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Major Domestic Surveillance Cases

Lecture to the EFFR Lab, 2015 UM Debate Camp
by

Kurt Fifelski

on 14 July 2015

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Transcript of Major Domestic Surveillance Cases

Major Domestic Surveillance Cases
Mapp V Ohio (1960)
Facts: Mapp is arrested and prosecuted on evidence gathered from another investigation
Question: May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?
Decision (6-3): "all evidence obtained by searches and seizures in violation of the Constitution is, by the fourth amendment, inadmissible in a state court."
Importance:
Exclusionary Rule
Katz v United States (1967)
Facts: Federal agents attached an eavesdropping device to the outside of a public phone used by Katz -- hewas was convicted under an eight- count indictment for the illegal transmission.

Question: Does the fourth amendment require police to get warrants?

Decision (7-1): Yes. "The Fourth Amendment protects people, not places"

Importance:
Reasonable expectation of privacy
Smith v Maryland (1979)
Facts: The police set up a
Pen Register
to monitor a suspect without a warrant.
Question: Are PR searches without a warrant permitted by the Fourth Amendment?
Decision (5-3): Yes. A reasonable expectation of privacy does not apply to the numbers recorded by a pen register because those numbers are used in the regular conduct of the phone company’s business, a fact of which individuals are aware. The Fourth Amendment does not apply to information that is voluntarily given to third parties, the telephone numbers.
Laundry List
These include
Hepting v. AT&T
,
Jewel v. NSA,
and
Al-Haramain Islamic Foundation v. Bush
, all of which sought redress for Fourth Amendment violations under the NSA's surveillance programs. In Hepting, the Electronic Frontier Foundation ("EFF") sought to preclude AT&T from routing copies of Internet traffic directly to the NSA. In Jewel, numerous individuals brought actions against the NSA to cease the ongoing dragnet collection of metadata. In Al-Haramain, plaintiffs, a now defunct Islamic organization, sued the Bush administration for alleged warrantless wiretapping of the Foundation, which they asserted violated FISA. the government moved to dismiss the actions by asserting that the State Secrets Privilege preempted litigation. n45 In what [*36] turned out to be a pyrrhic victory, the courts rejected the State Secrets Privilege argument as abrogated by 50 U.S.C. § 1806. n46 However, none of the plaintiffs have yet been successful in having their cases decided on the merits. -- "Ombres 2015"
City of Ontario v. Quon
Facts: City employees text message were being read by the city.

Question: Does a city employee have a reasonable expectation of privacy in text messages transmitted on his city-issued pager when the police department has no official privacy policy for the pagers?

Decision (9-0): Even assuming that Mr. Quon had a reasonable expectation of privacy in his text messages, the city's search of them was reasonable because it was motivated by a legitimate work- related purpose and was not excessive in scope.

Clapper v. Amnesty (2012)
Facts: Attorneys/Journalists brought a suit against FISA, because FISA intrudes on privilege. The groups argue that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers.

Question: Do respondents have Article III standing to seek prospective relief under the FISA?

Decision (5-4): The Court held that the respondents did not have standing under Article III of the U.S. Constitution because no injury occurred. Claiming a reasonable likelihood that their communications would be intercepted under FISA is not enough to show future injury for standing purposes.

Future of the Court?
Kurt Fifelski, University of Michigan Debate
Full transcript