Derivative-consent doctrine and open windows: a new method to consider the Fourth Amendment implications of mass surveillance technology.

• Author: Brown, Alex

Contents Introduction I. Case Summary A. Facts B. Procedural Posture C. Second Circuit's Decision II. Surveillance and the Fourth Amendment A. Fourth Amendment and Exclusionary Rule Refresher B. Fourth Amendment Jurisprudence 1. The Legitimate Expectation of Privacy a. Establishment of the Rule b. When a Legitimate Expectation of Privacy Exists 2. The Third-Party Doctrine 3. The Property-Based Approach to the Fourth Amendment III. Clapper's Constitutional Claim Outcome IV. Calls for Reform A. Calls for Reform from the Supreme Court B. Academic Perspectives 1. Hosein and Palow Article 2. Harvard Law Review's Proposed Jurisprudential Solution for Mass Surveillance 3. How Electronic Information is Captured and a Property-Based Solution C. Author's Proposal: Derivative-Consent Doctrine V. Derivative-Consent Doctrine in Action A. The Phantom Activation of a Stolen Vehicle Detection System B. The Skype Friend Becomes an Enemy C. E-mail and Social-Media Messages Conclusion Introduction

Our lives are filled with open windows. Plenty of these windows are in our homes, schools, businesses, and other buildings, and they often have blinds on them that we can open or close, depending on our comfort with what outsiders will get to see within the buildings. Not all windows are on buildings. Some of them are in our pockets. Some of them sit on our desks. Some of them sit in closed compartments of our cars, ready to navigate us to a new destination. These windows are electronic devices, and they can provide a myriad of information about our lives. While we voluntarily provide information to these devices in order for them to perform the functions we desire, consider the possibility of these devices seemingly acting on their own accord. Also consider whether the contents of messages sent through e-mail or social media to designated recipients are truly private. Imagining the startling image of a government agent reviewing your most intimate messages to your significant other provokes fear.

This Comment is designed to determine when, and what kinds, of information should be reviewable by government agents through individuals' voluntary actions. In order to do this, Part I reviews a recently decided case, ACLU v. Clapper, (1) analyzing how the case would be decided as a Fourth Amendment issue, had the Second Circuit Court of Appeals decided the case on that basis. Part II outlines three categories of Fourth Amendment jurisprudence, which will provide a helpful background to readers new to Fourth Amendment issues.

Part III determines the outcome of Clapper using the Fourth Amendment jurisprudence reviewed in Part II. Part IV reviews proposals to counter the pervasiveness of mass surveillance in American society, some of which come from the Supreme Court as well as academia. I also propose a solution, further delineated in Part Five. The Comment ends with a summary of the topics discussed and final thoughts on the overall subject.

This Comment will show that the bulk collection of metadata from telephone calls and other electronic communications are permissible under the Fourth Amendment of the United States Constitution without a warrant. However, disclosing the contents of communications to government agencies and operating devices without the consent of their owner constitutes searches requiring a warrant.

1. Case Summary

   This Comment will begin by summarizing its subject case, ACLU v. Clapper. (2) Doing so provides necessary background but also demonstrates Clapper's relevance in the overarching issue of mass surveillance in the United States. Clapper provides a springboard into difficult but necessary discussions about the constitutionality of domestic surveillance programs. The Second Circuit's decision in Clapper also provided momentum for Congress to craft a legislative remedy for the federal government's metadata collection from telecommunications companies' phone records, a remedy which will be discussed further below as one possible non-judicial solution to mass surveillance, should society deem privacy and civil liberties to be a greater interest than security. (3)

