Page 234 - Privacy in a Cyber Age Policy and Practice

222 NOTES

http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-over-
sight-process-secrecy; Conor Friedersdorf, “The NSA Scandal Is All That: A
Polite Rebuttal to Marc Ambinder,” The Atlantic, August 22, 2013, http://www
.theatlantic.com/politics/archive/2013/08/the-nsa-scandal-is-em-all-that-em
-a-polite-rebuttal-to-marc-ambinder/278886/.
74. Barton Gellman and Ashkan Soltani, “NSA Tracking Cellphone Locations
Worldwide, Snowden Documents Show,” Washington Post, December 4,
2013.
75. Information voluntarily handed over to another party does not receive Fourth
Amendment protection “even if the information is revealed on the assumption
that it will be used only for a limited purpose and the confidence placed in
the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443
(1976); see also, Orin Kerr, “The Case for the Third Party Doctrine,” Michigan
Law Review 107 (2009): 561, 569–70. Earlier cases that built up this doctrine
include Lee v. United States 343 U.S. 747 (1952) and Couch v. United States 409
U.S. 322 (1973).
76. United States v. Miller, 425 U.S. 435 (1976).
77. Smith v. Maryland, 442 U. S. 735 (1979).
78. Robert Litt, “General Counsel Litt’s Remarks on Intelligence Collection,”
Council on Foreign Relations, July 18, 2013, http://www.cfr.org/intelligence/
general-counsel-litts-remarks-intelligence-collection/p31130?cid=
rss-primarysources-general_counsel_litt_s_remarks-071813.
79. As Orin Kerr notes: “The third-party doctrine is the Fourth Amendment rule
scholars love to hate. It is the Lochner of search and seizure law, widely criticized
as profoundly misguided . . . The verdict among commentators is has been fre-
quent and apparently unanimous: The third-party doctrine is not only wrong,
but horribly wrong. Even many state court judges have agreed. Over a dozen
state Supreme Courts have rejected the doctrine under parallel provisions of
their state constitutions. . . . Remarkably, even the U.S. Supreme Court has never
offered a clear argument in its favor. Many Supreme Court opinions have applied
the doctrine; few have defended it” (“The Case for the Third-Party Doctrine,”
563–64). Though Kerr highlights the many criticisms of the doctrine, the cited
paper attempts to defend the doctrine by defusing prominent criticism and pre-
senting positive reasons for accepting the doctrine, e.g., it preserves the Fourth
Amendment’s technological neutrality and ensures its ex ante clarity.
80. Matthew Tokson, “Automation and the Fourth Amendment,” Iowa Law Review
96 (2011): 581, 586.

81. Greenwald, “Fisa Court Oversight.”
82. Friedersdorf, “The NSA Scandal Is All That: A Polite Rebuttal to Marc
Ambinder.”
83. Pew Research, “Few See Adequate Limits on NSA surveillance programs,”
July 26, 2013, http://www.people-press.org/2013/07/26/few-see-adequate-
limits-on-nsa-surveillance-program/.
84. David Ignatius, “NSA Weighs Its Options,” The Washington Post, July 26,
2013, http://articles.washingtonpost.com/2013-07-26/opinions/40859128_1_
national-security-agency-surveillance-programs-calling-records.