Privacy rights

  • July 1, 2013

    by Jeremy Leaming

    Since disclosure of classified documents revealing the scope of United States’ surveillance programs there has been a collective shrug of the shoulders among mainstream or elite media. As noted here, the verdict from many in the mainstream media is that the surveillance programs revealed by Edward Snowden are a fair or necessary trade-off – we must give up a bit of privacy to ensure that the nation is safe from terrorists.

    Indeed, much of the focus of broadcasters, such as NBC’s David Gregory, has centered on where Snowden is and whether The Guardian journalist-columnist Glenn Greenwald should be viewed as aiding and abetting Snowden. Recently during a “Meet the Press” segment, Gregory asked Greenwald why he shouldn’t be “charged with a crime.” Greenwald, who along with other Guardian staffers, has reported on the material disclosed by Snowden, was hardly rattled by the broadcaster’s preening. Greenwald later tweeted, “Who needs the government to try to criminalize journalism when you have David Gregory to do it?” (For an entertaining takedown of Gregory, see Frank Rich’s response to a question from New York magazine about Greenwald’s role in reporting on the two massive surveillance programs that collect and store telephone communications and Internet communications of Americans. For example, Rich asked, “Is David Gregory a journalist? As a thought experiment, name one piece of news he has broken, one beat he’s covered with distinction, and any memorable interviews he’s conducted that were not with John McCain, Lindsey Graham, Dick Durbin, or Chuck Schumer.”)

    But outside the elite U.S. media, many others are not ready to let this one go, and not just because more information about the nation’s spying apparatus keeps coming. The Guardian recently published NSA documents that show widespread spying of the “European Union mission in New York and its embassy in Washington.” In fact the NSA documents reveal that 38 embassies and missions are being spied on by America’s ever-growing and unwieldy intelligence community. The disclosure is not going over well with some the country’s allies. Germany’s Chancellor Angela Merkel, for instance, said, “We are no longer in the cold war. If it is confirmed that diplomatic representatives of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”

    Capturing and storing massive amounts of information on Americans’ communications should also be unacceptable or least spark sharper, ongoing debate, regardless of how we learned about the massive surveillance schemes. Without those disclosures we’d likely still be in the dark about those programs. In March, Sen. Ron Wyden (D-Ore.) asked Director of National Intelligence James Clapper during a hearing whether the NSA was collecting “any data at all on millions or hundreds of millions of Americans?” As Salon’s David Sirota notes, Clapper responded, “no, sir.”  

    Recently, I sat down with Georgetown Law Professor David D. Cole, a constitutional law and national security expert. (See his wrap-up of the Supreme Court’s latest term for The Washington Post.) I asked him to respond to pundits who argue that the surveillance programs are not terribly troubling and whether he thought the Foreign Intelligence Surveillance Court is a strong enough check on the intelligence community’s voracious appetite for more information about Americans.

    Cole (pictured) said he found the disclosures of the surveillance programs, “stunning and I think raise really serious questions both about our governance and about our privacy. They’re stunning; because I don’t think before The Guardian broke the story that anybody thought that the Patriot Act authorized the government to pick up phone data every time any American picks up the phone to call anywhere.”

    Some pundits express shock that civil rights groups or civil liberties advocates should be stunned by the NSA programs and many argue that they are harmless infringements on privacy that are outweighed by the government’s interest in protecting national security.

    Cole provides a counter.

    “I think there is a great deal to be concerned about,” he said. “We’ve seen in the past that these kinds of tools while adopted in the name of fighting national security inevitably get used more broadly, and abused to target people who the administration finds to be inconvenient or a dissenter or an enemy as President Nixon labeled them. So Cointelpro [Counterintelligence Program], the FBI’s program was initially an anti-Communist program and ultimately involved spying on people in the civil rights movement, the anti-war movement, the women’s movements, and the environmental movements. We don’t want our government to be engaged in that kind of practice and the best way to ensure that it isn’t is to ensure that it has strict limits on its surveillance powers.”

    Regarding the Foreign Intelligence Surveillance Court, which hears NSA surveillance requests in secret, Cole said it was a check, but that we should know more about it.

