[Announce] GnuPG launches crowdfunding campaign

Robert J. Hansen rjh at sixdemonbag.org
Thu Dec 19 23:37:24 CET 2013

> Seems likely.  (Nice that some NSA activity has just been declared
> un-constitutional (glimpsed on TV)).

A district court judge found the program unconstitutional, but his  
decision is *extremely* controversial right now.  I would happily bet  
cash money on even odds that this decision will be overturned on appeal.

I normally don't like to go into detail about legal cases, but what  
the hell -- given the general interest in this matter, I hope people  
will forgive me for going off-topic.

The problem comes from a 1979 Supreme Court decision, _Smith v  
Maryland_ (often just called _Smith_).

A woman was receiving harassing phone calls, so the police asked the  
phone company for records about who was calling her.  The phone  
company turned these records over without a warrant.  The harasser was  
arrested and convicted.  He appealed his sentence, claiming that the  
police should have received a warrant.  The Supreme Court refused Mr.  
Smith's petition using logic sort of like the following:

     1. If you're asking the phone company to connect you to another
        phone number, the phone company knows at least your number
        and the number you're calling
     2. This isn't different from asking a friend to drive you to a
        place: your friend knows where he picked you up and where he
        dropped you off
     3. In #2, the police don't need a search warrant to get that
        information from your friend -- they just need a subpoena
     4. So in #1, the police shouldn't need a search warrant to get
        that information from the phone company -- they just need a

I personally find this logic simple, elegant and compelling.  That  
doesn't mean I think it's right: it only means I think it's a very  
serious opinion that is extremely difficult to refute.

The government has used this decision ("telephone metadata requires no  
warrant, only a subpoena") on an extremely large scale... such a large  
scale that it has created a very serious counterargument.  If the  
police are investigating a crime that happened Thursday night, asking  
your friends where they picked you up and dropped you off Thursday  
night is not an infringement of your privacy -- but asking your  
friends for *all* the times they've picked you up and *all* the times  
they've dropped you off over the last five years would certainly be  
seen as overreaching and as a gross privacy violation.  At least, such  
is the counterargument.

Judge Leon -- appointed by George W. Bush, a fact that will no doubt  
stun some people here -- was asked to choose between these two  
opinions.  Interestingly, he really didn't choose.  Instead he said,

     "... I cannot possibly navigate these uncharted Fourth
     Amendment waters using as my north star a case that predates
     the use of cell phones."

He didn't so much agree with the plaintiffs as he found that the  
_Smith_ decision was no longer relevant to modern life... and that's  
where the controversy occurs.  He's a district judge.  Most judicial  
ethicists would say that where SCOTUS has given clear and unambiguous  
guidance on an issue, as _Smith_ appears to, a district court has no  
business overturning SCOTUS's precedent.  (To which the immediate  
rejoinder is, "Yeah, because it would've been such a bad thing for  
some district judge to decide _Dred Scott_ was a stupid decision.")

This case is already being appealed.  At the appellate level judges no  
longer look at the facts of the case: they assume the trial court  
brought all the relevant facts to light.  Instead, the judges look at  
a much narrower set of questions: (a) was the trial fair?, (b) were  
the laws correctly applied?, and (c) were precedents correctly cited  
and followed?  No one is arguing that Judge Leon was unfair or that  
the law is being unfairly applied: the entire appeal will revolve  
around whether _Smith_ still governs.

My feeling is that the appellate court will decide _Smith_ still  
governs, reversing Judge Leon and approving the metadata program.  But  
I also feel it's very likely SCOTUS will grant cert and agree to hear  
the case, at which point SCOTUS will be revisiting their _Smith_  
decision and potentially giving new guidance for how to apply  
_Smith's_ reasoning to the modern day.

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