Federal Court (Finally) Rules Backdoor Searches of Data Unconstitutional
95 comments
·January 22, 2025idrathernot
Even if congress ends their blatantly unconstitutional endorsement of Section 702 spying, I still don’t see why anyone would believe that the government is going to do anything other than massively expand their ability surveil every living moment of our lives. I don’t see the point in them trying to play it off like the system has any integrity whatsoever.
duxup
Congress has been woefully short of curiosity or oversight that doesn't involve partisan politics ... let alone leadership.
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impossiblefork
Why do you think section 702 seems unconstitutional? It looks pretty legal to me at least.
raincom
The Fourth amendment "protects people from unreasonable searches and seizures by the government". Then, third-party doctrine created by SCOTUS is a loophole for the fourth Amendment. Third-party doctrine says 4A "does not apply to information that is voluntarily shared with third parties".
Section 702 allows to collect all communications between American citizens and non-citizens, and communications between non-citizens, without any warrant. The issue is: does one need a warrant to search any data about a US citizen in 702 collections? Here, the court says it violates 4A.
rurban
The federal court ruled otherwise.
impossiblefork
I feel that it just forced them to actually folllow section 702 rather than letting them go about things as they liked.
npvrite
Can we all stop pretending that they don't abuse of their power and hold your deepest darkest secrets indefinitely? Even though most of us are law abiding citizens.
Can we please start making open hardware without Apple/google backdoors and stop pretending our systems are "secure".
Can we please write all software in Rust and stop using languages that weren't designed for security. Yes C is beautiful. Yes it also lets you shoot yourself in the foot.
Can we please use distributed systems to avoid censorship or holding our private information in the hands of the rich?
oneplane
No, we apparently can't, because every time someone attempts to do that, we don't end up with a usable end state or product that people actually want to use or participate in.
Perhaps we just haven't had success yet, and it's not impossible. But such desired outcomes tend to also require everyone to "be the same" (knowledge, skills, capabilities) or "want the same" (desire to spend time and attention on this sort of thing etc.) and that's not how people work.
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ethin
I can't tell if your being sarcastic or actually serious, because nobody is rewriting everything in Rust.
ycombinatrix
GP said "write" not "rewrite"...
dmz73
>Can we all stop pretending that they don't abuse of their power and hold your deepest darkest secrets indefinitely? Even though most of us are law abiding citizens. I don't anyone know who thinks powerful don't abuse their power. It is the nature of the beast. And it seems none of us are law abiding citizens: https://www.saponelaw.com/blog/2019/10/professor-says-that-e...
>Can we please start making open hardware without Apple/google backdoors and stop pretending our systems are "secure". Few try...and either fail or languish in obscurity. You comment in itself is the proof that open hw cannot compete since you don't know of these open hw platforms and don't use them even tough you seem to advocate their creation here.
>Can we please write all software in Rust... Rust only eliminates memory safety issues of C/C++. There are large number of languages, some decades older than Rust, that provide various aspects of Rust memory safety without imposing the same limits...and some are being used but people always flock to either new and flashy or the most widely used. Besides, Rust still provides ample foot guns and pushes reliance on 3rd party libraries which replaces memory safety issues with supply chain issues. Not to mention the the very poor ergonomics of the language that purposefully shies away from a lot of syntax sugar that makes writing and reading (understanding) code easier.
>Can we please use distributed systems to avoid censorship or holding our private information in the hands of the rich? Even if you managed to persuade a lot of people to use these, some nodes will become popular/trusted and be targeted for censorship and propaganda and that will achieve the same result as the current model. Again, it is the nature of the beast.
What can be done? I don't know, probably nothing...things have to get to the point where most people are compelled to act because the alternative is death or worse, until such time there will just not be enough support for action to matter. Just how people are.
zxvkhkxvdvbdxz
> Rust only eliminates memory safety issues of C/C++
According to Microsoft, about 70% of all security bugs in their products are memory safety issues.
These could be all be eliminated with a language that doesn't allow it in the first place.
https://www.zdnet.com/article/microsoft-70-percent-of-all-se...
johnnyanmac
Android, sure. There's still AOSP and there are a few niche devices dedicated to being as close to Open Hardware as we could be.
>Can we please write all software in Rust and stop using languages that weren't designed for security.
I'm all for it. But very few people want to pay for talent that can properly rewrite that legacy C/++ codebase into proper Rust.
RajT88
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josefritzishere
This should not have been so hard.
jmclnx
Well I guess of the the US Supreme Court. They seem to get every case these days :(
perihelions
No, just a district court (Eastern District of New York).
ARandomerDude
> We expect any lawmaker worthy of that title to listen to what this federal court is saying and create a legislative warrant requirement so that the intelligence community does not continue to trample on the constitutionally protected rights to private communications.
