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Federal courts deal ACLU defeats on NSA surveillance and border-crossing laptop searches

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Civil libertarians had two technology case court setbacks in late December, with separate federal judges dismissing constitutional challenges to the National Security Agency telephony metadata program and to suspicionless searches of electronic devices at border crossings.

In a Dec. 27 ruling in the NSA case, mounted by the American Civil Liberties Union as its own plaintiff, Judge William Pauley III of the U.S. Southern District Court of New York relied on the lately-much discussed Smith v. Maryland 1979 Supreme Court case to turn away a Fourth Amendment objection to the NSA program.

Pauley's decision (.pdf) is diametrically opposite in its reasoning to another federal judge's opinion issued days earlier finding the NSA likely conducts what should be a protected search by storing the transaction records of all telephone calls passing through U.S. carrier switches. Both cases are subject to appeals, making the Supreme Court a likely final arbiter of the NSA program, revealed by former intelligence contractor Edward Snowden in June.

Pauley's decision shows him applying the Smith precedent exactly as intelligence community officials have argued, stating that nothing in its particulars or in technology changes since 1979 would cause him to rule otherwise except that telephone records are necessarily voluntarily exposed to third parties, and so not subject to an expectation of privacy. In Smith, Baltimore police won a case made against their collection via the telephone company of numbers dialed by a man suspected of harassment (and robbery) without first seeking a warrant on the grounds that subscribers knowingly convey transactional records to the telephone company in the normal course of being a customer.

"Those records are created and maintained by the telecommunications provider, not the ACLU," Pauley wrote, and when a person "voluntarily conveys information to a third party, he forfeits his right to privacy." The size of the NSA program changes nothing, he added.

Some Supreme Court justices may have signaled that the outcome of Smith would be different today, Pauley also wrote, but Smith still stands as precedent. "The Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases."

Pauley is clearly a supporter of the program, agreeing with the NSA that the program "only works because it collects everything," and dismissing an argument that metadata has the potential to reveal highly personal information due to the mosaic effect. "The government repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles," he wrote, a reference to a declaration of support (.pdf) for the ACLU from Princeton computer science researcher Edward Felten.

The ACLU found itself on the losing end again in another federal court on Dec. 31, when a plaintiff represented by it suing the Homeland Security Department over border searches had his case dismissed in the U.S. Eastern District of New York.

The ACLU sued in 2010 on behalf of Pascal Abidor, a U.S. and French dual citizen whose laptop and external hard drive were searched after he crossed back into the United States on a train from Canada.

In his decision (.pdf), Judge Edward Korman said border crossings constitute a longstanding administrative or special needs exception to the traditional privacy thresholds of probable cause of reasonable suspicion before a search.

Addressing a Ninth Circuit decision from March that found that forensic searches of electronic devices brought through border crossings must at least meet the threshold of reasonable suspicion, Korman says he agrees that should suspicionless forensic searches threaten to become the norm at border crossings – as opposed to the non-technical examination of today – "then some threshold showing reasonable suspicion should be required."

Regardless, Abidor met that threshold, Korman said, noting pictures of Hamas and Hezbollah rallies on his computer (Abidor is a doctoral student in Islamic studies). "Reasonable suspicion is a relatively low standard and border officials are afforded deference due to their training and experience," he said.

Abidor's allegation of harm suffered due to, post-search, self-censorship about the data he carries on his laptop while traveling gets no truck from Korman, either. Traveling with truly private or confidential information is ill-advised anyhow, the judge wrote.

"While it is true that laptops may make overseas work more convenient, the precautions plaintiffs may choose to take to 'mitigate' the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel," he stated.

For more:
- download Pauley's decision on NSA telephone metadata from aclu.org (.pdf)
- download Korman's decision on border-crossing searches from aclu.org (.pdf)

Related Articles:
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Ninth Circuit says deep laptop searches at border crossings require 'reasonable suspicion'