Tuesday, January 7, 2014

Does the NSA Spy on Congress?

Senator Bernie Sanders asked the NSA on Friday if it spies on Members of Congress.  As of Monday, he hadn't received an answer.  Here's Sanders on CNN:

 

January 7, 2014 in Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, December 30, 2013

Reconsidering the "Pen Register": Smith v. Maryland and the Constitutionality of NSA Surveillance

As we discussed earlier this month,  two federal district judges have reached opposite conclusions regarding the constitutionality of NSA surveillance as revealed by Edward Snowden.  In Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.

POLARISBoth of these opinions have brought renewed attention to the 1979 “pen register” case - - - Smith v. Maryland - - - which involved the application of the Fourth Amendment’s protection against “unreasonable searches and seizures” to a then new, and now outmoded, technology that could ascertain the number a phone was dialing.  As footnote 1 of Smith explained, “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.”  It is "usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line" to which it is attached.” 

In Smith, the Court looked to its “lodestar” 1967 decision in Katz v. United States (involving a telephone booth) and determined that there was no “search” under the Fourth Amendment because the person invoking the constitutional protection did not have a reasonable or legitimate expectation of privacy.  For the majority in Smith this lack of an expectation of privacy was based on  a consumer’s  understanding of telephone technology: telephone subscribers know that the telephone company receives their transmitted telephone number (that is how the call is completed) and can record that number (perhaps for a long distance charge).  And even if a consumer does not subjectively understand this, any expectation of privacy that such circumstances did not occur would not be legitimate.

Now Smith v. Maryland has become a “lodestar” decision of its own.  Judge Richard Leon's decision in Klayman extensively analyzed the opinion, eventually concluding that “the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”  To the contrary, Judge Pauley, granting the government's motion to dismiss in ACLU v. Clapper essentially used Smith as the opinion's guiding light.

But perhaps the choice is not as stark as whether Smith is steady in the Fourth Amendment skies.  Looking at Justice Blackmun’s opinion in Smith,  he illuminates the two prongs of Katz:

as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy,"  whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' "—whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances.5

[citations omitted].  Perhaps importantly, the passage ends with a footnote:

Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.

Law Prof Josh Blackman, over at his blog, has revealed the sources of this footnote - - - apparently necessary to address Justice Stevens’ concerns about a totalitarian regime that would make any expectation of privacy by individuals not reasonable or legitimate.  Josh Blackman reproduces the correspondence showing that Stevens asked for the footnote and got it, eliminating his need for a separate concurrence.  

Apparently, Justices Stewart, Marshall, and Brennan, who did dissent, had concerns that were not so simply assuaged.

Nevertheless, it’s interesting to deliberate footnote 5 in light of the extent to which Edward Snowden’s revelations about the extent of surveillance have been greeted as confirmatory and predictable rather than as shocking and outrageous.   And perhaps footnote 5 might become as important as other constitutional footnotes as we (re)consider what the expectations of privacy in a constitutional democracy should be.

[image: time-lapsed image of Polaris, the North Star, via]

 

December 30, 2013 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Fourth Amendment, Opinion Analysis, State Secrets, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, December 27, 2013

Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata

In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.

352px-TelephoneHelloNellieThe judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.

The tone of the opinion is set by Judge Pauley's opening:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment.  For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:

Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. 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. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.

For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy.  The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.

The absence of any Fourth Amendment claim means that there is not a First Amendment claim.  Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.

Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion.  In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue.  Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide."  Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon.  Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.

[image via]

 

December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Recommendations from President's NSA Surveillance Review Group

The anticipated report  from a panel of presidential advisors - - - Richard Clarke, Michael Morell, Peter Swire, and ConLawProfs Geoffrey Stone and Cass Sunstein - - -  has just been released from The White House.  It contains 46 recommendations, detailed in the Executive Summary and later discussed in the report.

