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.
The 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.
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
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.
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 4, 2013
Here's a terrific exploration in video form of the decision and its impact on Pasadena, Texas, by Kali Borkoski of SCOTUSBlog.
This short clip would be an excellent in-class introduction to the issues - - - and could be updated depending on the outcome of the local election.
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."
Wednesday, October 9, 2013
Chelsea Manning, convicted as Private Bradley Manning in a controversial military trial for revealing information to WikiLeaks, issued the first statement since her conviction, prompted in part by receiving a peace award. She stated that although her actions may have had pacficist "implications," she does not consider herself a pacifist. Rather, she is a "transparency advocate." The statement also contains specific discussion of gender identity. Manning's two page statement is worth a read, as is the accompanying article in The Guardian (to whom the statement was released) by Ed Pilkington.
Meanwhile in New York City, the latest and most ambitious project of the British public artist Banksy in his self-proclaimed October artist's residency on the streets of New York, alludes to Manning. The street art's references might be somewhat illusive to a casual observer:
But Banksy's site featuring this image (as well as another), also includes an "audio guide." It derives from some of the materials that Manning disclosed. Gothamist has a good explanation (and more photos). The Village Voice has excellent (with continuing) coverage of Banksy's art here and a profile with quoted material here.
Friday, October 4, 2013
The United States Supreme Court will consider the constitutionality of "legislative prayer" in Town of Greece v. Galloway this Term, with oral arguments scheduled for November 6, 2013. As we discussed previously, the Obama Administration has filed a brief supporting the Town of Greece. Recall also that the Second Circuit found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and thus violated the Establishment Clause.
This video from PBS provides a great overview (in 7 minutes) of the case, and a transcript is also available.
This could be a great video to show in class as a prelude to discussion of the arguments.
Tuesday, October 1, 2013
In an unanimous opinion in Marceaux v. Lafayette City-Parish Consolidated Government, a panel of the Fifth Circuit reversed and remanded the district court judge’s protective order requiring that the Plaintiffs, current and former police officers in the City of Lafayette, Louisiana, “take down” their website - - - "http://www.realcopsvcraft.com" - - - used to communicate their cause. (Note: the website is presently not operable).
The underlying lawsuit by the Plaintiff police officers claims that the government Defendants sought to “prevent police officers from reporting certain civil rights abuses and corruption” within the police department and “retaliated against them for objecting to these practices.” The website had “an image of the Lafayette Police Chief, a party in this suit; excerpts of critical statements made in the media concerning the Lafayette PD Defendants; certain voice recordings of conversations between the Officers and members of the Lafayette Police Department; and other accounts of the Lafayette PD Defendants’ alleged failings.” The website seemed to have been once owned by the Plaintiffs’ attorneys, but they “eventually transferred ownership of the website” to one of the police officers.
The appellate court rightly viewed the district judge’s order to cease the website as a prior restraint, but sought to “balance the First Amendment rights of trial participants with our affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity,” citing the classic case of Sheppard v. Maxwell, 384 U.S. 333 (1966).
In this civil case, theFifth Circuit, however held that there was not sufficient evidence to "establish a nexus between the comments and the potential for prejudice to the jury venire through the entirety of the Website." The panel found that ordering a removal of the website was not sufficiently “narrowly tailored” to "excising maters with a sufficient potential for prejudice to warrant prior restraint."
But the panel stated it did not intend to "tie the hands of the district court" in addressing some of the content of the website. As to the specific content of certain recordings made by the Plaintiffs and placed on the website, the panel did discuss the "ethics" of this, noting both the that ABA position is that a lawyer who records the conversation of another does not necessarily violate the Model Rules of Professional Conduct AND that the recordings were not made by an attorney. Thus, the district judge's conclusion that the recordings had to be omitted from the website because they were "unethically obtained" was disapproved.
This rather brief - - - 12 page - - - opinion is well reasoned and would make an interesting class exercise for First Amendment, especially should the website "go live" again.
[image circa 1900 via]
The memo from the Office of Management and Budget in the Executive is here.
The White House website places the blame on Congress:
Neither the United States House of Representatives nor United States Senate website addresses the issue. The USCourts.gov website is also silent on the issue.
Sunday, September 29, 2013
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?
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.
Sunday, September 15, 2013
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.
Saturday, August 10, 2013
As we think about surveillance of electronic communication in the United States, it's worth (re)considering China's surveillance and censorship of electronic interactions amongst its own citizens. Jason Ng's new book, Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (and Why) promises to be an engaging exploration of the multi-layered relationships between the Chinese government and "netcitizens" and - - - importantly - - - corporations.