    “I think the fact the court exists [FISA Court] is a check in-and-of-itself, even if it ultimately, in almost all instances says yes,” Cole said. “However, I think it’s far too secret. Certainty, ongoing operations; there’s a need for secrecy. But the interpretations that the Court has given to the statutes that we think are constraining the government – we ought to know what those interpretations are.”

    While mainstream media outlets concentrate on the whereabouts of Snowden, bloggers, the ACLU and some members of Congress, such as Wyden, are calling for the government to provide more information about the NSA and its spying programs. At some point a few in the mainstream media might also catch on to what is important in this matter.

    See Cole’s entire talk below or by visiting this link.  

  • June 7, 2013

    by Jeremy Leaming

    Are we over reacting when tossing around Orwellian to describe the federal government’s massive surveillance programs or denouncing President Obama as losing all credibility on this issue, as The New York Times Editorial Board has done?

    We noted one of the massive spying programs yesterday regarding a FISA Court order granting the National Security Agency the power to collect telephone information from Verizon. The Guardian released the FISA Court order in its coverage. Later The Guardian and The Washington Post reported on a program called PRISM where the NSA and FBI are “tapping directly into central servers of nine leading Internet companies [like Google, Facebook and Apple], extracting audio and video chats, photographs, e-mails, documents and connection logs ….” The order to collect telephone data has apparently been made much easier to obtain because of the administration’s sweeping interpretation of a provision in the Patriot Act.

    President Obama today dismissed criticism of the surveillance programs as hype. At a press conference this morning intended to focus on implementation of the Affordable Care Act he was confronted with questions about the two programs.

    Obama first acknowledged he has a duty to protect the constitutional right to privacy and civil liberties, but quickly shifted into defending the massive surveillance programs.

    “The programs discussed over the last couple of days in the press are secret in the sense that they are classified but they are not secret in the sense that when it comes to phone calls every member of Congress has been briefed on this program,” Obama said. “With respect to all these programs the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006. So I think it’s important to understand that your duly elected representatives have been consistently informed about exactly what we’re doing.”

    He claimed that the “intelligence community” is not looking at content of telephone calls, but instead sifting “so-called metadata” for leads of people plotting to engage in terrorism. He then knocked coverage of the two surveillance programs as “hype.” He added that the program of collecting telephone data is overseen by Congress and the FISA Court, which was created by the Foreign Intelligence Surveillance Act of 1978 (FISA).

    With respect to the Internet surveillance program, he said PRISM does not apply to U.S. citizens and that Congress is fully aware of the program and that the FISA Court “has to authorize it.” They are both programs, the president said, that have been approved by Congress and the FISA Court is overseeing them.

    The Dish’s Andrew Sullivan writes, “I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy.”  

    Geoffrey R. Stone, a constitutional expert and distinguished law professor at the University of Chicago, in a piece for The Huffington Post says that “based on the facts that have been made public,” the government actions “are neither unconstitutional nor otherwise unlawful under existing law.” Stone, however, adds that he would “personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion ….” 

    Both Sullivan and Stone are touching upon the trade-offs that Obama also mentioned during his press conference today. In some instances national security will trump the interests of protecting privacy.

    Others, like The New York Times Editorial Board believe the Obama administration has recklessly expanded the surveillance programs started under his predecessor and given more power to the nation’s unwieldy intelligence apparatus. “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.”

  • June 6, 2013

    by Jeremy Leaming

    The Obama administration, obsessed with leaks of secret government actions, is likely seething over reporting by The Guardian’s Glenn Greenwald, Ewen MacAskill and Spencer Ackerman on the secretive order granting the federal government sweeping power to collect “telephone records of millions of US customers of Verizon,” regardless of any suspected connection to terrorist groups or activities.

    The report reveals an order from the secretive Foreign Intelligence Surveillance Court -- created by the Foreign Intellegince Surveillance Act of 1978 (FISA) -- granting power to the even more secretive National Security Agency to collect phone data over a three-month period. As The Guardian reporters and others note we have no idea if the FISA Court order is one in a series of orders granting the NSA ability to collect the information.

    Salon’s Alex Pareene notes that the nation’s intelligence agencies have continued to amass power for decades. Both parties and presidents have done nothing to rein in the NSA. “While the fact the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primary issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret. Now we know more. But the recent history of the U.S. and domestic surveillance suggests knowing more won’t lead to doing anything about it.”

