Friday, August 9, 2013

President Opens Up on Surveillance

President Obama today announced a new effort at transparency and oversight in government surveillance programs.  WaPo reports here; here's the transcript.

President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices."  He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court.  He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."

The President also released a Readers Digest version of the legal authority for bulk collection of telephony metadata under Section 215, and an NSA mission statement.

As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program.  That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority.  The administration also focused on controls over abuse of the authority under Section 215.

The document argues that the program violates neither the Fourth Amendment nor the First Amendment.  As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).

As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content.  Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.

SDS

http://lawprofessors.typepad.com/conlaw/2013/08/president-opens-up-on-surveillance.html

Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink

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