Slashdot Mirror
NSA's Legal Win Introduces a Lot of Online Insecurity
Nerval's Lobster writes "The decision of a New York judge that the wholesale collection of cell-phone metadata by the National Security Agency is constitutional ties the score between pro- and anti-NSA forces at one victory apiece. The contradictory decisions use similar reasoning and criteria to come to opposite conclusions, leaving both individuals and corporations uncertain of whether their phone calls, online activity or even data stored in the cloud will ultimately be shielded by U.S. laws protecting property, privacy or search and seizure by law-enforcement agencies. On Dec. 27, Judge William H. Pauley threw out a lawsuit filed by the American Civil Liberties Union (ACLU) that sought to stop the NSA PRISM cell-phone metadata-collection program on the grounds it violated Fourth Amendment provisions protecting individual privacy and limits on search and seizure of personal property by the federal government. Pauley threw out the lawsuit largely due to his conclusion that Fourth Amendment protections do not apply to records held by third parties. That eliminates the criteria for most legal challenges, but throws into question the privacy of any data held by phone companies, cloud providers or external hosting companies – all of which could qualify as unprotected third parties."
The Constitution is a grant of certain enumerated powers to the Federal government; a strict constructionalist position would be that, as the Constitution does not explicitly grant the Federal government the authority to conduct gathering of data against its citizens without a warrant, that the NSA's conduct of just such a program of datagathering is inherently unconstitutional. Evidence of this sort of constructionalism is evidenced by the fact that it was considered necessary to pass a constitutional amendment giving the Federal government the authority to levy a tax on income, rather than simply assuming that the authority was already extant under Article I, Section 8.