    The ACLU and other civil liberty groups and a few Senate Democrats have tried to raise concern over the unwieldy and largely unaccountable intelligence apparatus. In a June 5 press statement, the ACLU’s Deputy Legal Director Jameel Jaffer said, “From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents. It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of the unaccountable intelligence agencies.”

    In a piece for Cato at Liberty, Jim Harper looks at the indifference Americans have toward the FISA Court and the power of the nation’s intelligence apparatus. He notes that last summer and then in late December Congress reauthorized, expanded FISA powers for another five years, “continuing the government’s authority to collect data like this under secret court orders.” One of the staunchest supporters of expanding FISA powers was Sen. Dianne Feinstein (D-Calif.).

  • April 25, 2013

    by Jeremy Leaming

    Once again lawmakers in Congress have introduced legislation intended to advance equality for LGBT people, this time with a few more Republicans on board and in an atmosphere of heightened public support.

    The Employment Non-Discrimination Act (ENDA) would prohibit employers from discriminating against people based on their sexual orientation or gender identity. As noted earlier this week, other variations of ENDA have languished in past congressional sessions. But the effort – to outlaw employment discrimination of LGBT people – is integral to advancing equality. The U.S. Supreme Court is considering cases involving marriage equality and nine states and the District of Columbia recognize same-sex marriages. Rhode Island and Delaware state lawmakers are considering legislation to allow same-sex couples to wed. (Rhode Island’s Senate has approved a marriage equality bill.)

    So while there has been positive movement on marriage equality -- though a setback could be forthcoming depending on the how the Roberts Court handles the cases before it – efforts to bar employment discrimination against LGBT persons have seen more mixed results. As the ACLU notes more than 30 states include laws that fail to provide LGBT people solid protection from employment discrimination.

    But Sen. Jeff Merkley (D-Ore.) in a press statement announcing the introduction of ENDA sounded an upbeat note, saying that “bipartisan coalitions” in both chambers are supporting the measure. Merkley’s statement concludes, “In a sign of the growing momentum to end discrimination against LGBT Americans, the Senate sponsors expect the Health, Education, Labor & Pensions Committee” to take action on the legislation in this Congress.

    The ACLU, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center issued a statement today concluding, in part, that in a “country that values fairness and equal treatment under the law, we believe the current situation is unacceptable.” That situation centers on the fact that there remain far too many states without protections against employment discrimination of LGBT people.

  • April 5, 2013

    by Jeremy Leaming

    In a bleak era of state and federal lawmakers striving to dictate to women on health care concerns, primarily centering on birth control, a federal court today offered a respite. It ruled that the federal government must stop making it difficult for young women to get access to emergency contraception.

    U.S. District Court Judge Edward Korman found that the FDA’s refusal to remove restrictions on the availability of Plan B, a medication to help prevent pregnancy, was “arbitrary, capricious, and unreasonable.”

    The Atlantic’s James Hamblin notes that “leaders in the FDA have advocated” the availability of the drug for some time now. “In 2011, FDA commissioner Dr. Margaret Hamburg concluded that it was safe to sell Plan B One-Step over the counter. The American Medical Association, Americans Congress of Obstetricians and Gynecologists, and American Academy of Pediatrics have since endorsed unrestricted access to emergency contraception.”

    But, in a move reminiscent of the George W. Bush administration’s disdain for science, Health and Human Services Secretary Kathleen Sebelius last year ignored the FDA’s recommendation and held that young women could not get access to Plan B without a prescription.

    Judge Korman blasted Sebelius’ decision as revealing “a strong showing of bad faith and improper political influence,” TPM’s Sahil Kapur reports.

    President of NARAL Pro-Choice American Ilyse Hogue lauded Korman’s decision, saying it is an “affirmation that policy can and should be driven by facts and by public health. For years, women have had to jump through hoops because officials in Washington played politics with our health. Today’s ruling brings us one step closer to putting women in control of our destinies.”

    It’s also a court ruling that will undoubtedly be attacked by the rabid and righteous groups bent on controlling certain health care decisions that should be left solely to women.