Occuring amidst significant problems, such as the recent federal district judge's opinion casting doubt on the constitutionality of the  collection of metadata from Verizon and the Edward Snowden revelations, the report concludes that the "current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty."  But the report recognizes that government might need such metadata, and therefore recommends that it be held by "private providers or by a private third party."   The report also recommends a series of changes at NSA, including having the Director be a "Senate-confirmed position" and suggesting that the Director be a civilian (at least next time). 

There is some interesting constitutional analysis and rhetoric in the report.  For example, under "Principles," the first one is "The United States Government must protect, at once, two different forms of security: national security and personal privacy."  How should these interests be balanced?  The report, quite interestingly, says this:

It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. The suggestion has an important element of truth. Some tradeoffs are inevitable; we shall explore the question of balance in some detail. But in critical respects, the suggestion is inadequate and misleading.

Some safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, or gender. These prohibitions are foundational, and they apply both inside and outside our territorial borders.

The purposes of surveillance must be legitimate. If they are not, no amount of “balancing” can justify surveillance. For this reason, it is exceptionally important to create explicit prohibitions and safeguards, designed to reduce the risk that surveillance will ever be undertaken for illegitimate ends.

Certainly, there is much more to glean and analyze from the 300 plus page report, but some of the reasoning already seems noteworthy.

December 18, 2013 in Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Fundamental Rights, Privacy, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, December 16, 2013

Federal District Judge Grants Preliminary Injunction Against NSA Surveillance of Telephone Metadata

In his opinion in Klayman v. Obama, federal district judge (DDC) Richard Leon has granted a preliminary injunction against NSA surveillance of telephone metadata.  Judge Leon stayed the injunction "in light of the signficant national security interests at stake and the novelty of the constitutional issues."  And the preliminary injunction is limited to Larry Klayman and Charles Strange, barring the federal government from "collecting, as part of the NSA's Bulk Telephony Apple-iPhone-001Metadata Program, any telephony metadata associated with their personal Verizon accounts" and requiring the government to destroy any previously collected metadata. 

The "background" section of Judge Leon's opinion starts by specifically mentioning the "leaks" (his quotations) of classified material from Edward Snowden revealing the government's Verizon surveillance.   He then has an excellent discussion of the facts, statutory frameworks, and judicial review by the FISC (Foreign Intelligence Surveillance Court) [which others have called the FISA Court].

Judge Leon concluded that he did not have jurisdiction under the APA (Administrative Procedure Act), but that the plaintiffs did have standing to raise a constitutional claim under the Fourth Amendment.  On the substantial likelihood to prevail on the merits necessary for success on the preliminary injunction, Judge Leon ruled - - - importantly - - - that the collection of metadata did constitute a search.   Judge Leon also concluded that the collection of the metadata did violate a reasonable exepectation of privacy.   Judge Leon noted that technological changes have made the rationales of Supreme Court precedent difficult to apply, so that cases decided before the rise of cell phones cannot operate as a precedential "North Star" to "navigate these uncharted Fourth Amendment waters."  

Having found there was a search that invaded a reasonable expectation of privacy, Judge Leon then concluded that the search was unreasonable.  Important to this finding was the efficacy prong of the analysis - - - or in this case, the inefficacy prong.  Judge Leon noted that the "Government does not cite a single instance in which the analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original).

Judge Leon acknowledged that some other judges have disagreed with his conclusions, and that the matter is far from clear, but he stated:

I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' that this systemtaic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and anlyzing it without prior judicial approval.

As the above makes clear, it is not only the Fourth Amendment that Judge Leon feels has been violated, but the role of Article III courts in the constitutional separation of powers scheme.

