Thursday, January 4, 2018
Today brings the news that the President is contemplating litigation to halt the publication of Fire and Fury:Inside the Trump White House by Michael Wolff. This followed a reported cease and desist letter to former White House "chief strategist" and insider Steve Bannon for talking with Wolff in alleged violation of a nondisclosure agreement.
The letter to the book's publisher is reportedly based on a claim of defamation:
“Actual malice (reckless disregard for the truth) can be proven by the fact that the Book admits in the Introduction that it contains untrue statements. Moreover, the Book appears to cite to no sources for many of its most damaging statements about Mr. Trump. Also, many of your so-called ‘sources’ have stated publicly that they never spoke to Mr. Wolff and/or never made the statements that are being attributed to them. Other alleged ‘sources’ of statements about Mr. Trump are believed to have no personal knowledge of the facts upon which they are making statements or are known to be unreliable and/or strongly biased against Mr. Trump.”
But behind the obvious relevance of New York Times v. Sullivan (1964) which set the doctrine of actual malice for defamation under the First Amendment, lurks another case involving the New York Times: New York Times v. United States (1971), often called the "Pentagon Papers Case."
It is the Pentagon Papers Case that solidified the disfavor for prior restraint.
The brief per curiam opinion in the 6-3 decision stated that there is "a heavy presumption against its constitutional validity," and the government "thus carries a heavy burden of showing justification for the imposition of such a restraint." While it is certainly the United States government that is a party to the Pentagon Papers Case, most commentators and scholars believe that it was President Nixon who was at the forefront of the attempt to stop publication of the papers. Arguably, the Pentagon Papers involved "state secrets," but President Trump, like Nixon, has been criticized as conflating his own interests with that of the government.
It's thus a good time to reconsider the continuing relevance of the case and its litigation. One perspective is available in the movie The Post involving the Pentagon Papers and starring Meryl Streep as Katharine Graham, the publisher of The Washington Post.
Another good perspective is a recent conversation between James C. Goodale, author of Fighting for the Press: the Inside Story of the Pentagon Papers and Other Battles and Jeremy Scahill, one of the founders of The Intercept and author of Dirty Wars: The World Is a Battlefield, which I moderated at CUNY School of Law.
Here's the video:
January 4, 2018 in Books, Campaign Finance, Conferences, Current Affairs, Executive Authority, First Amendment, News, Separation of Powers, State Secrets, Supreme Court (US) | Permalink | Comments (0)
Thursday, May 7, 2015
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 25, 2015
Judge Edgardo Ramos (SDNY) dismissed a private defamation case this week after the government moved to intervene and asserted the state secrets privilege. Judge Ramos ruled that moving forward with the case at all (even excluding privileged evidence) would "impose an unjustifiable risk of disclosing state secrets." The ruling thus puts an end to the case, unless and until appealed. It is not a ruling on the merits, however.
The case, Restis v. American Coalition Against Nuclear Iran, involves Greek shipping magnate Victor Restis's defamation claim against the group United Against Nuclear Iran for claiming, as part of its "name and shame" campaign, that Restis was involved in the illegal exportation of Iranian oil in violation of international sanctions. Restis sued UANI, and the government intervened and moved to dismiss on state secrets grounds, filing a classified declaration by the head of the government department that has control over the matter in support. (The government asserted, and the court apparently accepted, that the government couldn't even reveal "the department that has control over the matter" without risking the disclosure of secret information.)
Judge Ramos reviewed the declaration in camera and held two ex parte, in camera meetings with the government before determining that the state secrets privilege applied. "Having carefully reviewed the classified declarations and documents submitted by the Government ex parte, and being cognizant of a district court's obligation to grant 'utmost deference' to the executive's determination of the likely import of disclosure of the information on military or diplomatic security, the Court is satisfied that there is a reasonable danger that disclosure of the facts underlying the Government's assertion would in fact jeopardize national security."
Judge Ramos went on to say that "further litigation of this action would impose an unjustifiable risk of disclosing state secrets" and dismissed the case entirely. (Under the state secrets privilege, Judge Ramos might have allowed the case to move forward without the privileged evidence. But here, he said, any further litigation would risk disclosure.)
