Top US Surveillance Lawyer Argues That New Technology Makes The 4th Amendment Outdated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

Filed Under: 4th amendment, mass surveillance, nsa, odni, privacy, robert litt, surveillance, virus scanning

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  1. identicon
    Anonymous Coward, 22 Dec 2016 @ 12:04pm


    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.

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