 

 

December 16, 2013 in Courts and Judging, Criminal Procedure, Fourth Amendment, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 19, 2013

Daily Footnote: Redacted Definitions in FISA Court Opinion

Among the materials released today as we discussed earlier, is the 87 page opinion by the Presiding Judge of the Foreign Intelligence Surveillance Court, again difficult to name or cite given that the usual caption material is redacted:

Page 1 FISA

 

But the opinion's footnote 27 with the portions redacted - - - and not redacted - - - does deserve special notice:

Fn 27

"For ease of reference, the term XXXXXXXXXXXXX   is used to mean  XXXXXXXXXXXXXX." 

 

November 19, 2013 in Courts and Judging, First Amendment, Fourth Amendment, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Government Releases Trove of NSA Documents

The Obama administration late Monday released a trove of documents related to NSA surveillance, including key FISA court rulings and other materials going back to the Bush administration.  The NYT reports here.  Lawfare is covering the release and analyzing particular documents here.

The materials include documents on government e-mail and domestic phone surveillance, including the Bush administration's 2006 application for initial approval by the FISA court to collect bulk logs of domestic phone calls and a FISA court ruling approving a program to track e-mails during the Bush administration.

The Office of the Director of National Intelligence declassified and released the documents in response to FOIA lawsuits by the ACLU and EPIC.

 

November 19, 2013 in Congressional Authority, Executive Authority, Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 18, 2013

Supreme Court Refuses to Grant Extraordinary Writ to Review FISA's Verizon Surveillance Order

In its routine order list today, the Court's list of "MANDAMUS DENIED" included "13-58 - IN RE ELECTRONIC PRIVACY INFORMATION CENTER." 

The petition for writ of mandamus and prohibition or writ of certiorari was filed by the Electronic Privacy Information Center and essentially sought review of an Order from the Foreign Intelligence Surveillance Court.  The order redacts the names of the parties from whom the "tangible things" are sought, but the petition describes the order as compelling "Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."

Telefon,_Nordisk_familjebok

As one of its Questions Presented, the petition stated:

Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. § 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications “wholly within the United States, including local telephone calls.” 

The import of the Supreme Court's denial is both trivial and momentous.  On the one hand, there is little if anything to be read into the Court's refusal to exercise its highly discretionary power to grant a petition for a writ as it does in 1% of cases.  On the other hand, there is something to be inferred about the Court's interest in and willingness to supervise the unusual FISA given constitutional rights.

But the Court's failure to accept the case certainly does not mean the underlying issues will be so easily dispatched.

 

November 18, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, International, State Secrets | Permalink | Comments (3) | TrackBack (0)

Sunday, October 27, 2013

Government Notifies Defendant of Warrantless Wiretap, Tees Up Challenge

The Department of Justice for the first time notified a criminal defendant that evidence against him was obtained through a warrantless wiretap, according to the New York Times.  The move gives the criminal defendant the standing to challenge warrantless wiretapes that the plaintiffs in Clapper v. Amnesty International lacked and invites his challenge of warrantless wiretaps.  Our previous post on the issue is here.

The defendant, Jamshid Muhtorov, is charged with "provid[ing] and attempt[ing] to provide material support and resources, to wit: personnel . . . to a foreign terrorist organization, specifically the Islamic Jihad Union . . . knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States" in violation of 18 U.S.C. Sec. 2339B.  The notice says that the government

hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. Secs. 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 . . . .

The Supreme Court held that the plaintiffs in Clapper lacked standing to challenge warrantless wiretaps, because they couldn't show that they'd been, or would be, wiretapped under the specific statutory authority they sought to challenge.  Now that the government has disclosed that its evidence resulted from warrantless wiretaps, Muhtorov has clear standing to challenge the wiretaps. 

This merely puts the legality of the wiretaps before the courts; it doesn't answer the underlying question.  For that, we'll have to await the ruling and appeals.

October 27, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Fourth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Sunday, September 29, 2013

Daily Read: Two Views of NSA

It's worth comparing two views of the National Security Administration (NSA) and its searches.

