Privacy rights

  • March 20, 2013

    by Jeremy Leaming

    While the Obama administration has justifiably been knocked for its secretive and deadly use of Reaper and Predator drones to kill suspected terrorists overseas, the private and public use of drones here at home is in need of some serious discussion say groups and individuals concerned about eroding privacy rights.

    During a Senate Judiciary Committee hearing today a law professor and Amie Stepanovich of the Electronic Privacy Information Center (epic.org) urged lawmakers to revamp the nation’s privacy laws to ensure that public and private use of drones do not shred what privacy rights we have left.

    Ryan Calo, assistant professor of law at the University of Washington School of Law, told the committee that citizens have good reason to be concerned about the increasing use of drones for an array of purposes. During his testimony, Calo reiterated the need for the nation to update laws to protect privacy – technology is fast outpacing laws protecting privacy.

    “Drones have a lot of people worried about privacy – and for good reason,” Calo told the Senate committee. “Drones drive down the cost of aerial surveillance to worrisome levels. Unlike fixed cameras, drones need not rely on public infrastructure or private partnerships. And they can be equipped not only with video cameras and microphones, but also the capability to sense heat patterns, chemical signatures, or the presence of a concealed firearm.

    “American privacy law,” he continued, “meanwhile, places few limits on aerial surveillance. We enjoy next to no reasonable expectation of privacy in public, or from a public vantage like the nation’s airways. The Supreme Court has made it clear through a series of decisions in the nineteen-eighties that there is no search for Fourth Amendment purposes if an airplane or helicopter permits officers to peer into your backyard. I see no reason why these precedents would not extend readily to drones.” See Calo’s written testimony here.    

    The drones discussed at today’s hearing are not like the types employed overseas in ongoing counterterrorism operations.  (A subcommittee led by Sen. Richard Durbin (D-Ill.) will explore the drone war and its intersection with constitutional rights in April.) The drones are much, much smaller and have been used for police surveillance and by public safety agencies to assess damages from storms, study hurricanes, tornados and flooding for example. Many of those drones weigh mere pounds and are operated in a limited fashion. Michael Toscano, president & CEO of the Association for Unmanned Vehicle Systems International (AUVSI), told the committee that the industry does not support “weaponization” of civil drones. (He also informed the lawmakers that the industry does not refer to the technology as drones, they may be pilotless, but they are operated by humans from nearby control centers. (Sen. Leahy said he and others on the committee would refer to drones as drones regardless of what the industry dubs them.)

     

  • March 8, 2013

    by Jeremy Leaming

    Advocates of privacy rights, especially reproductive rights, have had one challenge after another mostly from state lawmakers bent on destroying those rights.  

    As reported earlier this week, religious groups were successful in lobbying the Arkansas legislature to adopt what The New York Times called the “country’s most restrictive ban on abortion – at 12 weeks” of pregnancy.

    The landmark U.S. Supreme Court case, Roe v. Wade, found that the Constitution provides women “the right of personal privacy,” which “includes the abortion decision ….” Like many rights protected in the Constitution it’s not an unlimited one. And the Roe Court found that states have a compelling interest to regulate abortion at the point of viability, usually around 24 weeks, as The Times notes.

    The law’s sponsor, according to The Times, “compared the more than 50 million abortions in the United States since Roe” to the “Holocaust ….”

    That overwrought language is unfortunately typical of too many state lawmakers from coast to coast who for over the past several years have strived to create more laws to make it much more difficult for women to obtain abortions. As former U.S. Solicitor General Walter Dellinger has noted, it’s annoyingly ironic that conservative lawmakers who blasted the Affordable Care Act as attempting to strip liberty from Americans are the ones pushing laws depriving women of their liberties. Women have the ability to make health care decisions for themselves, but right-wing lawmakers are more concerned about embryos, which do not have constitutional rights.

    Because the Arkansas law so blatantly violates Roe, it is likely to be quickly challenged, as it should be.

    Ilyse Hogue, president of NARAL Pro-Choice American, blasted the law, saying “This is another example of how anti-choice politicians are obsessed with rolling back reproductive rights guaranteed by the Supreme Court’s Roe v. Wade decision more than 40 years ago. This law robs women of control over their own lives and puts that control in the hands of politicians in Little Rock. This intrusive, extreme agenda is out of touch with our nation’s values and priorities – and we stand firmly in opposition.”

    Too many state lawmakers have been obsessed with restricting the rights of women. Their priorities are regressive and obnoxious in the face of budget difficulties and people who need jobs or government services to help them become trained for new jobs. Instead of harassing women, state lawmakers should focus on issues that will bolster, not harm their communities.

  • January 15, 2013

    by Jeremy Leaming

    Since issuing its landmark Roe v. Wade opinion expanding liberty 40 years ago this month, the debate over abortion has only intensified. Indeed, over the last few years state lawmakers have pushed for even more laws aimed at making it incredibly onerous if not impossible for many women to access the medical procedure.

    So did the high court’s Roe ruling spark a backlash and if so, should supporters of marriage equality gird for a similar reaction if the Supreme Court rules in favor of marriage equality? In a post for Balkinization’s “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries” conference, ACS Board members Linda Greenhouse and Reva Siegel tackle the question and conclude, in part, that a backlash against reproductive rights was gathering before the high court issued its Roe opinion in January 1973.

    Greenhouse, former Supreme Court correspondent for The New York Times, and Siegel, a distinguished professor of law at Yale Law School, write that the message emanating from the “premise of the Roe backlash narrative,” is that “minority claimants should stay away from the courts.”

