Top US Surveillance Lawyer Argues That New Technology Makes The 4th Amendment Outdated

from the wanna-try-that-again,-bob? dept

Reuters has an interesting piece looking at how many experts are concerned that mass surveillance efforts by the federal government are making a mockery of the 4th Amendment. The focus of the article is on the scan of all Yahoo email that was revealed back in October, but it certainly touches on other programs as well. The concern is easily summarized by Orin Kerr:

“A lot of it is unrecognizable from a Fourth Amendment perspective,” said Orin Kerr, a former federal prosecutor and Georgetown University Law School expert on surveillance. “It’s not where the traditional Fourth Amendment law is.”

But, have no fear, the General Counsel of the Office of the Director of National Intelligence, Robert Litt, says there’s a reason for that, and it’s all technology’s fault. We’ve covered Litt and his somewhat nutty views on the 4th Amendment and surveillance in the past, so the following isn’t new. But Litt’s main defense of basically all of the NSA’s various abuses and mocking of the 4th Amendment is “it’s technology’s fault.” He’s quoted twice in the article, and both times, it’s all about the tech. First up, an argument that the traditional 4th Amendment doesn’t apply, because technology:

“Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,” said Litt.

Later he is mentioned as making a similar argument.

ODNI’s Litt wrote in a February Yale Law Review article that the new approach was appropriate, in part because so much personal data is willingly shared by consumers with technology companies. Litt advocated for courts to evaluate “reasonableness” by looking at the entirety of the government’s activity, including the degree of transparency.

Indeed, we’ve pointed to Litt making similar arguments many times in the past and it all comes down to “Well, people share this stuff with Facebook/Google/Yahoo, etc.,” so what’s the big deal?

The problem is that this argument is complete nonsense. People are making the decision to share such information with these services in exchange for the value that the service provides them. They have no such “user agreement” with the US government. In fact, the “user agreement” we have with the US government is the Constitution that has a neat clause (also known as the 4th Amendment) that such searches are not allowed. Don’t like it? Too bad. Those are the rules.

Litt’s comments are beyond dishonest. It’s one thing to compare the fact that people willingly give information to tech platforms, but that’s completely different than saying that people are then okay for everyone’s communications to be bulk scanned by the intelligence agencies “just in case” — and all done without a warrant. The fact that technology has changed doesn’t change the Constitution. Litt took an oath to protect the Constitution and he seems to, instead, be focused on doing exactly the opposite: coming up with sleazy rationalizations for why he’d give his stamp of approval on blatantly unconstitutional activity.

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Comments on “Top US Surveillance Lawyer Argues That New Technology Makes The 4th Amendment Outdated”

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33 Comments
That One Guy (profile) says:

Dishonest, but fully expected. After all…

“It is difficult to get a man to understand something, when his salary depends on his not understanding it.” – Upton Sinclair

Simply replace ‘salary’ with ‘ability to engage in mass, indiscriminate surveillance’ and it’s pretty easy to see why he’s so insistent in attacking and undermining those pesky ‘Constitutional rights’.

Michael (profile) says:

“Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,”

Why not this?

Checking your DNA against crime scenes in the same way that your doctor checks babies for genetic abnormalities – that should not be considered a search requiring a warrant for Fourth Amendment purposes.

Was there ever a day when the people in charge of our law enforcement agencies actually cared about upholding the constitution?

Anonymous Coward says:

The difference is that Google, Yahoo et Al. scan email to decide what adverts to try and send people, and people have the option of addblocking, encryption, or using a difference service to avoid this scanning. With the government, the scanning is used to send men with guns to batter down your door, and they are also arguing that the people cannot use effective encryption to protect their privacy, and they cannot defend themselves from the men with guns. Further a mistake by the government will ruin someones life, or even end their life, which is why targetted searches, after showing probale cause, is built into the constitution.

It is also worth reminding the governments of the world, that all this data they are gathering only came into when the Internet became popular, and that encryption restores the balance more towards where it was when people mainly communicated by face to face conversations, and policing relied on officers having good relationships with the communities that they served.

kenichi tanaka (profile) says:

Finally, someone who gets it. Prosecutors, the Justice Department and law enforcement want to ignore any part of the constitution that grants anyone any rights. They would be happy if the Constitution and the Bill of Rights were simply repealed, et al.

| The 4th amendment doesn’t become null and void just because you have an easier time violating it. |

Anonymous Coward says:

Re: Re:

The rights under the constitution bar what the government is allowed to do to the citizens, not what the citizens are allowed to do to each other.

Telling me that I’m violating your 1st Amendment rights by telling you to shut up because I don’t like what your saying is laughable. I am not the government or a member thereof and therefore I can tell you to shut it if I want. If I try to force you to shut your trap I may be violating other laws (assault, battery, etc) but I’m not violating the 1st.

Same goes for the 4th. If I’m snooping thru your phone or email without a warrant, I may be committing theft, trespassing, or even a DMCA violation, but I’m not breaking your 4th Amendment rights. But if someone from a government agency is doing it, then damn right they better have a warrant.

Anonymous Coward says:

Re: Re:

He might stay on as part of a Trump administration, or have an equally dishonest lawyer replace him, since it does not appear that Trump is particularly opposed to bulk surveillance. Recent reports indicate Trump at least considered appointing Carly Fiorina, a known surveillance hawk, for Director of National Intelligence.

Regardless of whether Mr. Litt continues to be employed by the government after Trump takes office, his current position gives his statements considerable weight when he is quoted in the press, and will likely continue to give them weight even when the citation is "Mr. Litt, who served as counsel to the DNI during list-of-years" rather than the current citation of "Mr. Litt, counsel to the DNI". That makes his pro-surveillance rhetoric much more dangerous to civil rights than if it were said by a lawyer with no name recognition and no history of holding high office.

DannyB (profile) says:

4th Amendment doesn't protect from computer searches?

"Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes," said Litt.

Dear Mr. Litt,

If the police send an autonomous robot to break down your door and search your home, that is not a violation of your 4th amendment rights. After all, it is a computerized search. Like searching your emails or scanning for viruses, it is much more efficient than manually searching your home. With an army of robots, searching of homes can be routinely done on a large scale. Because this is qualitatively different than abuses of your constitutional rights when done by humans, it should not be considered a violation of your rights. More importantly, in your own words, it should not require a warrant for Fourth Amendment purposes.

Sincerely,

Anonymous Coward says:

It's time

It’s time to expose all the personal effects and writings of Gov. employees in positions of power, to the general public. They expect our trust but deny us the opportunity to verify the basis for that trust. They are therefor suspect and deserve scrutiny much more then we the public do, for the power granted them. So Mr. Litt its time to open the doors for inspection, lets see what you have been up to.

ItsAboutThePledge says:

An excercise in democracy

Perhaps once a month, in Unison these members of government should be required to stand in front of citizens of the U.S. and pledge their allegiance and understanding of the constitution, then be asked by members of the public questions about the constitution, preamble and bill of rights.

If they fail to understand what they pledge themselves to, then boot them…

Anonymous Coward says:

Re: Third Party doctrine

The third party doctrine is useful when it protects someone from voluntarily turning over information to law enforcement. The distortion is that law enforcement have extended the idea so that they can demand information without bothering to get a warrant, or having any reason other than fishing. This changes the handover from being voluntary, to being compelled.

Make it so that the police need a warrant before they can demand information, and they lose the ability to go on fishing expeditions.

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