Yahoo Email Scan Shows US Spy Push To Recast Constitutional Privacy (reuters.com)

Yahoo Inc's secret scanning of customer emails at the behest of a U.S. spy agency is part of a growing push by officials to loosen constitutional protections Americans have against arbitrary governmental searches, according to legal documents and people briefed on closed court hearings. 

The order on Yahoo from the secret Foreign Intelligence Surveillance Court (FISC) last year resulted from the government's drive to change decades of interpretation of the U.S. Constitution's Fourth Amendment right of people to be secure against "unreasonable searches and seizures," intelligence officials and others familiar with the strategy told Reuters. 
The unifying idea, they said, is to move the focus of U.S. courts away from what makes something a distinct search and toward what is "reasonable" overall. 
The basis of the argument for change is that people are making much more digital data available about themselves to businesses, and that data can contain clues that would lead to authorities disrupting attacks in the United States or on U.S. interests abroad.
 While it might technically count as a search if an automated program trawls through all the data, the thinking goes, there is no unreasonable harm unless a human being looks at the result of that search and orders more intrusive measures or an arrest, which even then could be reasonable.
 Civil liberties groups and some other legal experts said the attempt to expand the ability of law enforcement agencies and intelligence services to sift through vast amounts of online data, in some cases without a court order, was in conflict with the Fourth Amendment because many innocent messages are included in the initial sweep.
 But the general counsel of the Office of the Director of National Intelligence (ODNI), Robert Litt, said in an interview with Reuters on Tuesday that the legal interpretation needed to be adjusted because of technological changes.***

A quote from Lewis Carroll’s “Alice In Wonderland”

“March Hare: …Then you should say what you mean.

Alice: I do; at least – at least I mean what I say — that’s the same thing, you know.

Hatter: Not the same thing a bit! Why, you might just as well say that, ‘I see what I eat’ is the same as ‘I eat what I see’!

March Hare: You might just as well say, that “I like what I get” is the same thing as “I get what I like”!

The Dormouse: You might just as well say, that “I breathe when I sleep” is the same thing as “I sleep when I breathe”!

***

 "The federal government has not justified its excessive secrecy about the massive telephone surveillance program known as Hemisphere, a court ruled in an EFF Freedom of Information Act lawsuit on Thursday." 

 The EFF announcement:  
As a result, the federal government must submit roughly 260 pages of previously withheld or heavily redacted records to the court so that it can review them and decide whether to make more information about Hemisphere public.

 Hemisphere is a partnership between AT&T and federal, state, and local law enforcement agencies that allows police almost real-time access to telephone call detail records. 

The program is both extremely controversial -- AT&T requires police to hide its use from the public -- and appears to violate our First and Fourth Amendment rights.
 
Government lawyers had argued the disputed documents were restricted to use at the federal level, but the court remained unconvinced, especially "after EFF demonstrated that many of them appeared to have been given to state and local law enforcement."