July 12, 2017

How Downsize DC continues to restore the Fourth Amendment

Why Sprint hands over, without a warrant, your cell phone and GPS data.

The decision we won in U.S. v. Jones restored the property rights basis of the Fourth Amendment (4A). Since then we’ve worked to extend that landmark ruling by filing several legal briefs in 4A cases. Now we want to apply our successful work to a federal case where a man faces three years in prison.

Fourth Amendment matters

It will be helpful, to you, if you understand what we achieved in the Jones case.

PROPERTY VS PRIVACY

The Supreme Court stripped property rights analysis out of 4A cases in 1968. Instead, they relied exclusively on whether the person searched had a “reasonable expectation of privacy.”

As technology improved, those expectations diminished…

  • The State kept getting better, hi-tech tools for spying, so that…
  • “Expecting privacy” became increasingly “unreasonable” in the eyes of the courts.

Our TWO Supreme Court briefs in United States v. (Antoine) Jones (2012) case argued that the Fourth Amendment — the right to be secure, in one’s person, houses, papers, and effects, from warrantless searches — should be understood first and foremost as a property right. Regardless of his privacy expectation, Jones’ property rights had been violated.

A WINNING THEORY

Our argument was so novel, that a friend filing another Jones brief ribbed me about it. “You guys keep up the good fight,” he chuckled. He agreed with us but suggested our brief was going to be considered comedy by the clerks and Justices who read it. He thought the High Court’s devotion to the ever-shrinking privacy expectation rationale was that strong. But…

We got the last laugh; the Court adopted much of our unique argument.

After a 44-year absence, the Supreme Court brought back the property basis in Jones. They did so because you funded those amicus briefs.

And the Jones decision was no aberration. In the Jardines case (2013), Justice Scalia indicated that privacy rights may helpfully supplement property rights, but property is the first and primary 4A concern.

Armed with these two precedents, we filed several other briefs. In each instance, we strove to…

  • Expand the ways the property basis was applied
  • Increase the strength of our Jones & Jardines precedents

APPLYING THE THEORY

We’re partnering with our attorneys and Gun Owners of America to file a new amicus brief (pdf).

This case is not in the Supreme Court. And there’s nothing theoretical about it, because…

A man is facing three years in prison, because prosecutors were able to obtain 28 months worth of his cell phone records, both calls and GPS data, from nTelos/Sprint.

  • They didn’t get a warrant.
  • They never asked a judge for permission.
  • Sprint handed the records over at essentially the prosecutor’s request.
  • And the courts, thus far, have ruled (in the old-fashioned, pre-2012 sense) that he has no “reasonable expectation of privacy” in those records.

In cases like this, we’re helping the criminally accused, often after they’ve been convicted. But we argue that their convictions are invalid whenever the 4A has been violated.

We believe this evidence was unconstitutionally obtained by the government. So we’re trying to apply a property analysis to a case where it was noticeably absent.

IS YOUR DATA NEXT?

If you’re a Sprint customer, you should know that the company seems to be eager to comply with virtually any request on government letterhead. They’ll turn over everything except the content of your communications. And that covers a lot of stuff such as location data (another 4A area where we’re fighting to expand the property theory), as well as numbers called or received whether for calls or texts.

Why are cell phone providers so ready to hand it over to the government?

Because, as we explain on page 11 of the brief (and in footnote 8), they are coerced into doing so by “law.” Even worse, they would probably still comply even if the “law” was different because the government heavily regulates their industry and even licenses much of it.

The problem doesn’t only apply to Sprint. It pertains to every cell phone provider and cloud-based service, again both through the coercion of legislation and through intimidation by state officials.

We need your help to pay for this brief. We wrote it even before we asked for your help because we knew you wouldn’t let us down.

In this particular case, our costs are lowered because our attorneys volunteered half of their time. While you were celebrating Independence Day, they were researching and writing.

Please consider making a donation of $1,000.

Most people cannot afford that. Please know that when many people respond, contributions of various sizes, from small to large, add up to a lot.

And we were able to make this leap, to get this brief out before asking you, because of our wonderful monthly pledgers. Consider joining them. The more pledgers we have, the more aggressive we can be in our mission.

DownsizeDC.org is partnering with the Downsize DC Foundation, home of the Zero Aggression Project. When you click this link, you’ll be taken to the ZAP form. That way, your contribution can be tax-deductible, if you itemize.

Jim Babka & Perry Willis
Downsize DC Foundation (Zero Aggression)
& DownsizeDC.org, Inc.

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