Here's Jason Ng in conversation with Sharon Hom, the Executive Director of Human Rights in China.
Of special interest is the screen shot showing the search for the phrase "constitutional democracy" (at about 1:36). The discussion by Ng and Hom of creative work-arounds and corporate "tolerance" is also worth a listen.
Thursday, January 31, 2013
Law students (and future law students) are watching this on The Colbert Report:
(h/t Chase Vine)
Wednesday, January 23, 2013
In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.
At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.
Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."
Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.
The court made clear that the problem was the statute's overbreadth with its caveat:
this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.
Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.
Thursday, January 3, 2013
The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act and California’s Proposition 8 cases," or "DOMPRP8."
The disclaimer is worth a look:
Disclaimer: We have provided a link to this site because it has information that may be of interest to our users. The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.
Wednesday, December 26, 2012
An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar. The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."
The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership. However, the disclosure of information using google maps is not new. Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage. (Recall Prop 8 is now before the United States Supreme Court.)
While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant. In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state. Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous. The names were thus disclosed.
State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records. The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.
[image screenshot via]
Thursday, December 20, 2012
The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."
Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:
As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.
In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.
Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation. In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts." He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists. Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence." Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.
Ford's arguments about the social science literature, however, are exceedingly well-taken. In sum, it is inconclusive at best. Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:
The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.
Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games. This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.
[image: Mortal Kombat via]
Monday, November 26, 2012
The energy surrounding the Court's anticipated grant of certiorari in at least one of the same-sex marriage cases - - - either one or more of the DOMA cases or the Prop 8 case (Perry v. Brown) - - - raises yet again the question of public access to Supreme Court oral arguments. While these cases are only the latest, they perhaps have special resonance given the Court's quelling of the planned broadcast of the Proposition 8 trial in federal court on dubious procedural grounds.
Prof Lisa McElroy's article, Cameras at the Supreme Court: A Rhetorical Analysis, forthcoming in BYU Law Review and available in draft on ssrn, argues persuasively for the broadcast of Supreme Court proceedings, based on the public's interest in accessing its government, including the judicial branch. The contribution of McElroy's excellent piece, however, is that it is not simply an argument, but an engagement with the "stories" the Court - - - and its Justices - - - tell about the Court and its lack of cameras. McElroy writes that there
can be no doubt that the Court has sincere concerns when it comes to granting public access to the Supreme Court, especially through broadcasting of official Court work. Among them are a desire for day-to- day privacy, a concern that allowing cameras or internet streaming will somehow damage the public’s perception of the Court, fears that broadcasting could somehow subject the Court or the Justices personally to mockery, and concerns that funny or less-than-devout comments made during oral argument might end up on the Internet or on programs like Jon Stewart. It is concerned that televising Supreme Court proceedings would change the very nature of those proceedings.
But, she continues,
the question we must ask is whether these concerns add up to a story with a factual basis, or whether they are a fairy tale that the Justices tell Americans–perhaps even themselves. Are the Court’s concerns borne out objectively, or are they instead a part of the story the institution has created (consciously or unconsciously) to justify its refusal to allow the American people virtual and physical access? Are inaccessibility, grandeur, and intimidation the only paths to legitimacy and respect?
Additionally, McElroy discusses whether the members of the Court are simply uncomfortable with technology, or jealous of their privacy (an increasingly untenable rationale), or worried about security, or not interested in change.
For any scholar or student considering issues of public access to Court proceedings, McElroy's article is a treasure as well as a treasure trove.
Thursday, November 15, 2012
Is there an analogy between the discovery and publication of list of videos that then-nominee for Justice on the Supreme Court Robert Bork checked out from a local DC store and the discovery and discussion of the gmail account of ex-CIA chief David Petraeus? Are both invasions of privacy that provoke public outrage and should lead to Congressional action to protect individual rights?
In describing the extent of the issue, he notes that "in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially."
Maas also quotes Robert Bork, not known as a friend of civil liberties, as resolutely ambivalent: "Is there too much intrusion into private lives? I can't answer that very well, because sometimes there is, sometimes there isn't."
The piece is worth a read for anyone considering how our constitutional notions of privacy shift and change.
[image: "Eavesdropping" by Vittorio Reggianini (1858–1938) via]
Wednesday, October 24, 2012
A "daily read" worth watching: Richard Posner (pictured) presented his lecture "How I Interpret Statutes and the Constitution" via video for Columbia Law Federalist Society's Madison Lecture Series on Judicial Engagement.
Posner speaks about originalism and living constitutionalism, proposing his own "middle-ground theory of interpretation that emphasizes common sense and analytic simplicity."