First, take a look at the views of Amy Zegart, the co-director of Stanford University's "Center for International Security and Cooperation."  Zegart and other scholars participated in a "rare briefing" at NSA to consider "cybersecurity, the plummeting public trust in the agency, its relationship with Congress and how to rebuild the agency’s reputation and rethink its program operations."  Zegart's interview is mostly sympathetic to NSA concerns, but she does say this:

They definitely wanted us to believe that what they are doing is lawful and effective. I believe the lawful part; I’m not so sure about the effective part. I think they haven’t looked hard enough about what effective means. Do they know it when they see it? And who’s to judge?

800px-Postcards_and_magnifying_glass

 

Nevertheless, it's a rather sharp contrast with a NYT article, co-authored by James Risen (recall his lititgation asserting a reporter's First Amendment right to protect sources) and Laura Poitras (recall her involvement in the Snowden revelations) that discusses wide ranging collection of data and metadata.  They often rely on anonymous sources discussing classified information.   Perhaps most startling is this passage in the article's last paragraph, quoting from a 2011 memo, that said even

after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later.

[image via]

 

September 29, 2013 in Current Affairs, Fourth Amendment, International, News, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, September 15, 2013

Daily Pic: Information Dominance Center

Screen Shot 2013-09-15 at 9.58.53 AM
via 

The image is from an architectural brochure linked in Glenn Greenwald's article this morning in The Guardian, "Inside the mind of NSA chief Gen. Keith Alexander," subtitled "A lavish Star Trek room he had built as part of his 'Information Dominance Center' is endlessly revealing."

Worth a look - - - and read - - - for anyone working on national security, state secrets, or surveillance issues. 

 

September 15, 2013 in Current Affairs, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 5, 2013

Daily Read: Interview with the Authors of Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America

EnemiesWithin3D

Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America is the just released book that lots of people who have an interest in surveillance and its constitutionality are talking about.

The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read.  For example, the authors say that some police officials essentially said "Hey look we have to think differently about activities that would be protected by the First and Fourth Amendments because they could actually be precursors to terrorism."   As one author responds: "That's just an incredible thing, when you think about the fact that a municipal police department is taking it upon itself [to decide] that constitutionally-protected speech is a warning sign for terrorism."

The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.

The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013.  Info and rsvp here.

 

September 5, 2013 in Books, Current Affairs, First Amendment, Fourth Amendment, Race, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

ACLU, Government File Motions in NSA Call-Tracking Case

The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data.  We most recently posted on the NSA program, in EFFs suit against it, here.

The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program.  The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.

At the same time, the government filed a motion to dismiss.  The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.

Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International.  In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States.  The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them. 

Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients.  In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.

August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, August 12, 2013

Federal District Judge Shira Scheindlin Finds NYCPD's Stop and Frisk Policies Violate Equal Protection

In a 198 page opinion today, accompanied by a 39 page order and opinion as to remedies, United States District Judge Shira Scheindlin has found the New York City Police Department's stop and frisk policies unconstitutional.  (Recall Judge Scheindlin enjoined the NYPD's stop and frisk practices in the Bronx earlier this year).

459px-NYPDNYCUnitedStatesofAmericaIn the closely watched case of Floyd v. City of New York, Judge Scheidlin's opinion is an exhaustively thorough discussion of the trial and at times reads more like a persuasive article than an opinion: it  begins with epigraphs, has a table of contents, and has 783 footnotes.  It also - - - helpfully - - - has an "Executive Summary" of about 10 pages.  Here is an excerpt:

Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.” “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” 

The Fourth Amendment protects all individuals against unreasonable searches or seizures. . . . 

The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.” 

The following facts, discussed in greater detail below, are uncontested: 

  • Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.

  • The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.

  • 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.

  • 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.

  • 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.

  • In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.

  • In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.

  • In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.