Notably absent from the ruling was any discussion of the state secrets privilege as a separation-of-powers principle. (Treating the privilege as a separation-of-powers principle has in the past led to a much more robust privilege, as in the Fourth Circuit's ruling in El-Masri.) Instead, Judge Ramos treated the privilege as it was designed and as the government apparently asserted it--as an evidentiary privilege. Even so, the government's assertion of the privilege resulted in the dismissal of the entire case.
Judge Ramos rejected the plaintiff's arguments that the government shouldn't be able to rely only on ex parte submissions for its assertion and that the case could be litigated in an in camera trial--because the evidence was apparently too secret even to tell the lawyers. Judge Ramos wrote, "The nature of the information here requires that counsel not be granted access."
Judge Ramos gave a hat tip--but only a hat tip--to the plaintiff's interest in access to justice:
The Court recognizes that dismissal is a "harsh sanction." It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why.
Still, he said that "dismissal is nonetheless appropriate," because "there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue."
March 25, 2015 in Cases and Case Materials, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 15, 2014
With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo. In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source.
Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT. As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).
Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others. The segment explains and situates the controversy, including its current status under President Obama. It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted."
The entire segment is definitely worth watching:
Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:
AMY GOODMAN: So, you’re covering the very people who could put you in jail.
JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.
A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here). One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.
For ConLawProfs teaching First Amendment, these "sources" could be well-used.
October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, August 11, 2014
Here's the call for what looks like an important conference:
Call for Papers
The staff of the Lincoln Memorial University Law Review invites submissions related to its Spring 2015 Symposium entitled “The Snowden Effect: The Impact of Spilling National Secrets.” The Symposium will be held on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee.
The LMU Law Review’s goal for the Symposium is to facilitate discussion among scholars and practitioners regarding the implications of the national security disclosures by former government contractor Edward Snowden. Topics will include, but not necessarily be limited to: the protection of government sources and methods; Fourth Amendment and privacy issues; the effect of the Snowden disclosures and other such security leaks on U.S. foreign policy, particularly or relationships with our allies; surveillance state concerns; and the classification of government material.
The LMU Law Review will publish a dedicated symposium issue related to the Symposium’s theme. The Law Review welcomes submissions for this specially-themed issue, which will be comprised of several articles, notes, and essays bringing together leading experts on the theory, application, and scholarly analysis of these contemporary national security issues.
To be considered for publication in the symposium issue, please submit by October 15, 2014: (1) an abstract or a draft article; and (2) a curriculum vitae (CV). Participation in the Symposium is not a requirement for publication in the symposium issue. All materials should be submitted through the LMU Law Review’s website.
For more information contact the Editor in Chief of the law review at jacob.baggett (AT)lmunet.edu.
Wednesday, June 25, 2014
In her opinion in Latif v. Holder, Judge Anna Brown of the District of Oregon concluded that the "no-fly list" violates the Fifth Amendment's guarantee of due process.
Judge Brown's well-crafted 65 page opinion applies the well-established "balancing test" for procedural due process first articulated by the United States Supreme Court in 1976 in Mathews v. Eldridge. Under this test, a court weighs several factors to determine "how much process is due":
- the interests of the individual and the injury threatened by the official action;
- the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
- the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
After analyzing the factors and weighing the government's interest in preventing terrorism heavily, Judge Brown considered similar "terrorism" cases and noted that the
Plaintiffs in this case were not given any notice of the reasons for their placement on the No—Fly List nor any evidence to support their inclusion on the No—Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient [in another case].
Moreover, the government's failure to provide any notice of the reasons for Plaintiffs’ placement on the No—Fly List
is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of reasonable suspicion supported by "articulable facts . . . taken together with rational inferences” is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.
[ellipses in original]. Thus, she concludes that "without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the no-fly list."
In granting partial summary judgment in favor of the Plaintiffs, Judge Brown directed the government defendants to "fashion new procedures" that provide the Plaintiffs with the requisite due process "without jeopardizing national security."
Certainly this litigation, which already has an extensive history, is far from over, but Judge Brown's finding of a lack of procedural due process in the government's no-fly lists is exceedingly important.
Monday, June 2, 2014
The United States Supreme Court denied certiorari in the closely watched case of Risen v. United States (13-1009).
Recall our analysis of the sharply divided Fourth Circuit panel opinion in United States v. Sterling, with James Risen as Intervernor, that declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
Sunday, April 6, 2014
Need to find a particular document or search for a particular name in the trove of items made available from the National Security Agency? Or just want to look around?
The ACLU now has a handy database, available here.
