{"id":8665,"date":"2015-05-11T10:07:50","date_gmt":"2015-05-11T14:07:50","guid":{"rendered":"http:\/\/www.megalextoria.com\/wordpress\/?p=8665"},"modified":"2015-05-11T10:07:50","modified_gmt":"2015-05-11T14:07:50","slug":"in-holding-nsa-spying-illegal-the-second-circuit-treats-data-as-property","status":"publish","type":"post","link":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/2015\/05\/11\/in-holding-nsa-spying-illegal-the-second-circuit-treats-data-as-property\/","title":{"rendered":"In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property"},"content":{"rendered":"

The U.S. Court of Appeals for the Second Circuit has ruled<\/a> that section 215 of the USA-PATRIOT Act never authorized the National Security Agency\u2019s collection of all Americans\u2019 phone calling records. It\u2019s pleasing to see the opinion parallel arguments<\/a> that Randy Barnett and I put forward<\/a> over the last couple of years.<\/p>\n

Two points from different parts of the opinion can help structure our thinking about constitutional protection for communications data and other digital information. Data is property, which can be unconstitutionally seized.<\/p>\n

As cases like this often do, the decision spends much time on niceties like standing to sue. In that discussion\u2014finding that the ACLU indeed has legal standing to challenge government collection of its calling data\u2014the court parried the government\u2019s argument that the ACLU suffers no offense until its data is searched.<\/p>\n

\u201cThe Fourth Amendment protects against unreasonable searches and seizures<\/em>,\u201d the court emphasized. Data is a thing that can be owned, and when the government takes someone\u2019s data, it is seized.<\/p>\n

In this situation, the data is owned jointly by telecommunications companies and their customers. The companies hold it subject to obligations they owe their customers limiting what they can do with it. Think of covenants that run with land. These covenants run with data for the benefit of the customer.<\/p>\n

Far later in the decision, on the other side of the substantive ruling that section 215 doesn\u2019t authorize the NSA\u2019s program, the court discusses the Supreme Court\u2019s 2012 Jones<\/em> decision.Jones<\/em> found that attaching a GPS tracking device to a vehicle requires a warrant.<\/p>\n

\u201d[Jones<\/em>] held that the operation was a search entitled to Fourth Amendment protection,\u201d the Second Circuit says, \u201cbecause the attachment of the GPS device constituted a technical trespass on the defendant\u2019s vehicle.\u201d<\/p>\n

Source: In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The U.S. Court of Appeals for the Second Circuit has ruled that section 215 of the USA-PATRIOT Act never authorized the National Security Agency\u2019s collection of all Americans\u2019 phone calling records. It\u2019s pleasing to see the opinion parallel arguments that Randy Barnett and I put forward over the last couple of years. Two points from different parts of the opinion can help structure our thinking about constitutional protection for communications data and other digital information. Data is property, which can be unconstitutionally seized. As cases like this often do, the decision spends much time on niceties like standing to sue. In that discussion\u2014finding that the ACLU indeed has legal standing to challenge government collection of its calling data\u2014the court parried the government\u2019s argument that the ACLU suffers no offense until its data is searched. \u201cThe Fourth Amendment protects against unreasonable searches and seizures,\u201d the court emphasized. Data is a thing that can be owned, and when the government takes someone\u2019s data, it is seized. In this situation, the data is owned jointly by telecommunications companies and their customers. The companies hold it subject to obligations they owe their customers limiting what they can do with it. Think of covenants that […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15],"tags":[1245],"class_list":["post-8665","post","type-post","status-publish","format-standard","hentry","category-news-and-politics","tag-nsa"],"_links":{"self":[{"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/posts\/8665","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/comments?post=8665"}],"version-history":[{"count":0,"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/posts\/8665\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/media?parent=8665"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/categories?post=8665"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/wp-json\/wp\/v2\/tags?post=8665"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}