Surveillance

  • December 16, 2013

    by Nicholas Alexiou

    In a potentially significant ruling, Judge Richard Leon of the U.S. District Court for the District of Columbia has found that the National Security Agency’s (NSA) bulk collection of phone metadata program likely violates the Fourth Amendment.

    In Klayman et al. v. Obama et al., Plaintiffs Larry Klayman (founder of the conservative Judicial Watch and Freedom Watch) and Charles Strange (father of a Michael Strange, a slain Cryptologist Technician with Navy SEAL Team VI, who has been a vocal opponent of President Obama) allege, in part, that the NSA collection program violates the First, Fourth and Fifth Amendment of the U.S. Constitution. They sought a preliminary injunction that would prohibit the NSA from collecting the plaintiff’s call records under the existing collection program, require the destruction of all records already collected, and prohibit the “querying” of any metadata already collected.

    Judge Leon has found that plaintiffs have standing to challenge the NSA’s program, regardless of whether the program was in accordance with the rulings of the Foreign Intelligence Surveillance Court (FISC), and that the plaintiffs have shown both “a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.” Therefore, Judge Leon granted, in part, plaintiff’s motion for a preliminary injunction; but recognizing the “significant national security interests at stake . . . and the novelty of the constitution issues” the injunction is stayed pending an appeal. Finding sufficient evidence to grant the preliminary injunction on Fourth Amendment grounds, Judge Leon did not address either the First or Fifth Amendment arguments.

    In analyzing the Fourth Amendment question, Judge Leon notes that the scope and technological sophistication of the NSA program far surpasses any other governmental surveillance program previously examined by the judiciary. In 1979, the Supreme Court ruled in Smith v. United States that an individual had no legitimate expectation of privacy in the numbers they dialed on their phone, for they were voluntarily submitting them to the telephone company. Therefore, a pen register installed by the police without a warrant was not barred by the Fourth Amendment as it did not constitute a “search.”

  • November 15, 2013
    Guest Post
    by Hillary B. Farber, Associate Professor of Law, University of Massachusetts School of Law, and author of a forthcoming article on the domestic deployment of drones in Vol.64 of the Syracuse Law Review
     
    Editor’s Note: On Tuesday, November 19, ACS is hosting a panel discussion on constitutional protections of privacy in a time of rapid technological innovation and increasing surveillance, featuring Dahlia Lithwick of Slate, Chris Calabrese of the ACLU, Stephen Vladeck of American University Washington College of Law and others.  We hope that you will join us for this important and timely conversation.  If you are interested in attending, please RSVP here.

    By the end of this decade it is estimated that 30,000 drones will occupy national airspace.  In 2012, Congress passed the Federal Aviation Administration Modernization and Reform Act, which ordered the Federal Aviation Administration (FAA) to promulgate regulations for the integration of drones into the national airspace. Law enforcement agencies around the country have purchased drones and are testing the new technology. As of May 2013, four Department of Justice (DOJ) divisions had acquired drones: the FBI; Bureau of Alcohol, Tobacco and Firearms (ATF); Drug Enforcement Agency (DEA); and, the U.S. Marshals Service.  On June 19, FBI Director Robert Mueller told Congress that the FBI has deployed drones for surveillance on domestic soil and is developing guidelines for their future law enforcement use. 

    As compared with manned airplanes and helicopters, unmanned aerial surveillance bears unique risks to society's expectation of privacy. Drones, properly called unmanned aerial vehicles (UAVs), are practically invisible at altitudes where a manned aircraft could be seen with the naked eye. Smaller UAVs operate almost silently, making them significantly harder to detect. Moreover, UAVs can be equipped with sensory enhancing technologies such as thermal imaging devices, facial recognition software, Wi-Fi sniffers, GPS systems, license plate readers and cameras that can provide high resolution images from significant altitudes.  This type of aerial surveillance presents the potential for intrusion of privacy far more pervasive than the flyover of a plane or helicopter.  Drone surveillance has the potential to enable users to gather unprecedented amounts of information about people and retain it well into the future.
  • November 5, 2013
    Guest Post
     
    This post originally appeared at BORDC's People's Blog for the Constitution. It is the second installment in a two-part series; the first installment can be read here.
     
