Electronic privacy

  • May 8, 2015
    Guest Post

    by Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law. Follow her on Twitter @jendaskal. [Cross-posted at Just Security]

    Yesterday the Second Circuit declared the NSA’s bulk telephone metadata program unlawful.  Specifically, it ruled that it was unauthorized by section 215 of the USA PATRIOT Act (and thus did not reach the constitutional law questions).  At the same time, however, it declined to grant an injunction that would have halted the program and instead sent the case back to the district court to reconsider the issues. As the Second Circuit recognized, many of the issues many of which could may be mooted by congressional action (or inaction) between now and June 1, when this key statutory provision is set to expire.

    The program’s continuing operation, at least for the next few weeks, has prompted commentators such as Orin Kerr to describe the ruling as “merely symbolic.”  I disagree.  To be sure, the telephony metadata program has long been given outsized attention relative to its impact and importance. But the ruling has significant import nonetheless not just for what it means for the continued operation of the program, but for the range of interconnected areas that the opinion addresses.  Below are four key, and substantive, implications of the ruling.

    1.      Collection Matters

    The Second Circuit resoundingly rejected the government’s argument that there is no cognizable injury until data is actually analyzed and reviewed.  According to the government,  appellants had no standing because they could not establish that the metadata associated with their telephone calls (i.e. the numbers called, received, and duration of the call) had actually been analyzed, rather than merely collected; absent subsequent review, the suffered no injury in fact.  The government makes analogous arguments with respect to other forms of bulk collection: Don’t worry we have robust limitations as to who can access the data and why.

    The Second Circuit was not persuaded, and rightly so.  As the Second Circuit concluded, collection is properly analyzed as a government seizure. If the collection is unlawful, then “appellants have suffered a concrete and particularized injury,” even without a subsequent review by human actors.  In other words, collection matters, even if the subsequent use restrictions are robust and strictly followed. That’s because we have a separate privacy interest not just in how the government uses our data, but in the government’s collection of our data in the first place.

  • February 18, 2015

    by Jeremy Leaming

    U.S. Senators are again pushing a bill aimed at providing more protection of consumer data stored by American tech companies overseas.

    Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah) and Dean Heller (R-Nev.) recently reintroduced the Law Enforcement Access to Data Stored Abroad Act (LEADS Act), which languished in the last Congress. The LEADS Act would change the Electronic Communications Privacy Act (ECPA) and, in part, would prohibit federal officials from using a warrant to obtain information stored abroad, unless the information sought belongs to an American.

    In a press statement, Sen. Coons said, “Law enforcement agencies wishing to access Americans’ data in the cloud ought to get a warrant, and just like warrants for physical evidence, warrants for content under ECPA shouldn’t authorize seizure of communications that are located in a foreign country. The government’s position that ECPA warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law. This is not only hurts our businesses’ competitiveness and costs American jobs, but it also invites reciprocal treatment by our international trading partners.”

    The senators’ statement on the LEADS Act claims it would “clarify ECPA by stating that the U.S. government cannot compel disclosure of data from U.S. providers stored abroad if accessing that data would violate the laws of the country where it is stored or if the data is not associated with a U.S. person – that is, a citizen or lawful permanent resident of the United States, or a company incorporated in the United States.”

    The U.S. Court of Appeals for the Second Circuit is hearing an appeal of a federal court refusal to set aside a government issued warrant to obtain email account information stored by Microsoft in Ireland.

    See here for more information about the LEADS Act.

  • January 20, 2015
    Guest Post

    by Cameron F. Kerry. Kerry is the Sara R. & Andrew H. Tisch Distinguished Visiting Fellow at the Brookings Institution and a Visiting Scholar at the MIT Media Lab. He is the former General Counsel and Acting Secretary of the U.S. Department of Commerce.

    President Obama went to the FTC this past week to address ways to protect privacy and identity in what he called “a dizzying age” of new technologies. 

    One of the many new technologies changing the ways people interact with information is cloud computing. Whether it's Jennifer Lawrence saving intimate photos to Apple's iCloud, startups scaling up with Amazon Web services, or businesses and consumers moving their documents to Microsoft 365 or Google Docs, cloud computing is becoming a familiar part of our digital daily lives.

    Cloud services offer benefits of large-scale computing, which include efficiency, scalability, security, and computing power, as well as ubiquitous access to data from an increasing variety of devices. But turning over data wholesale to someone else also comes with questions about privacy, confidentiality, security, and control. 

    As evidenced by Microsoft’s challenge to a U.S. government warrant for emails stored in a data center in Ireland, these questions also present challenges to traditional notions of sovereignty and territorial jurisdiction because global networks and cloud systems transcend national borders.

  • September 18, 2014

    by Jeremy Leaming

    * On Feb. 12, 2015 U.S. Senators reintroduced the LEADS Act

    Intending to provide privacy protections to consumers’ data stored on tech companies’ servers overseas or in cloud computing services, a bipartisan group of senators late today introduced legislation to amend the Electronic Communications Privacy Act (EPCA).

    Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah) and Dean Heller (R-Nev.) announced introduction of the Law Enforcement Access to Data Stored Abroad Act or the LEADS Act. A provision of the bill states that law enforcement offices must “obtain a warrant under the Electronic Communications Privacy Act (EPCA) to obtain the content of subscriber communications from an electronic communications or cloud computing service.”

    The bill comes as Microsoft is fighting in court a warrant from federal prosecutors seeking access to data stored oversees. Microsoft is arguing that the federal government cannot compel disclosure of data it stores in Ireland. Microsoft Bradford L. Smith told The New York Times earlier this year, “What is at stake is the privacy protection of individuals’ email and the ability of American tech companies to sustain trust around the world.” The Times noted that Apple, AT&T and Verizon have all filed briefs supporting Microsoft.

  • August 5, 2014

    by Caroline Cox

    Adam Liptak of The New York Times discusses Justice Ruth Bader Ginsburg’s recent comments on the Supreme Court’s different treatment of cases involving gay people and women. Justice Ginsburg comments suggest that the five-justice conservative majority does “not understand the challenges women face in achieving authentic equality.”

    In Slate, Emily Bazelon explains the recent decisions by the U.S. Court of Appeals for the Fifth Circuit and the U.S. District Court for the Middle District of Alabama that blocked major restrictions on abortion clinics. Despite these pro-choice victories, the legal fight against allegedly burdensome regulations on abortion clinics remains an uphill battle as a Texas law goes before the Fifth Circuit.

    Robert Barnes of The Washington Post reports that a Florida judge has found two of the state’s congressional districts unconstitutional. The decision, one of several challenging gerrymandering throughout the country, sets the stage for a possible Supreme Court case in the fall. 

    Shawn DuBravac, the chief economist of the Consumer Electronics Association, writes for the Harvard Business Review that the Supreme Court’s view on the Fourth Amendment is increasingly taking into account changing technology and the importance digital privacy.

    The New York Times’ James Barron provides the obituary for James S. Brady, White House press secretary for President Ronald Reagan and a major champion of gun control legislation.

    The Alliance for Justice published a comprehensive report detailing each federal case on the legality of a same-sex marriage ban.