> It really is no different than the meta data that the NSA is collecting and most likely we will see defense of the gathering using similar rebuttals, namely YOU have a right, the license plate/car/phone/database does not.
You're mis-characterizing the rebuttal in both cases.
1) With metadata the rebuttal is that the Constitution refers to the "right of the people to be secure in their persons, houses, papers, and effects..." There is a legitimate argument that AT&T's records about when you used their network is not your papers or effects. You didn't create the record, AT&T did. You don't usually even have access to the information, AT&T does. It's not something silly like "the phone doesn't have a 4th amendment right."
2) The rebuttal for gathering information from cameras is that the 4th amendment has never extended to what the government can observe about you in a public place.
The 4th amendment doesn't mean "I have a right to have the government not track or monitor me without a warrant." It says exactly what it means: the police can't search your person or your house, your papers or effects, without a search warrant supported by probable cause. The farther you get from that plain language, the more tenuous your argument becomes.
Vis-a-vis the Supremes, at least Sotomayor has questioned whether it might be necessary to rethink at least the third party doctrine, which is the basis for (1): http://www.abajournal.com/magazine/article/the_data_question.... I don't think anyone any time soon would think about revisiting the rule for plainly visible activity in public spaces, which is the basis of (2).
> With metadata the rebuttal is that the Constitution refers to the "right of the people to be secure in their persons, houses, papers, and effects..." There is a legitimate argument that AT&T's records about when you used their network is not your papers or effects. You didn't create the record, AT&T did. You don't usually even have access to the information, AT&T does. It's not something silly like "the phone doesn't have a 4th amendment right."
You caused the record to come into being by making or receiving the phone call. No human intervention was required on the carrier's part. Your action triggered an automated response by a machine. The records are about you, were generated by your actions, and exist pursuant to a service contract you hold. To say it is not "yours" is to cherry-pick a certain definition of "yours:" one based solely on who holds the property rights. But there are other reasonable definitions of "yours." Ordinary English usage illustrates this. I could talk about "your records at the phone company," and nobody would find my turn of phrase the slightest bit odd, even though you don't own those records. It should be noted that Constitutional interpretation generally looks to the ordinary meaning of words first. Indeed, in Katz, the Court held:
"The existence of a property right is but one element in determining whether expectations of privacy are legitimate."
By a narrow reading of "their persons, houses, papers, and effects," phone data might not be your papers or effects. However, one ought not read the 4th amendment narrowly. The Supreme Court said in Griswold:
"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy...These cases bear witness that the right of privacy which presses for recognition here is a legitimate one."
The cases cited in Griswold and those which cite it lay out a doctrine of broadly interpreting privacy rights provided by the 4th and other Amendments. Words like "their" should not be construed narrowly to limit a person's privacy rights.
Instead, we have the doctrine of "reasonable expectation of privacy." That is, where a person has a reasonable expectation of privacy, 4th Amendment protections come into play. For a telephone call, one should reasonably expect the phone company to generate logs, if only for billing purposes and aggregated, anonymized data analysis. However, one would not reasonably expect the sum total of their personal call history to be available to the government.
> The rebuttal for gathering information from cameras is that the 4th amendment has never extended to what the government can observe about you in a public place.
This is not true. See, for example, US v Jones (the GPS tracking case). Jones strengthened the doctrine of "reasonable expectation of privacy," enshrining a new application in public places. I expect that we'll see a case about facial recognition, license plate tracking, or something similar where the government assembles a database of your movements in public. Alito's concurrence in Jones reads a prelude to these future cases:
"In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. 10 Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap...But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period."
I'm trying to tie concepts to the wording of the 4th amendment without resorting to saying: "This is the precedent and that's that." Because the precedent is clear: Smith v. Maryland makes it okay to collect phone metadata, done.
To your general point about narrow versus broad readings: I didn't say there wasn't a plausible broad reading. I was characterizing the legitimate, plausible narrow one. You claim I'm "cherry-pick[ing] a certain definition of 'yours'" but that's precisely what you do when you're characterizing one side of an argument.
As for plausibility--you cite a dissenting opinion, a concurring opinion, and one of the most handwave-y opinions in the history of the Court (Griswold)... The Supreme Court could someday find a broad privacy protection in the "penumbras" and "emanations" of the 4th amendment, and it will be equally handwave-y when they do.
Finally: U.S. v. Jones was based on meat and potatoes Constitutional law: Scalia's majority opinion focused on the physical intrusion necessary to install the GPS tracker.
> Because the precedent is clear: Smith v. Maryland makes it okay to collect phone metadata, done.
I should have brought up Smith. My mistake. My opinion of Smith is basically this: It's at odds with other cases, and its logic rests on a much older picture of the technology. Unfortunately, I don't have time to write a lengthy prediction of how Smith will someday be eroded or overturned. But for now I'll say that I consider Smith to be an outlier with respect to the broader trends in 4th Amendment law I'm attempting to highlight.
> You claim I'm "cherry-pick[ing] a certain definition of 'yours'" but that's precisely what you do when you're characterizing one side of an argument.
Fair enough. My intention in cherry-picking a different definition was to offer an alternative to the one you presented, simply to show that it's not so cut-and-dry. Perhaps I should have been more explicit about my rhetorical intentions there.
> As for plausibility--you cite a dissenting opinion, a concurring opinion, and one of the most handwave-y opinions in the history of the Court (Griswold)
All of which are valid citations. If you were a SCOTUS judge, you'd have the right to take these citations with a grain of salt. But their existence still helps illuminate how the justices think about privacy.
By the way, which one was the dissent? (Not doubting you, just seeking clarification.)
> Finally: U.S. v. Jones was based on meat and potatoes Constitutional law: Scalia's majority opinion focused on the physical intrusion necessary to install the GPS tracker.
Yes it did, which is why I quoted Alito's concurrence as a roadmap for the future.
You're mis-characterizing the rebuttal in both cases.
1) With metadata the rebuttal is that the Constitution refers to the "right of the people to be secure in their persons, houses, papers, and effects..." There is a legitimate argument that AT&T's records about when you used their network is not your papers or effects. You didn't create the record, AT&T did. You don't usually even have access to the information, AT&T does. It's not something silly like "the phone doesn't have a 4th amendment right."
2) The rebuttal for gathering information from cameras is that the 4th amendment has never extended to what the government can observe about you in a public place.
The 4th amendment doesn't mean "I have a right to have the government not track or monitor me without a warrant." It says exactly what it means: the police can't search your person or your house, your papers or effects, without a search warrant supported by probable cause. The farther you get from that plain language, the more tenuous your argument becomes.
Vis-a-vis the Supremes, at least Sotomayor has questioned whether it might be necessary to rethink at least the third party doctrine, which is the basis for (1): http://www.abajournal.com/magazine/article/the_data_question.... I don't think anyone any time soon would think about revisiting the rule for plainly visible activity in public spaces, which is the basis of (2).