   1. Facts

      Clapper decided whether the government may require telecommunications companies to transfer telephone metadata in bulk. (4) This begs the question, what is metadata? Defining what it is not provides a sigh of relief to many libertarians, for metadata does not include the voice content of telephone conversations. It does include other pertinent information, such as a call's length, the phone number the call came from, and the phone number dialed. (5) Occasionally, metadata reveals the identity of callers and the devices they use, through identity numbers related to phone equipment. (6) In other instances, how a call is routed through the telecommunications network may reveal a caller's general location, but when metadata provides this information, locational data is far less precise than that detected by cell sites. (7) Despite metadata's inability to replicate the most intimate information about a phone call--the contents of the conversation--it still may reveal a great deal of otherwise hidden information, such as intimate relationships, religious beliefs, perhaps even a person's mental health (all by identifying the individuals associated with phone numbers dialed, and the source of those numbers). (8)

      Judge Gerald E. Lynch, writing the Clapper majority opinion for the Second Circuit, acknowledged similarities between information gathered from telephone metadata and more traditional sources, like the addresses on an envelope. But he distinguished telephone metadata from traditional identifying information by emphasizing the "vast new technological capability for large-scale and automated review and analysis." (9) Though Judge Lynch does not state this outright, he is likely referring to intelligence services pooling vast quantities of metadata and then searching the metadata for individuals the intelligence community is interested in. Metadata is valuable for this task since, in a world closely connected by mobile phones, it is "virtually impossible" for individuals to avoid generating metadata through their normal routine. (10) After reviewing the importance and pervasiveness of metadata, Judge Lynch transitions to the facts.

      The federal government determined that it could gather metadata on the basis of section 215 of the Patriot Act. This statute allows the FBI Director or his designee to "make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." (11) A now-infamous Foreign Intelligence Surveill-ance Court (FISC) order required Verizon Business Network Services, Inc. to produce call records, on a daily basis, of all telephone calls made through its systems or services where one or both ends of the call are within the United States. (12) What makes this order infamous is that it was revealed to the world by ex-federal government contractor Edward Snowden in an article published by the British newspaper The Guardian. (13) The federal government later acknowledged that the Verizon order was a small part of a much larger program collecting bulk telephone data launched in May 2006. (14) This program began with an order, couched under section 215 of the Patriot Act, to produce "tangible things" that the federal government construed to mean telephone metadata. (15)

      The Government explained the purpose of collecting bulk metadata: to fight terrorism. (16) Phone numbers believed by the government to be associated with a foreign terrorist, based on a "reasonable articulable suspicion," were searched within a massive database containing metadata to yield phone numbers in contact with the suspicious phone number, called a "seed." (17) A search would follow of all numbers found in the metadata to be in contact with the seed number, and searches of "the contacts of contacts of contacts of the original 'seed'" telephone number occurred as well. (18) Responding to public pressure, President Barack Obama ordered the FISC to alter the telephone meta-data program in January 2014. (19)

      President Obama made two changes to the telephone metadata program. First, he only allowed searches of the metadata of phone numbers in contact with the seed, or first suspicious phone number, thus prohibiting searches of the "contacts of contacts of contacts of the original 'seed'" number. (20) Judge Lynch described this as limiting the searches to "two, rather than three" hops. (21) The second change to the telephone metadata program required an FISC judge determine that the National Security Agency (NSA) satisfied the reasonable articulable suspicion standard before allowing a telephone number to be searched within the telephone metadata pool. (22)

   2. Procedural Posture

      The American Civil Liberties Union (ACLU), New York Civil Liberties Union (NYCLU), as well as current and former Verizon customers, sued the government officials administering the telephone metadata program on both statutory and constitutional grounds. (23) The complaint, filed in the Federal District Court for the Southern District of New York on June 11, 2013, requested that the court "declare that the telephone metadata program exceeds the authority granted by [section] 215, and also violates the First and Fourth Amendments to the [United States] Constitution." (24) About two months later, the plaintiffs asked for a preliminary injunction, which would halt the government's collection of metadata, quarantine the records already collected, and prohibit use of the records to perform queries into the phone numbers and other identifying information associated with the plaintiffs. (25) The government moved to dismiss the complaint on...