Near the end of the opinion, Judge Scheindlin astutely expresses the problem that has complicated relations between Fourth Amendment and Equal Protection arguments, as we recently discussed about racial profiling in Arizona.  She solves the problem firmly on the side of Equal Protection:

The City and the NYPD’s highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion.  This position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference. As I have emphasized throughout this section, the Constitution “prohibits selective enforcement of the law based on considerations such as race.”  Thus, plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless. A police department that has a practice of targeting blacks and Hispanics for pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior. Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those races as compared to other races, which will then increase their representation in crime statistics. Given the NYPD’s policy of basing stops on crime data, these races may then be subjected to even more stops and enforcement, resulting in a self-perpetuating cycle.

The Equal Protection Clause’s prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites. Individuals of all races engage in suspicious behavior and break the law. Equal protection guarantees that similarly situated individuals of these races will be held to account equally.

 This important, scholarly, and thorough opinion is sure to set a standard of judicial craft.  It is also sure to be appealed by the City of New York.

RR

August 12, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

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

August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

EFF Challenges NSA Surveillance Program

The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved.  The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.

We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.

SDS

July 17, 2013 in Association, Cases and Case Materials, Fifth Amendment, First Amendment, Fourth Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

Scrutiny of the FISA Court

The Foreign Intelligence Surveillance Court, or FISC, has come under increasing scrutiny in recent weeks, after Edward Snowden leaked an order of that court directing Verizon to turn over "comprehensive communications routing information" to the NSA.  We posted here on EPIC's petition to the Supreme Court to overturn that order.

In particular, critics are taking aim at the FISC's secrecy, the un-adversarial nature of its proceedings, and the appointment process for its judges.  (The FISC's decisions, though tremendously important, are classified; only the government, and not private individuals subject to surveillance, gets to make arguments to the FISC; and the Chief Justice alone appoints and details sitting federal judges to the FISC.)

Eric Lichtblau framed some of the issues last week in the NYT, and Orin Kerr reacted on Volokh.  The WSJ reported on the expanding definition of "relevant" in the FISC's jurisprudence--important because under federal law the FISC can order the production of tangible things that are "relevant to an authorized investigation."  That question--how far does "relevant" extend--is front-and-center in EPIC's petition at the Supreme Court.

Bloomberg editors took aim at the FISC's "missing checks and balances," adopting a recommendation by Kerr that an independent office in DOJ should advocate for privacy at the FISC, in order to create some measure of adversity before the court.  Bloomberg editors also recommended changing the appointment process--a recommendation echoed at Bloomberg by Noah Feldman and Ezra Klein.  In particular, critics worry that the current method of appointment could lead to a kind of group-think among judges on the FISC--a worry that seems supported by the government's breathtaking success rate at the court.

There is some legislation in Congress to address these concerns, one way or another.  For example, H.R. 2440, the FISA Court in the Sunshine Act of 2013, would require the disclosure of FISC decisions, or an explanation why they can't be disclosed.  H.R. 2475, the Ending Secret Law Act, and S. 1130, would do the same thing.  H.R. 2586, the FISA Court Accountability Act, would provide for the appointment of FISC judges by the Chief Justice and by congressional leaders.

SDS

July 10, 2013 in Congressional Authority, Courts and Judging, Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, June 23, 2013

Muslim Surveillance in NYC: Federal Complaint Challenges Constitutionality of Practices

4-nypd-casepage-mgb-150x150-v01The complaint in Raza v. City of New York details over 150 paragraphs of facts and alleges that NYPD practices have infringed upon the plantiffs' equal protection and First Amendment religion clauses rights, as well as state constitutional rights.  The plaintiffs are United States citizens as well as Muslim community leaders, as well as two mosques and one chartitable organization.  They allege that they have been "religiously profiled" and subject to surveillance, including infiltration of their organizations.

The complaint is worth reading for its specific facts of an extensive practice of surveillance of the named plaintiffs. Interestingly, the complaint does not include a Fourth Amendment claim but does include a First Amendment Establishment Clause claim, contending that the NYPD practice "fosters an excessive government entanglement with religion by, among other things, subjecting Plaintiffs to intrusive surveillance, heightened police scrutiny, and infiltration by police informants and officers."   More predictable are the equal protection and free exercise of religion claims.  

