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Analysis - U.S. surveillance case: Tech may clash with 18th Century right

A National Security Agency (NSA) data gathering facility is seen in Bluffdale, about 25 miles (40 km) south of Salt Lake City, Utah, Decembe
A National Security Agency (NSA) data gathering facility is seen in Bluffdale, about 25 miles (40 km) south of Salt Lake City, Utah, Decembe

By David Ingram and Joan Biskupic

WASHINGTON (Reuters) - A judge's bid this week to stop the U.S. government from collecting Americans' phone records raises a question that the U.S. Supreme Court has confronted before: at what point should modern technology force judges to revisit legal precedents?

Technological advancements from the automobile to the Global Positioning System (GPS) have tested the justices over the years as they tried to figure out how to apply to modern circumstances an 18th Century guarantee in the U.S. Constitution against unreasonable searches.

On Monday, U.S. District Judge Richard Leon ruled that the National Security Agency's bulk gathering of phone records is likely unlawful and called it an "indiscriminate" and "arbitrary invasion" of personal data. President Barack Obama's administration is expected to appeal the ruling, which Leon has put on hold for now.

The case is the furthest along of several lawsuits winding their way through U.S. courts, all fueled by the revelations of former NSA contractor Edward Snowden. In the other cases, civil liberties organizations sued in New York and San Francisco, and a neonatal intensive care nurse who said she was distressed about the program sued in Idaho.

At the heart of all the cases is the Fourth Amendment to the U.S. Constitution, dating from 1791. The amendment protects people from unreasonable searches of them and their property. Courts have enforced those values by requiring authorities to have a warrant before they search.

For lawyers watching the cases, what was striking about Leon's opinion was how little credit it gave to a 1979 case known as Smith v. Maryland, which held that Americans had no privacy rights when it came to information they give to third parties such as phone companies.

Then, the Supreme Court upheld a robbery conviction of a man who was arrested after the police, working with the phone company, collected a few days' worth of numbers dialed from his home.

In Monday's ruling, Leon said he was not bound by the 34-year-old precedent.

"The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979," he wrote.

In court papers, Obama's Justice Department has argued that Smith v. Maryland should prevail. It said there are privacy safeguards such as constraints on who may search the call records database, and when they may do so.

Leon "went a step farther certainly than anyone else has gone," said Carrie Cordero, the director of national security studies at Georgetown University Law Center and a former Justice Department lawyer.

In testimony before Congress, Cordero has defended the bulk phone data collection as consistent with precedent on expectation of privacy. Leon's opinion, she added in an interview, shows why the Supreme Court may decide to take another look at the matter.

The matter could reach the high court as soon as late 2014. That could happen as an appeal from an intermediate federal appellate court, such as one in Washington or New York.

A CONSTITUTIONAL ISSUE

Instead of Smith v. Maryland, Leon emphasized a different high court case, United States v. Jones in 2012.

Antoine Jones was convicted in Washington, D.C., of conspiring to distribute cocaine after investigators put a GPS tracking device on his wife's car for 28 days and tracked its movement without a warrant. The Supreme Court was asked to decide if the tracking was an unlawful search.

The court sided unanimously with Jones, ruling that the GPS tracking breached his Fourth Amendment rights.

For four of the justices, what was unsettling was the idea of long-term collection of data about an individual when a reasonable person would have expected privacy instead. A fifth justice, Sonia Sotomayor, suggested the court may have to reconsider the whole idea that third-party data was open to government search.

"The Jones case shows there are at least five justices who are sensitive to the draconian implications of new technologies," said Georgetown University law professor David Cole.

Those ideas did not make it into the court's controlling opinion in the Jones case - they were in concurring opinions - but they made it into Leon's ruling on Monday.

Quoting Sotomayor, Leon wrote, "The government has at its disposal today the most advanced 21st Century tools, allowing it to 'store such records and efficiently mine them for information years into the future.'"

Just last month, a different federal judge in an unrelated case wrote that Sotomayor's 2012 opinion was irrelevant to the phone data program, a finding that could help the Obama administration as appeals courts weigh rulings on the matter.

Devices that record dialed numbers, known as pen registers, "predate the Internet era by about 150 years and are not a product of the so-called digital revolution," wrote U.S. District Judge Jeffrey Miller in a criminal case where the defendants sought a new trial based on NSA spying.

CHANGING PRECEDENTS

In seeking to meet the challenges of changing technology, courts have sometimes bolstered protections against government searches. Sometimes they have weakened them.

In 1925 the Supreme Court carved out an automobile exception to the Fourth Amendment because of the law-enforcement concerns raised by the mobility of cars across state lines. Faced with a Prohibition Era case about bootleggers transporting alcohol, the court said the police did not need a warrant to search an automobile.

Perhaps more relevant to the collection of phone data is a pair of cases about wiretapping.

In Olmstead v. United States in 1928, the court said Fourth Amendment protections did not apply to a wiretap unless authorities had physically entered a place like a home.

But then in Katz v. United States in 1967, involving a listening device on a public telephone booth, the court emphasized that the amendment "protects people, not places." The court said it did not matter that the device did not penetrate the wall of the booth and emphasized people's privacy expectations, even in a place accessible to the public.

Thermal-imaging presented yet another technological challenge for the court. In 2001, it said that under the Fourth Amendment the government needed a warrant to aim a thermal imaging device at a home to determine its temperature. Agents were trying to determine whether marijuana was being grown under high-intensity lamps.

The NSA phone-records case would be different because it would be about informational privacy, or when people should be able to keep information from the government without a warrant, said Erwin Chemerinsky, the law dean at the University of California at Irvine.

"Technology really has made that the central issue in so many Fourth Amendment contexts, and yet the court has not begun to confront it," Chemerinsky wrote in an email.

It is difficult to predict how the nine justices might rule. In weighing a decision, they must balance individual privacy rights against government powers.

With advances in technology, the government can track people's every move and map their thoughts, said Georgetown's Cole. "If constitutional doctrine doesn't adjust," he said, "our privacy would be lost forever."

(Editing by Howard Goller and Tim Dobbyn)

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