As the announcement explains:
This tool will be an up-to-date, complete collection of previously secret NSA documents made public since last June. The database is designed to be easily searchable – by title, category, or content – so that the public, researchers, and journalists can readily home in on the information they are looking for.
We have made all of the documents text-searchable to allow users to investigate particular key words or phrases. Alternatively, the filter function allows users to sort based on the type of surveillance involved, the specific legal authorities implicated, the purpose of the surveillance, or the source of the disclosure. For example, you can have the database return all documents that both pertain to "Section 215" and "Internal NSA/DOJ Legal Analysis."
An important tool for scholars and advocates.
Tuesday, April 1, 2014
In the oral arguments last week in Wood v. Moss and the Court's 2012 decision in Reichle v. Howards, the Secret Service was center stage. Recall that both cases involve qualified immunity for Secret Service agents against constitutional claims and raise the specter that the individual agents acted inappropriately. And in both cases, there is some valorization of the agents and their difficult task of protecting the President (in Wood) and the Vice-President (in Reichle).
Arguing for the United States Government in Wood v. Moss, the Deputy Solicitor General expressed the fear that not upholding qualified immunity would lead to a "demoralization of the service leaning in the direction of being overly careful and therefore risking the life of the President" and that allowing discovery is "exactly the nightmare scenario that the Secret Service fears" including "
discovery into what the agents were thinking" and "what the Secret Service's policies were."
And in Reichle, Justice Ginsburg concurring in the unanimous opinion, discusses the difficult facts in the case as well as deference to the agents' role:
Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard.
But one wonders how positive views of the Secret Service suffer given recurrent scandals involving the Secret Service. As the United States Supreme Court was considering Reichle, there was the scandal in Colombia involving more than a dozen agents, but a later Homeland Security report (official synposis here) found that there was not "widespread sexual misconduct." Most recently, at least one agent assigned to protect the President was reportedly "found drunk and passed out in a hotel hallway." This latest scandal was reportedly not good news for the Secret Service's first woman director who has "tried to implement reforms." One former Secret Service agent writes in a WaPo op-ed that the problem is not bad agents but bad leadership."
But whether attributed to bad leadership or what might be called "bad apples," should these revelations about the bad judgments of secret service agents influence the Court's own judgments? Doctrines such as qualified immunity and strict pleading requirements that prevent discovery serve to protect Secret Service agents from their "nightmares" (as the Deputy Solicitor General phrased it), but might they also insulate the Secret Service from responsibility for the nightmares they cause others.
Tuesday, February 11, 2014
Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.
The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act). The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues. The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."
The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.
While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments. Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.
February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, February 10, 2014
A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today. It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.
Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."
The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program. It ends by implicating President Obama:
Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.
And Obama may even think it's one a "strong suit" of his.
This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.
Friday, January 17, 2014
In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities," regarding NSA Surveillance. Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - 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 - - - and that the national discussion on this issue is largely attributable to Edward Snowden.
While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
But the details, as usual, can be a bit more perplexing. For example, consider this qualification to "competitive advantage" :
Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.
The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive. Afterwards, it tweeted the results of its assessment of Obama's performance:
January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Monday, January 13, 2014
In brief, the answer it proposes is "no."
The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall. As Cyrus Farivar over at Ars Technica points out, the lead author Peter Bergen is well known as "a journalist and terrorism analyst who famously interviewed Osama bin Laden for CNN in 1997."
The report confirms federal District Judge Richard Leon's statement in his opinion in Klayman v. Obama that "the Government does not cite a single instance in which 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). Recall that Judge Leon issued a preliminary injunction against the surveillance, although he then stayed it.
Recall also that another federal district judge dismissed a complaint raising essentially the same issues a week later in American Civil Liberties Union v. Clapper.
With President Obama evaluating the NSA surevillance program including the Recommendations from President's NSA Surveillance Review Group and with the question of whether the NSA's surveillance extends to members of Congress being asked, this newest report deserves to be read closely. If there is a balance to be struck between security and liberty, the efficacy of the security measures are certainly relevant.
Tuesday, January 7, 2014
A new book, The Burglary: The Discovery of J. Edgar Hoover's Secret FBI by Betty Medsger tells the "never-before-told full story of the 1971 history-changing break-in of the FBI offices in Media, Pennsylvania" that made clear the "shocking truth" that J. Edgar Hoover was spying on Americans and which led to the Ciontelpro scandal.
