The USA Freedom Act of 2015, enacted June 2, sharply curtails the ability of the National Security Agency and FBI to obtain, without judicial approval, transactional telephone records from carriers and to search the metadata contained in those records without judicial approval as well. Privacy advocates in both parties fought hard for the act (as well as for more restrictions, which did not pass, on the government’s ability to perform such surveillance).
The revelations of Edward Snowden, a former CIA analyst and NSA contract analyst, regarding the surveillance are well known and need no general summary. What is interesting, from a Fourth Amendment point of view, is whether the act renders moot the famous two-part test for determining whether an area enjoys privacy protection under the Fourth Amendment, announced in Justice John Marshall Harlan II’s concurring opinion in Katz v. United States, 389 U.S. 347 (1967), under which a court is first to determine whether the subject evinced a subjective expectation of privacy, and second to determine whether society finds that expectation to be reasonable (hence, the famous “reasonable expectation of privacy”).
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
