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Spycraft: how do we fix a broken NSA? | The Verge

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One answer from Saturday's rally would look to the judiciary, trying to rewrite the laws and precedents of surveillance into something less hostile towards privacy. In particular, advocates have their eye on Smith v. Maryland, a single Supreme Court case that ended up being responsible for much of current surveillance law. Sina Khanifar, founder of StopWatching.Us and organizer of Saturday's march, said overturning the case was one of his main goals for the rally. The case established that anyone turning their data over to a third party (like the phone company) has no reasonable expectation of privacy. That precedent became known as the third-party doctrine, a major exception to the Fourth Amendment’s restrictions on warrantless search that’s only expanded in recent years. "I think, ultimately, what we want is a reversal of Smith vs. Maryland and the third-party doctrine, which is at the heart of this," Khanifar says. "We want the government and our courts to make it clear that we do have a reasonable expectation of privacy when we do things online."


In 1979, the ruling was fairly specific, focusing on the government's ability to install a pen register device at a central phone company facility without a warrant — but as communication technology has grown, so have the government’s third-party powers. Now that same legal precedent is being used to justify much broader powers. According to Snowden documents, that same pen register can pull all the email that passes through a service. In the case of Lavabit, the FBI even used the order for a pen register to demand access to the service's SSL certificate, effectively hijacking the site. "If it were still 1978, technologically, then the Smith v. Maryland ruling wouldn't be that big a deal," says Julian Sanchez, a lawyer at The Cato Institute, a libertarian think-tank . "The reason it has this outsized importance is that technology has changed in a way that makes that cover a huge quantity of data." The hope is that, without the third-party doctrine, intelligence organizations would be forced to find a better justification for broad surveillance, or go without it entirely.

But while this logic is appealing, it may not go as far as advocates want it to. Smith v. Maryland is hugely influential in standard civilian courts, but it's unclear how much effect its repeal would have on the secret FISA courts that rule on the NSA's surveillance requests. Without stronger disclosures, we might never know.