Sad to say it, but I find it laughable that the intel agencies would suddenly stop if it were illegal (though of course it should be illegal). They operate in secret and anyone in the government who opposes them will commit suicide or suddenly be in possession of child pornography.
As New York Sen. Chuck Schumer once told Rachel Maddow on air, “Let me tell you, you take on the intelligence community, they have six ways from Sunday of getting back at you.” [1]
SpliffnCola
Is this because they have full access now to the front door?
treetalker
Don't worry: SCOTUS will determine that the Framers did not have a history and tradition of protecting metadata, so the Fourth Amendment has no application here; and, furthermore, the Court's recent jurisprudence regarding the Executive (dieu et mon droit) necessarily implies that the Government has an extremely compelling interest sufficient to overcome the Fourth Amendment and permit warrantless searches of everyone in the United States and elsewhere.
rayiner
You mean like in Riley, which was authored by Chief Justice Roberts and was a 9-0 decision? https://en.wikipedia.org/wiki/Riley_v._California
> Riley has been widely praised as “a sweeping victory for privacy rights”[5] with legal scholars describing the decision as "the privacy gift that keeps on giving."
Since then the Court has picked up another privacy hawk (Justice Gorsuch), and another Justice (Barrett) that's also pretty strong on privacy: https://www.protectprivacynow.org/news/how-will-a-justice-am....
cherry_tree
To be fair the current court in 2025 is a different court than 2018, and in 2024 they overruled a long standing precedent in the chevron doctrine. It wouldn’t be out of the realm of possibility that this court would disregard Riley.
I do agree that it currently like the court is broadly pro-privacy but I also think it entirely depends on the case and its specifics.
rayiner
Five of the Riley justices are still on the court. Of the four that aren’t, there’s two that seem stronger on privacy than his or her predecessor (Gorsuch, KBJ), one that seems like a wash (Kavanaugh), and maybe one that’s less strong on privacy (Barrett).
You can point to Roe and Chevron, but those didn’t come out of nowhere. The first, conservatives vowed to overturn 50 years ago—and its expansive notion of judicially declaring rights is not embraced even among liberals on the court today. The second was a judge created interpretive doctrine anyway, and proved unworkable over time. But it also didn’t come out of nowhere. Gorsuch has been writing about it since before I was in law school, and that was 15 years ago.
KennyBlanken
That Court you're so impressed with repeatedly refused to review lower court rulings that police can physically force a suspect to press their finger against their phone or force them to look at it to unlock it with thumbprint or face ID. The most recent ruling, which they refused to hear an appeal on, was v Payne. The opinion from the 9th circuit was that it was oke-dokeily because, and I quote, "required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking", and also because the cop could have done it while Payne was unconscious or asleep. The court you're so impressed with looked at that and in refusing to hear the appeal, upheld the decision.
That court you're so impressed with also:
..ruled that silence does not indicate someone is exercising their right to remain silent (!) in Berghuis v. Thompkins. I mean really, you can't make this shit up.
...made Miranda rights almost worthless in Vega v. Tekoh, where a cop cornered a nurse in a storage room, threatened the nurse by putting his hand on his gun, threatened him and his family with deportation, etc...and then his statements were then used against them in court. The ruling removed the right to sue for having one's Miranda rights violated, only that they can suppress the statements in court.
...ruled that imprisoning someone did not count as "custodial". Again, you cannot make this shit up.
...threw a hissy fit when people dared to start protesting outside their homes.
rpmisms
> The opinion from the 9th circuit was that it was oke-dokeily because, and I quote, "required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking"
You might dislike it, but legally, these are equivalent, with the requirement of a finger being less onerous. Biometrics are public information, like it or now. It's a well-reasoned decision.
roenxi
Just dealing with the one you seem to put as most important - the 9th circuit's logic is watertight and police have to be able to investigate or a lot of murders will go unsolved. You'd really need to provide a reason why the search was unreasonable to make a point with that one.
It makes a lot of sense to have protections against the police searching phones, homes, businesses, etc. But assuming that those protections aren't at play then it is entirely reasonable that a policeperson can force someone to put their thumb somewhere. The police already have the power to manhandle and imprison people, forced thumblocation is nothing compared to that. What do you want the Supreme court to do here, officially rule that police can coerce not just entire bodies at once, but also thumbs separately and individually? That seems like an unnecessary call for them to make.
rayiner
> That Court you're so impressed with repeatedly refused to review lower court rulings that police can physically force a suspect to press their finger against their phone or force them to look at it to unlock it with thumbprint or face ID
Of course they can. Why wouldn’t they be able to?
1oooqooq
the 2001 upgrade to FISA made the suppreme court irrelevant in matters of citizen privacy.
what they are deciding now is how to dress the mechanics of it.
dgfitz
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zdragnar
My understanding of this case has nothing to do with metadata. The communications were captured in full because one party was not a citizen in the US (under national security reasons).
Those communications were then stored and made available in full via keyword based search interfaces, and those later searches were made without first securing a warrant.