    But that message, Greenhouse and Siegel write, is not correct in all circumstances:

    Of course, judicial decisions, like Roe and Brown, provoke conflict. The question is whether judicial decisions are likely to provoke more virulent forms of political reaction than legislation that vindicates rights. There was, is, and will be conflict over abortion, same-sex marriage, and indeed, the very meaning of equality. When minorities seek to unsettle the status quo and vindicate rights, whether in legislatures, at the polls, or in the courts, there is likely to be conflict and, if the claimants prevail, possibly backlash too. To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is no. The abortion conflict escalated before the Supreme Court ruled.

    Greenhouse, Seigel and an array of other experts on liberty and equality will participate in panel discussions at the Jan. 18 – 19 conference at UCLA School of Law, which is part of the Constitution in 2020 project. (A schedule and listing of panelists is included at the end of this blog post.) See here for registration information.

    Several of the Conference’s panelists are providing guest posts for Balkinization on topics likely to be discussed in detail or touched upon at the gathering. In another of those posts, the ACLU’s Louise Melling examines the legal challenges to the Affordable Care Act’s requirement that employers’ health care providers offer access to contraceptives. As Melling notes, there are a slew of lawsuits against the contraception policy, and many of them argue that employers’ religious beliefs should trump the ACA’s requirements on contraception.

  • January 9, 2013

    by Jeremy Leaming

    This year marks major anniversaries of several landmark Supreme Court opinions, including two that advanced liberty and equality. In January 1973, the high court in its Roe v. Wade opinion trumpeted liberty by striking a Texas law banning abortion. Equality and liberty were also advanced in June 2003 when a majority of the justices in Lawrence v. Texas invalidated a law targeting sex between consenting adults of the same gender.

    On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries.” (See below for more information about the gathering, including a tentative conference schedule.)

    In striking down a state law banning abortion, Justice Harry Blackmun declared that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

    The Roe court, however, did not find this right to be absolute, and subsequently we have seen an erosion of this liberty in a steady and disconcerting fashion by courts and lawmakers over the years. Indeed a string of states over the past few years has ratcheted up efforts to make it vastly more difficult for many women, especially the young and poor, to have abortions. State lawmakers have also pushed laws requiring physicians to lecture women on the alleged dangers of abortions and/or undergo ultrasounds all in an effort to slow the process or dissuade women from abortions.

    In 2003’s Lawrence, the majority of the court also advanced liberty by knocking down a Texas law that criminalized sex between people of the same gender. And like Roe, the majority found that liberty is broad enough to prevent the government from intruding upon intimate relations of lesbians and gay men. Indeed, Justice Anthony Kennedy writing for the Lawrence majority, citied the high court’s 1992 Planned Parenthood v. Casey opinion upholding Roe. In Casey, the Court wrote, “These matters, involving the most intimate personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”

    Kennedy’s Lawrence opinion also advanced equality, saying the challengers of the Texas law persuasively argued that their equal protection rights were subverted by a law that criminalized an intimate part of their relationships.

  • January 7, 2013

    by E. Sebastian Arduengo

    In the fall, the House of Representatives voted to pass the FISA Amendments Act 2012 reauthorization. The bill, which renews provisions of the Foreign Intelligence Surveillance Act, allows the government to eavesdrop on Americans’ electronic communications, including phone calls and emails without having to show probable cause. Despite the fact that the bill flew in the face of Fourth Amendment protection, the bill cleared the Republican-controlled House by a large margin, passing 301-118. Members like Trey Gowdy (R- S.C.) rationalized trampling on constitutional by declaring “Intelligence is the lifeblood of our ability to defend ourselves … Are we to believe that the Fourth Amendment applies to the entire world?” For much of the last two months, the matching bill in the Senate was held by Sen. Ron Wyden (D-Ore.), who insisted that the Obama administration release information about how many Americans’ communications have been released under the law. Unfortunately, on Dec. 28, the Senate voted to pass the FISA Amendments Act 73-23, after voting down Senator Wyden’s amendment forcing disclosure.

    Senator Wyden’s amendment was of particular import because FISA Amendments Act gives the government nearly limitless spying power. For example, a request related to the “Haqqani network” allows the government to tap any communications it believes will yield information about the group that is fighting American forces in Afghanistan. The request could be based on as little as the vague belief that a phone is being used to communicate with Afghan insurgents. This casts a net so broad, that when a challenge to the FISA Amendments Act went before the Supreme Court in October, ACLU deputy director Jameel Jaffer described the law to Justice Ginsburg as "dragnet surveillance."

    Perhaps a better term would be “siphon surveillance,” as documents provided by former AT&T and NSA employees show that the NSA has created dark rooms in AT&T facilities that copy all internet traffic flowing through the facilities and transmit that information to government servers. So much information is flowing to the NSA, in fact, that they are hard at work building a $2 billion data center in the Utah desert to store it all. To put this amount of data this facility will be able to store in perspective – When it is running at full capacity, it will be able to store “about 500 quintillion (500,000,000,000,000,000,000) pages of text.” Unsurprisingly, with the data spigot on, there have been numerous documented reports of the NSA collecting purely domestic communications of ordinary Americans, and collection practices have gotten so egregious that the Foreign Intelligence Surveillance Court, which usually rubber-stamps wiretap requests from the government, ruled that the government’s actions under FISA had violated the Fourth Amendment on at least one occasion.