The Register reports a case where the Eastern District Court of New York has made an interesting ruling. Before I comment upon the case it is worth going into the current law practice of US Courts. The following section on current U.S. Law has been written for an article not yet published.
Current Law The Fourth Amendment of the US Constitution provides the following.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.In comparison with article 8 of the European Convention on Human Rights (ECHR), the Fourth Amendment has neither any explicit requirement that interference must be in accordance with law nor any list which describes for which purposes interference may be legitimate. This does not mean that such matters are irrelevant. In Katz v. United States 389 U.S. 347 (1967), the Supreme Court ruled that the amendment covered a person’s “reasonable expectation of privacy”. However, there are great difficulties to know what makes an expectation of privacy constitutionally “reasonable”.
The Fourth Amendment offers a higher protection than article 8 of the ECHR in the sense that searches and seizures require probable cause and a warrant. This requires that the measure is covered by the notions “search” or “seizure”, which may explain why law enforcement agencies that conduct warrant-less surveillance tend to define the notions “search” or “seizure” narrowly. This has implications for the content/non-content distinction.
The European Court of Human Right's ruling in Malone that “envelope” information (traffic data) is protected by article 8 may be contrasted with the approach taken U.S. Courts.
The Supreme Court ruled in Ex parte Jackson 96 U.S. 727 (1877) that the Fourth Amendment does not protect the outside of a postal package. Similarly, the Supreme Court ruled in Smith v. Maryland 442 U.S. 735 (1979) that the content, but not the numbers dialled from a telephone call are protected by the Fourth Amendment. The installation and use of a pen register was not a “search” and no warrant was required. The Court of Appeals, Ninth Circuit held in United States v. Forrester 495 F.3d 1041, that the government did not trigger the Fourth Amendment when it had a target’s Internet Service Provider install a monitoring device that recorded the IP address, to/from address for e-mails, and volume sent from the account. In an opinion by Judge Fisher, the Ninth Circuit concluded that this non-content surveillance was analogous to the use of a pen register that the Supreme Court held in Smith v. Maryland and did not constitute a search for Fourth Amendment purposes. Hence, no warrant is required for interception of such data. In line with the aforementioned cases Orin Kerr argues that the basic building block of the Fourth Amendment should be that contents of communications are ordinarily protected but non-content information is not protected. Daniel J. Solove finds this distinction dubious with pen registers, e-mail, IP-adresses and URLs.
To conclude, the Fourth Amendment offers higher protection than article 8 of trhe ECHR when it applies, but the scope when the Fourth Amendment applies is more narrow, it is limited to interception of content data.
Eastern District Court of New York The District Judge made the following statement:
The Supreme Court in Katz, after all, drastically changed existing Fourth Amendment doctrine in concluding that the phone booth user had a reasonable expectation of privacy over the contents of his conversation. ... The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records. ... This court ... seeks to resolve the question before it: whether the request for at least 113 days of cumulative cell-site-location records for an individual's cell phone constitutes a search under the Fourth Amendment. (Sealed Appl. at I, 5.) The court concludes that it does. Consequently, the information sought by the Government may not be obtained without a warrant and the requisite showing of probable cause.The district court ruling departs from the Supreme Court ruling in Smith v. Maryland, because it extends the scope of the Fourth Amendment to non-content surveillance. The district briefly cites Smith v. Maryland on page 5.
The District Judge also makes some allusions to litterature in his conslusions.
While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion, the government's surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits.It remains to be seen if the order will stands or is reversed on appeal.
Swedish law In general a warrant is needed to acquire non-content data in Sweden in the context of criminal investigation. However, there is a loophole in chapter 6, section 22(3) the Electronic Communications Act (2003:389). No warrant or probable cause is needed if it concerns an offence where the sanction is two years imprisonment or more. This provision is typically used a) when a crime has been commited, but it is impossible to identify a suspect, 2) for intelligence purposes.