The NYT report compares the 1971 incident to contemporary events:
"Unlike Mr. Snowden, who downloaded hundreds of thousands of digital N.S.A. files onto computer hard drives, the Media burglars did their work the 20th-century way: they cased the F.B.I. office for months, wore gloves as they packed the papers into suitcases, and loaded the suitcases into getaway cars. When the operation was over, they dispersed. Some remained committed to antiwar causes, while others, like John and Bonnie Raines, decided that the risky burglary would be their final act of protest against the Vietnam War and other government actions before they moved on with their lives."
The NYT video, part of its "retro report" series is definitely worth a watch.
On NPR, one important aspect is how Betty Medsger obtained and accessed the information:
"I think most striking in the Media files at first was a statement that had to do with the philosophy, the policy of the FBI," Medsger says. "And it was a document that instructed agents to enhance paranoia, to make people feel there's an FBI agent behind every mailbox."
The NPR segment is definitely worth a listen:
Monday, December 30, 2013
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.
Both 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]
Monday, December 23, 2013
The Director of National Intelligence this weekend released previously classified DNI and NSA declarations in support of the government's assertions of the state secrets privilege in litigation challenge the TSP program. We posted on the government's assertion of the state secrets privilege in Jewel v. NSA here.
The cases, Jewel v. NSA and In re National Security Agency Telecommunications Record Litigation, both in the Northern District of California, challenged the NSA's "dragnet" surveillance program. The declarations say that no such program exists, and that to defend the cases would reveal national security secrets.
Thursday, December 12, 2013
Janet Reitman's excellent article in Rolling Stone entitled "Snowden and Greenwald: The Men Who Leaked the Secrets" and subtitled "How two alienated, angry geeks broke the story of the year" is worth a read, nevermind the tags meant to attract Rolling Stone's target demographic. With this past summer's New York Time magazine article "How Laura Poitras Helped Snowden Spill His Secrets" by Peter Maas, there is much in both of these pieces that merits consideration.
True, the articles are journalistic. Reitman tells us that for "a man living in the middle of a John le Carre' novel, Greenwald has a pretty good life." She then talks about his dogs (also mentioned in the article by Maas). It's the stuff of human interest stories. But Reitman also gives Greenwald's story of lawyering: first with a law firm and then in his own practice, "defending the First Amendment rights of neo-Nazis.":
It was one of Greenwald's prouder accomplishments as an attorney. "To me, it's a heroic attribute to be so committed to a principle that you apply it not when it's easy," he says, "not when it supports your position, not when it protects people you like, but when it defends and protects people that you hate."
Monday, November 18, 2013
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."
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.
Friday, November 1, 2013
Dave Eggers' new novel, The Circle, is a thought-provoking read for anyone working on surveillance, state secrets, corporate governance, privacy, or First Amendment issues as broadly defined. There are have been some questions raised, as in the review in Wired, whether the book is technologically sophisticated - - - I'd say it's not - - - or whether it works as literature - - - again, I'd lean towards not. I also think there are some gender and sexual politics that merit further analysis and mar the novel. But even with these faults, it is one of those books that gives expression to the way one sees daily life in our connected age.
Margaret Atwood has a terrific review of the book in New York Review of Books that gives a good overview of the themes, laced with literary references that the novel itself lacks. Discussing the book over at the New Yorker Blog, Betsy Morais contextualizes the novel, including some of the criticisms and analogues. There's a good rundown of reviews and the divisions about the book in The Atlantic "Wire."
The book lingers after it is read because it raises interesting questions about the relationships between corporate power and government, as well as our complicity in this internet and social age. And it's a quick read - - - especially electronically.
UPDATE: And here's the NYT Sunday Book Review by Ellen Ullman, who concludes the novel "adds little to the debate" : "Books and tweets and blogs are already debating the issues Eggers raises: the tyranny of transparency, personhood defined as perpetual presence in social networks, our strange drive to display ourselves, the voracious information appetites of Google and Facebook, our lives under the constant surveillance of our own government."
Monday, October 21, 2013
A few Power Point slides are published in Le Monde. But Journalist Glenn Greenwald and Edward Snowden have also released additional Power Point Slides that are worth a look. A set of eleven slides have some redactions, but will also seem eerily familiar to anyone who has ever prepared or seen a Power Point presentation: