Leonardo Angiulo: How Much Privacy Did You Lose Last Week? A Lot.
Monday, June 10, 2013
At least three times in the last week I read the news and said, “wait . . . what?” I may have literally said those words out loud when I heard about: 1) the Supreme Court permitting the seizure of DNA upon felony arrest, 2) the mass collection of telephone records known as metadata every three months for the last seven years and 3) the harvesting of electronic communications by our intelligence agencies in a program known as “PRISM.” Of these three issues, the revelation that Government entities may or may not be collecting emails even as we write them is arguably the most ground breaking.
#1: DNA swabs now okay
For years, people have been fingerprinted and photographed when they are arrested. This is true for everything from disturbing the peace to bank robbery. The Supreme Court's decision in Maryland v. King means that as of June 3, 2013 you can add a DNA swab to the list of booking procedures you could endure if arrested for a felony. The logic goes that because the personal invasion of swabbing a cheek for DNA is slight, and having a DNA database helps solve crimes, there is no constitutional violation. While some people may see this as startling, others may see it as an extension of fingerprinting and a common sense updating of law enforcement's tool box.
#2: Metadata from your phone records
In a similar way the recent disclosure of metadata collection from Verizon, including inbound and outbound call logs, sounds like an extension of an old investigatory tool called a pen register. The statutory authority for these call logs defines pen registers in 18 USC §3127 as only recording where communications come from or go to. The law explicitly declares pen registers shall not include the contents of telephone communications.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTWith this definition in mind, the recent press release from the Director of National Intelligence on this topic makes a great deal of sense. There is no question that the program initially disclosed in the UK's newspaper The Guardian does not listen in on people's phone calls. We can believe this because the use of pen registers by law enforcement agencies has been going on almost as long as there have been telephones and it has never been about content. Just connections.
#3: Reading your emails
What seems to be the newest addition to law enforcement's stable is the program referred to as “PRISM” by members of the press reporting on it. These reports cite certain leaked materials as proving the existence of a sweeping government program that is reading our emails on an ongoing basis. In response, the Director of National Intelligence released a second statement to the press regarding the collection of communications and cited the Foreign Intelligence Surveillance Act as the basis for their actions.
Citing the Foreign Intelligence Surveillance Act invokes certain portions of the United States Code focusing on Foreign powers, their agents or those acting on their behalf. When members of the executive branch identify such parties as targets of investigation, surveillance may be ordered without a court order or by applying to a judge of the Foreign Intelligence Surveillance Court for a surveillance order. An important distinction in the court order is that it may only issue upon a showing of probable cause based on written statements made under oath or affirmation. Of note is that 50 USC §1805 both allows for these orders and makes anybody complying with them immune from lawsuits if they cooperate with these requests for information.
Now, there are many things we can't know simply because of the clandestine nature of the information gathered and the parties doing the gathering. Based on the plain language of the applicable statutes, however, we have a pretty good idea that it's got something to do with national security. But unlike pen registers, taking information during booking or even good old fashioned bugged phones, the collection of electronic communication is a brave new world.
Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] or through the firm's website at www.gskandglaw.com.
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