NSA reform report: Panelist Cass Sunstein on metadata storage | New Republic: JR: You recommend that the government shouldn’t have access to private information held by third parties (like telephone companies or Internet providers) without a court order. In her concurrence in the Jones GPS case, Justice Sonia Sotomayor identified the “third party doctrine,” which holds that Americans have no constitutionally protected expectations of privacy in data held by third parties, as the biggest threat to privacy today. Were you trying to address the problems with the third party doctrine?
CS: Our group wasn’t thinking in constitutional terms, but we were saying that if people’s bank records are of concern to the government, the government should have access only if there’s sufficient reason to get them. We believe that whatever the Fourth Amendment was originally understood to mean, it’s right in the modern era to say that fact that people dealing with a credit card or internet company doesn’t mean it’s open season on their transactions or communications.