Smith v. Obama

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant.

Brief filed: 09/09/2014

Documents

Smith v. Obama

9th Circuit Court of Appeals; Case No. 14-35555

Prior Decision

Decision below 2014 WL 2506421 (D. Idaho June 3, 2014) (No. 2:13-CV-257-BLW).

Argument(s)

The government’s wholesale, indiscriminate collection of all call records violates the Sixth Amendment right to counsel. The Sixth Amendment right to counsel depends on the privacy of communications between attorneys and clients. Because the bulk collection of telephone metadata destroys the privacy of these lawyer-client communications, it violates the Sixth Amendment. Because the bulk collection of metadata violates a legitimate expectation of privacy in lawyer-client communications, it violates the Fourth Amendment. The government’s bulk collection of phone metadata constitutes a “search” under the Fourth Amendment because it invades a legitimate expectation of privacy society recognizes as reasonable. This expectation of privacy can survive exposure to third parties. The expectation of privacy applies to identifying information.

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Author(s)

Catherine R. Gellis, Sausalito, CA; Michael H. Page and Joseph C. Gratz, Durie Tangri LLP, San Francisco, CA; David Porter, Sacramento, CA.