Four paramount tech legal cases to follow in 2014

01/02/2014 - 00:00

While we’re all wiping the champagne-induced sleep from our eyes, inevitably we have to sober up for 2014. The new year will mark new beginnings for all of us, but it will also mark the continuation (and perhaps conclusion) of a number of high-profile tech legal cases. We've chosen to highlight a few cases that could lead to profound changes in the tech landscape in years to come.

Without further ado, here's an update on the top four cases that we have our eyes on (in no order): the collective challenges to the National Security Agency spying, Megaupload, Silk Road, and Lavabit.

NSA spying litigation

The Snowden leaks made public a great deal of information about government surveillance, both at home and abroad. Arguably, the most stunning and controversial program was the first that was revealed: the dragnet collection of every phone number called. That bulk data collection program inspired at least two lawsuits against the government and changed the nature of a third case.

The two lawsuits have had starkly different results; with both now sure to rise to appeals courts, it seems likely that the issue will ultimately reach the US Supreme Court. Certainly, the court as currently composed hasn't been shy about weighing in on the most controversial and politically charged issues in recent years.

Klayman v. NSA was filed literally the day after the first revelations came out in The Guardian. Earlier this month, US District Judge Richard Leon published his widely cited opinion, calling the government's spying technology "almost Orwellian." He rejected the government's key legal precedent: Smith v. Maryland, a 1970s case that allowed the police to track numbers called from a single phone. In the age of the cell phone, wrote Leon, that's too weak a precedent for a massive surveillance program. The bulk data collection, he found, is likely unconstitutional.

But less than two weeks later, a federal judge in New York found just the opposite. In a challenge brought by the ACLU, US District Judge William Pauley ruled the group had no standing to challenge the law. He also found that even though the amount of information collected was "breathtaking," it didn't matter, because phone numbers dialed are simply not protected under the Fourth Amendment.

"Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones," wrote Pauley. "The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephony metadata."

A third challenge to NSA surveillance is Jewel v. NSA, a case that was actually filed in San Francisco in 2008. Back then, the Electronic Frontier Foundation believed there was some kind of data dragnet going on due to revelations made by an earlier whistleblower, AT&T technician Mark Klein, although the EFF didn't have the certainty or detail that has become available since the Snowden leaks. That case has been briefed and is awaiting a decision from the district court judge. 

Intelligence reformers in Congress believe the political momentum is with them now, and they're going to push hard to ban or sharply limit these programs no matter what happens with these cases. But change on the political level is far from a foregone conclusion; two months ago, a key Senate committee voted 11-4 for a nearly toothless reform bill that would allow the bulk collection to continue. In any case, the opinions of the three federal judges closely examining the surveillance programs is sure to weigh heavily on the minds of policy makers who consider the issue, making these cases ones to watch in 2014.