Surveillance, Legal and Otherwise

 A New Jersey Court recently held that a "communication data warrant" was insufficient to compel Facebook to hand over a user's posts.  Rather, under New Jersey's Wiretap and Electronic Surveillance Control Act, they would require a "wiretap" order.  While both orders are "warrants" as required by the Fourth Amendment to the US Constitution, under NJ law the standards and permissions are different for the two orders.  Said another way, it is the intention of the New Jersey legislature that surveillance in (near) real-time is more intrusive than a mere search warrant and must be more limited.  The intent of the law is to resist abuse, not only by NJ investigators but also by the federal government.

While the US Code contains no such explicit distinction, both law and precedent require that warrants be explicit as to what methods may be employed and what evidence is sought.  A warrant is not a carte blanche, a license to do anything the officer wants.  In practice judges expect law enforcement to use the "least intrusive means" to investigate.  

Governments around the globe, and law enforcement in particular, employ surveillance to detect and investigate communications that they wish to discourage.  Some, like ours, recognize the potential for abuse and seek to resist it.  None absolutely eschew its use. In some authoritarian states it is routine, a means of exercising power and control over the populous.  

The most frequent justifications for surveillance are crime, specifically CSAM and terrorism.  The rules are often "collect everything, forget nothing, admit nothing."  Data collected for legitimate purposes constitutes a temptation, not to say an invitation, to other uses.  

While the US Constitution requires probable cause for both searches and seizures, in practice seizures are routine and warrants are required only for searches.  While under the Constitution the test is "reasonableness," in practice and precedent the threshold for requiring a warrant has become whether or not the subject has an "expectation of privacy;" reasonableness is no longer even considered.  

In the US the requirement for a warrant is routinely bypassed by purchasing "surveillance as a service" in the open market.  Investigators simply pay a small fee to so called data brokers.  This is much more efficient than creating a government database.  

In summary the protection against unreasonable search and seizure guaranteed in the Fourth Amendment to the US Constitution have been whittled away.  While there is little evidence that the current administration is engaged in massive surveillance, it happened under the GWB administration.  There is little left to protect us against abuse by future administrations.   

On the "Expectation of Privacy"

In assessing the "search and seizure" of personal data by law enforcement, modern courts have applied the test of "reasonable expectation of privacy." This test implies that if the citizen has used his data in such a way that exposes it to others, for example, used it in a business transaction, then law enforcement may use it against them without restriction.  

The Framers never conceived of this test and might well be surprised by it.  Rather, the tests that they wrote into the Bill of Rights were "reasonable" and "probable cause."  If a search or seizure is "unreasonable," then law enforcement must have a warrant from a court.  The test for the issuance of a warrant is probable cause to believe that a crime has been, not will be, committed.  

These are constitutional tests and they are independent of how the citizen uses his personal information or what his expectations are.  He should not need to do, think, or "expect" anything in order for them to apply.  The tests apply to the behavior of the state, not the expectation of the citizen.  They restrict what the state, the police, may do.  The Bill of Rights places the burden on the state to show that its behavior is lawful, not on the citizen to demonstrate a right or "expectation."  Note that while information obtained in violation of these tests may not be used to convict the citizen of a crime, it is routinely used to investigate, threaten, and coerce, the very things that the Framers feared from a powerful government.  

In some cases, the state, with the tacit consent of the courts, pretends to get a warrant for all searches.  It pretends that it can legitimately collect anything as long as it does not look at it.  However, the Bill of Rights does not limit the tests to searches but also to "seizures." The government operates a data center in Bluffdale Utah.  In a world in which one can put a terabyte of data in one's pocket for $100, the government requires 26 acres of floor space to accommodate the data that it collects world-wide on citizens' communications.  It claims that this seizure is not "unreasonable" and that it does not need a warrant unless it "searches" or looks at the data.  By what reasoning can the arbitrary collection of so much data be called "reasonable?"

I am not hopeful that this view will be argued before the courts or that, even it argued, it will change much.  Nonetheless, I had to argue it.