Surveillance

  • 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.

  • April 1, 2015
    Guest Post

    by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

    This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

    Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.

  • November 18, 2014

    by Caroline Cox

    On the Melissa Harris-Perry Show, Janai Nelson and Amy Howe consider the new Affordable Care Act challenge and how Justice Scalia could be the deciding factor.

    Leslie Griffin writes at Hamilton & Griffin on Rights on how the recent opinion of Judge Cornelia Pillard of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life v. HHS explains why women’s equality is not a radical idea.

    Reuben Guttman writes in the International Business Times that the U.S. midterm elections were all about money but had very little substance.

    In The Washington Post, Andrea Peterson looks at the right of citizens to record the police.

    Geoffrey R. Stone argues in the Huffington Post that Senate should approve the USA Freedom Act in order to address the issues raised by the NSA’s surveillance program.

  • July 14, 2014

    by Nicholas Alexiou

    Katie McDonough discusses, at Salon, the first arrest under Tennessee’s SB 1391, which allows prosecutors to charge a woman with criminal assault if she used narcotics during her pregnancy and such consumption is believed to harm the fetus or newborn. The Tennessee law is the first of its kind in the nation and is widely condemned by medical organizations and addiction specialists for deterring pregnant women from seeking medical treatment.

    At Slate, Ian Thompson talks about the history of abusive surveillance in the U.S. against the LGBTQ community and how current bans on racial profiling federal law-enforcement agencies must be updated to prohibit profiling on the basis of religions, sexual orientation, gender identity and national origin.

    Paul Caron details the drop in June LSAT takers at the TaxProf Blog. The number of test takers in June fell 9.1% from the previous year, the lowest figure in 14 years.

    At Hamilton and Griffin on Rights, Leslie Griffin asks if there is a divide on the Supreme Court between the Catholic and Jewish justices.

  • July 9, 2014

    by Paul Guequierre

    Must it be that we have to make a choice between national security and constitutional principles? It’s a question that has been asked by people from across the political spectrum for generations. But after 9/11 senators and representatives from both political parties strongly backed the sweeping PATRIOT Act, which would help exponentially grow the federal government’s spying apparatus. Far removed from 9/11 and with much more information about the federal government’s eavesdropping operations, more people and groups are questioning the government's motives and mechanisms for spying on Americans.

    In the past 18 months, the extent of how far the government is going in monitoring both Americans and foreigners has taken center stage. When former National Security Agency contractor Edward Snowden disclosed secret documents detailing just how deep our government’s spying went, heated debates erupted over whether the government was justified in backing intrusive and massive spying programs. People of all political stripes continue to weigh in, some calling Snowden a hero, others a traitor. But regardless of how you feel about Snowden, you can’t help but be amazed, and perhaps troubled, by what he has exposed.

    Snowden’s latest disclosures show other countries are working with the NSA in spying on their own citizens. And just yesterday, we got a look at which Muslim-American leaders the FBI and NSA have been spying on.    

    According to Ryan Gallagher at The Intercept, huge volumes of private e-mails, phone calls and internet chats are being intercepted by the NSA with secret cooperation of more foreign governments than previously known. Gallagher says, the classified files leaked by Snowden, shed light on how the NSA’s surveillance of global communications has expanded under a clandestine program, known as RAMPART-A, which depends on the participation of a growing network of intelligence agencies. The latest Snowden documents show that a number of countries, described by the NSA as “third-party partners,” are playing an increasingly important role – by secretly allowing the NSA to install surveillance equipment on their fiber-optic cables.