I'm not going to bother reading the tea leaves too closely on this one, but I'd put it at least at even odds the supreme court would say the 4th amendment does apply here.
idrathernot
I think “metadata” is meant as an example of Barnum statement in the context of the original comment. It is very common for courts to reinterpret language as a means of getting to a specific end. Same reason that “Interstate Commerce” actually means all commerce in the 10th amendment.
rayiner
Except in cases involving “metadata,” there’s typically a highly relevant difference in terms of who owns the data. The fourth amendment says:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
You have a right as to your data, but not other people’s data about you. E.g. you have no right as to a pharmacy’s business records about you. (That’s their data, not your data.)
To my knowledge, no court has ever distinguished between say image and the file metadata on someone’s computer. But the way “metadata” becomes relevant is often because someone else owns “metadata” about your files, such as server logs.
Retric
No, a background of interstate commerce is considered to be meaningful. It’s why the Texas power grid being so isolating has meaning.
However the court views a commodity as influencing and being influenced by interstate trade even if that specific gallon of oil never crossed state lines. From a purely economic standpoint it’s a reasonable take. Even Europe’s use of oil influences US oil prices let alone what happens in another state.
It’s both an upside and downside of the judicial system that they take things in context.
landryraccoon
Can you explain why? That doesn’t seem like sound reasoning to me.
If you believe the reason is corruption, what personal incentive would the courts have to rule this way? Judges can easily be the victim of government overreach as well.
idrathernot
And having a log of every conversation and keystroke that any outspoken judge has ever made gives you all sorts of ways to align their opinions with the above all importance of “National Security”
notjoemama
They were being sarcastic with no reasoning or explanation and there's no logical reason it ought to be the top comment in this thread.
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matthewdgreen
The new administration just ordered the resignation of every Democratic-appointed member on the Privacy and Civil Liberties Oversight - this is the body that oversees the intelligence agencies and makes sure they don't abuse their power to spy on Americans. So much for dismantling the deep state.
Terr_
> that the Framers
Relevant, even though he's not a "framer":
"Using Metadata to find Paul Revere" - https://kieranhealy.org/blog/archives/2013/06/09/using-metad...
> But I say again, if a mere scribe such as I—one who knows nearly nothing—can use the very simplest of these methods to pick the name of a traitor like Paul Revere from those of two hundred and fifty four other men, using nothing but a list of memberships and a portable calculating engine, then just think what weapons we might wield in the defense of liberty one or two centuries from now.
reverendsteveii
The people whose job it is to interpret the law have abandoned any pretense of doing that in favor of shoving words into the mouths of men who died before humans discovered dinosaurs. The court is openly, brazenly corrupt.
rayiner
In a democracy, what method would you propose judges use to impose restrictions on the actions of the democratically elected government based on a written constitution?
AyyEye
> what method would you propose judges use to impose restrictions
Judges are appointed (or voted in) by the very people you think they "impose restriction" on. Any ruling against the ruling class in our favor is nothing more than a happy accident.
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danju
[dead]
kittikitti
We should go even further and abolish the FBI. They all believe they're above the law and have consistently been the enemy of Americans. What success can they even point to?
FilosofumRex
Don't forget about it's little sibling, the NSA, and its reputation for openly and overtly mocking our Constitution and its social compact. Snowden is still in political exile in Moscow for the heinous crime of whistleblowing.
https://www.reuters.com/article/world/exclusive-nsa-infiltra...
cyanydeez
Yes, its totally the FBI ans not every large tech firm invading and trading youe privacy.
idrathernot
Plausible deniability is key pillar of ensuring National Security
cyanydeez
Or, its just an oligarchy established for plausibly deniability of.minority slavery
datavirtue
The FBI hunts down and removes extremely violent criminals from society every day. They certainly operate right on the edge of the law, as they should. Furthermore, they never stop and never quit and no distance is too far--they will prevail no matter what. Extremely important to the stability of society.
parineum
The FBI has a pretty consistent record of operating beyond the law. They can't seem to go more than a decade (if that) without a major controversy.
datavirtue
Agreed. Still doesn't discount their good service.
int_19h
No law enforcement agency should be "operating right on the edge of the law". Their purpose is to enforce laws, not to seek creative ways to get away with breaking them.
ein0p
We'll see about that, won't we? Trump has just declassified JFK, RFK and MLK files. Was MLK an "extremely violent criminal"?
lesuorac
Everything used to describe present day Black Lives Matter was also used to describe MLK.
datavirtue
That era is long gone and I doubt it was all on the FBI.
yownie
what world do you live in?
rayiner
[flagged]
It's funny that even though the court ruled it is against the law to do so the federal agencies will continue to commit this crime (FBI) and pass illegal legislation (congress) until each specific agency changes it's internal regulations. If they do. The EFF seems to imply continued pressure is needed to convince them to do so.