December 22, 2013

Regarding the Dec. 20 front-page article “Huge breach of data security at Target”:

And we worry about National Security Administration (NSA) getting our private communications? The thieves that hacked Target’s financial data are intent on harm. At least the NSA is honest.

MaryLou Bleakley, Arnold

In their Dec. 20 Washington Forum piece, “An ill-founded ruling against the NSA,” Michael B. Mukasey, Steven G. Bradbury and David B. Rivkin Jr. stated that “a reasonable expectation of privacy has been the measure for what constitutes a search under the Fourth Amendment.” This is only partially true.

In Katz v. United States and in Smith v. Maryland, the U.S. Supreme Court applied two tests to determine applicability of Fourth Amendment rights. The first test is whether people have a “subjective” expectation of privacy. This ambiguous standard puts the burden on the courts to infer what people’s expectations are without asking them. In Smith, the court divined arbitrarily that Americans do not expect their network of telephone contacts and associations to be considered private, irrespective of the content of those contacts. The current controversy over the National Security Agency suggests this is not so. The court also assumed that the pen register (metadata) has “limited capabilities.” We now know that its capabilities are infinite.

Smith also applied a test of “whether [an] individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances.” The court’s attempts to distinguish “subjective” and “objective,” and its question-begging attempts to define justifiable and reasonable, were not crystalline but confounding.

Martin B. Nass, Silver Spring