Two Circuit Court and two Supreme Court cases about privacy in the electronic age are making the news today. One tests section 702 of the Foreign Intelligence Surveillance Act, another the Department of Homeland Security’s procedures for the “no-fly” list, and the two in Supreme Court, resulting in one opinion, a very important precedent for Fourth Amendment rights regarding smart phones.
In the first case, the section 702 test of FISA, the court wrote an opinion to satisfy the outcome: the detention of a would-be terrorist caught in a sting. Convoluted by the Bush Administration surveillance tactics that went outside the law, and then for which the FISA Amendments of 2008 were made to codify, the failure of this case would appear to be failure of the defendant’s counsel to choose the right hook upon which to hang the case. It seems as if the Constitutional hook of no “ex post facto” laws should have been a part of the pleadings. Instead the court used the “national security verses civil liberties” balance to uphold the searches under section 702 that uncovered this proposed terrorist attack. A different set of circumstances or defendant might have resulted in a different decision.
The “no-fly” list decision is a “no-brainer.” Basic principles of fairness render lists that the Department of National Security creates of names of individuals not allowed to travel on airplanes without transparency, correctability or oversight a violation of fundamental due process as well as a challenge to the classic case on the Constitutional right to travel among the states, Shapiro v. Thompson. This practice is one of the most glaring examples of how arbitrary and capricious government action can be, why resort to the courts is necessary for the maintenance of basic constitutional rights and how existing laws, such as FACTA, offer federal agencies plenty of examples of how to do administrative processes that implicate privacy properly.
The two cell phone cases came to the correct conclusion. Law enforcement search of the contents of a cell phone requires a warrant. A cell phone as a device might well fall under the “plain sight” exception to Fourth Amendment jurisprudence but the Court was absolutely correct to distinguish the data from the device. Moreover, the recognition that this data, while digitized and carried on the person, is the equivalent of 18th century notions of “personal effects and papers” is a critical statement looking forward to the 21st century. The clarity of this case brings to mind the 1967 Katz v. U.S. case that brought telephone communications under the Fourth Amendment umbrella not only for establishing a clear rule but also for making the connection between electronic communications and privacy. Technology does not obviate those foundational rights.