When Does Technology Change Enough That the Law Should Too?

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http://www.theatlantic.com/technology/archive/2013/12/when-does-technology-change-enough-that-the-law-should-too/282683/


Yes, the '70s. A good time for all. (Wikimedia Commons)

In the past 10 days, two separate courts have handed down "diametrically opposed" rulings on the legality of the NSA's bulk telephony metadata collection programs. One, decided by a federal trial judge in Washington, found that the program was "likely unconstitutional"; the other, decided today by a federal trial judge in New York, found that the exact same program to be A-okay under our nation's statutory and constitutional law.

Though the two judges were at odds on many, many aspects of the law (run down expertly by my colleague Andrew Cohen here), one disagreement stands out, a central axis around which all other details aligned: Should the Supreme Court's 1979 ruling Smith v. Maryland guide the way for interpretation of the Fourth Amendment today? In that case, the Court found that people could have no "reasonable expectation of privacy" for information voluntarily disclosed to third parties. If Smith's logic extends to today, than the Fourth Amendment would not protect the metadata that cell-phone carriers are providing to the NSA.

As Andrew writes, "One judge went around the precedent of Smith. The other judge embraced that precedent and said he had no right to ignore Smith."

Judge Richard Leon is the former. He wrote, "When do present-day circumstances—the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith does not apply? The answer, unfortunately for the Government, is now."

[ConcernedCanuk]

1. About a decade ago . . .

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us hoomans be a wee bit slow

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