
Ooh there's another one. Thursday is looking like a big day. Although we won't have any idea what they decided until Friday or Monday at the earliest, I gather.
Given technological and legal change in the last 20 years, the biggest problem with the Stored Communications Act is not how little protection it offered contents, but how it excludes most non-content data from protection at all.
The SCA is often criticized for not protecting all contents of communications (like emails) with a warrant protection. Big problem in theory, but less so in practice: 4th Amendment caselaw requires warrants, and providers won’t turn over contents w/o a warrant as a result.
The bigger problem, I think — one that gets little attention — is that the statute is only designed to give rights in non-content data for messaging (ECS) and cloud storage (RCS) services. But today websites store a lot of data about users outside those services.
A little inside baseball, but one of the many puzzling aspects of the Amy Chua situation at Yale (which every “New York”-titled publication is required to cover) is the apparent sense that she has nearly unbounded abilities to get students top clerkships.
I can’t tell if it’s just Yale student lore, or if it’s real. If it’s real, perhaps reflecting Yale’s weird limit on letting students prove themselves on blind-graded exams, so they feel they have to rely on faculty connections willing to go to bat for them? I don’t know.
And if it’s not real, where does the impression come from?
Reporters looking into the Schiff and McGhan investigations should be making sure that when they report about “subpoenas,” they actually mean subpoenas and not 18 U.S.C. § 2703(d) orders (which are served like subpoenas). The latter are a lot more invasive than the former.
To make a long ECPA short, subpoenas are largely unregulated but can’t (in the Internet context) get the govt much. An account name, IP addresses it was assigned, not much else. /1
But 2703(d) orders are more like warrants: a judge needs to sign off on it and its showing of cause. And it can get all non-content transactional records of the account, like who you contacted and when. /2