Jay Stanley

  • December 14, 2012

    by Joseph Jerome

    Whenever an American citizen interacts with her government, the government’s first concern is increasingly ascertaining whether that individual is a terrorist. The Wall Street Journal’s Julia Angwin reports that top intelligence and law enforcement officials met in March to establish new rules permitting the National Counterterrorism Center (NCTC) “to create a government dragnet, sweeping up millions of records about U.S. citizens -- even people suspected of no crime.”  Flight records, the names of Americans hosting foreign-exchange students, and even casino-employee lists can be stored for up to five years, analyzed for suspicious behavior, and shared with foreign governments all in the name of fighting terrorism.

    According to Angwin, the impetus of the program came in the wake of Umar Farouk Abdulmutallab’s failed Christmas Day 2009 bombing. After President Obama directed government agencies to send NCTC any and all leads on terrorist threats, the Department of Homeland Security provided NCTC with a vast database of information on the condition that any data of innocent U.S. persons be purged within 30 days. The tiny, unknown NCTC was unable to process the number of leads it received, so its solution was to seek unlimited access to any government information with no time limits imposed on the data’s analysis and study. 

    “All of this happened in secret,” the ACLU’s Chris Calabrese bemoans. “No public debate or comment and suddenly, every citizen can be put under the terrorism microscope.”

  • May 25, 2010
    Guest Post

    By Jay Stanley, senior policy analyst at the American Civil Liberties Union's Speech, Privacy and Technology Program. Stanley is author of a recent Issue Brief published by ACS entitled "The Crisis in Fourth Amendment Jurisprudence."
    The privacy rights of Americans have come under a sustained assault in the past decade. In that time we have seen not only 9/11 attacks, but also a few additional, comparatively minor terrorist attacks, two wars, a constant stream of revolutionary new technologies, greatly expanded powers for our security agencies, and a relentless political drumbeat pounding on the supposed need to give those agencies even more powers to peer into our lives without due process or meaningful oversight.

    Underlying all this, however, is a problem that pre-existed all of it: the fact that the Supreme Court's interpretation of the Fourth Amendment has gone badly off track. And that problem has intensified the erosion of our privacy caused by those other factors over the last 9 years.

    The general consensus of a wide variety of commentators is that there are two principal problems with the Supreme Court's Fourth Amendment jurisprudence:

    • The "third party doctrine," under which information shared with any third party loses all Fourth Amendment protection. Financial information held by your bank or medical information held by your doctor, for example has been exposed to a "third party," and under this doctrine is thus deemed to have been "given up" by you and therefore stripped of Fourth Amendment protection.
    • The emergence of a circular standard of "reasonable expectation of privacy," under which Fourth Amendment protection only extends to those situations where an individual has an "expectation" of privacy that society is prepared to recognize as reasonable. As a result of this approach, the Fourth Amendment as it is currently interpreted provides no protection against a wide array of intrusive searches.

    What's needed is a broad revival of the Fourth Amendment in American law.