With the increasing public discussion of generalized surveillance, this challenge to a specific tageted practice within a city is worth watching.  Of course, it is not the first time that the NYPD has been challenged for its practices of surveillance.

RR
[image: logo of the plaintiff organization via]

 

June 23, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Establishment Clause, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

Ninth Circuit Dismisses Challenge to TSP, Request to Destroy Records

The Ninth Circuit today dismissed a case first challenging the Bush Administration's warrantless wiretap program (the Terrorist Surveillance Program, or TSP) and later requesting destruction of records retained from that program.  The case, In re National Security Agency Telecommunications Records Litigation, was brought by the Center for Constitutional Rights.  CCR's information page, including links to earlier filings and rulings, is here.

The Ninth Circuit dismissed the case in a very brief, unpublished decision that relied on the Supreme Court's ruling in Clapper v. Amnesty International.  Recall that the Court in that case dismissed a challenge to the government's surveillance program under the FISA Amendments Act of 2008.  The Court ruled that the plaintiffs lacked standing, because they could not demonstrate that they were injured by the Act.

So too, here, the Ninth Circuit said.  The court ruled that CCR had the same "highly attenuated chain" of alleged injury with one difference: the Amnesty International plaintiffs challenged a program with judicial oversight (by way of the FISC), whereas the CCR case challenged a program with no judicial oversight.  Still, the Ninth Circuit said that "CCR's asserted injury relies on a different uncertainty not present in Amnesty Int'l, namely, that the government retained 'records' from any past surveillance it conducted under the now-defunct TSP."

The ruling puts an end to CCR's efforts to destroy any records that the government retained under the TSP.  Indeed, it puts an end to efforts to determine whether the government even retained any such records at all.

SDS 

June 10, 2013 in Cases and Case Materials, Executive Authority, Fourth Amendment, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 30, 2013

Eleventh Circuit on Florida's Mandatory Drug Testing of Public Employees

An Eleventh Circuit panel has rendered its opinion in AFCME v. Scott regarding the Executive Order of controversial Florida Governor Rick Scott requiring drug testing of all prospective state employees and random testing of all state employees.   The panel held that the Executive Order  "almost certainly sweeps far too broadly and hence runs afoul of the Fourth Amendment in many of its applications." 

But it also held that last year's opinion by Judge Ursula Ungaro of the Southern District of Florida that enjoined the Executive Order "also swept too broadly and captured both the policy’s constitutional applications and its unconstitutional ones." 

The gist of the panel's 61 page opinion is that Supreme Court cases such as Skinner v. Ry. Labor Execs.’ Ass’n (1989) hold that some categories of state employees may be drug tested without individualized suspicion and that a court must "balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy."  

Note that this is distinct from situation seeking mandatory drug testing of welfare recipients - - - an injunction against which the Eleventh Circuit affirmed earlier this year.

800px-Martin_Johnson_Heade_-_Florida_Sunrise_-_Google_Art_Project
The complexities of the panel's opinion revolve around the procedures for accomplishing this balancing.  The original complaint as well as the appellate court's role were amply discussed by the panel. 

But the panel also spent considerable space on the State's "bold" argument that the Executive Order could "justify suspicionless drug testing of all 85,000 government employees regardless of the nature of their specific job functions."  The panel was "unpersuaded," and detailed its rejections of the State's arguments.

Thus, the panel gave clear guidelines to the district judge, remanding the case for a more limited injunction against the "sweeping" Executive Order. 

RR
[image: "Florida Sunrise" via]

 

May 30, 2013 in Courts and Judging, Fourth Amendment, Opinion Analysis, Privacy | Permalink | Comments (0) | TrackBack (0)