    As the NSA spying scandal has progressed, congressional Democrats have grown co-opted by an Obama administration committed to defending, entrenching, and perpetuating the Bush administration’s legacy—despite the president’s campaign promises in 2008 to reverse it. This co-optation spells grave threats not only to partisan Democrats, but also to principled progressives attached to an ideology inadvertently weakened by partisan Democrats aligned with the president.
     
    Rallying around President Obama…to shoot themselves in the feet
     
    In August 2013, during the debate on the House defense appropriations bill, only 7 votes protected the NSA from debilitating budget cuts that would have ended its domestic bulk collection activities. Seven members of Congress could have changed the outcome of the vote, reflecting a razor thin (under 2%) margin of victory for the surveillance state.
     
    That margin of victory could be explained in many ways. One explanation may surprise progressives: Democrats from the Bay Area and Chicago, representing safe blue seats, who were outspoken about surveillance abuses at one point, comprised the NSA’s entire margin of victory. They chose to resign their principles, oaths of office, and constituents’ concerns in order to support their partisan patron, the president. They’re carrying the Bush administration’s water because it’s now President Obama holding the glass.
     
    After raising a righteous ruckus about government spying under the Bush administration, congressional Democrats saved the NSA from a transformative challenge initiated from within the GOP. Their constituents have already indicated—loudly—that they are not happy.
  • October 29, 2013
     
    For American communities of color, the latest revelations about U.S. government surveillance, at home and abroad, has been met without much surprise and with a long memory of the injustice suffered by minority groups since our nation’s inception.
     
    At a recent D.C. event sponsored by Free Press, the Center for Media Justice and Voices for Internet Freedom, activists and community leaders assessed the increasing dangers and called listeners to action.
     
    “We are a settler-colonial nation,” explained Fahd Ahmed. “Race and social control are central to the project.” As the legal and policy director for Desis Rising Up and Moving, an organization dedicated to organizing and amplifying the voice of immigrant workers, Ahmed has seen first-hand how the government isolates and targets vulnerable populations. In particular, he noted the targeting of Muslims by the NYPD under the supposition of anti-terrorism efforts, but was careful to emphasize the broader scope of the present danger. “These practices won’t be limited to one community,” he said. “After all, surveillance has a purpose – to exert the power of the state and control the potential for dissent.”
     
    Other panelists reached similar conclusions. Surveillance is “not anything new” for people of color, observed Adwoa Masozi, a communications specialist and media activist. Recalling the COINTELPRO programs of the 1960s and 1970s, she named the major difference between then and now: “The government is just more open about it.”
     
    Alfredo Lopez, the founder of May First/People Link, called the recent news an indication that “the ruling class is figuring out how to rule a society that is rapidly changing beneath it.”
     
    Seema Sadanandan of the American Civil Liberties Union’s National Capital Area Affiliate called the last few months a “tough time for white people,” whose relatively unchallenged faith in the Bill of Rights has been profoundly shaken.
     
    Still, the next steps were harder to assess. For example, what role do lawyers and the law have in movements against this kind of surveillance? And how should activists interact, if at all, with the Internet and popular platforms like Facebook and Twitter?
  • July 30, 2013
    Guest Post

    by Michael German, senior policy counsel at the ACLU’s Washington Legislative Office and a former FBI agent.

    My American Civil Liberties Union colleagues and I have been extremely busy since the Guardian and the Washington Post published leaked classified documents exposing the scope of the government’s secret interpretations of the Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act, which allow the FBI and NSA to spy on hundreds of millions of innocent Americans. We haven’t written much about the alleged leaker of this information, Edward Snowden, however, mainly because we took his advice to focus on what the NSA and FBI were doing, rather than on what he did or didn’t do. (See exceptions here and here).

    But I did want to clear up a question that seems to keep coming up: whether Snowden is a whistleblower. It is actually not a hard question to answer. The Whistleblower Protection Act protects “any disclosure” that a covered employee reasonably believes evidences “any violation of any law, rule, or regulation,” or “gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety.”

    In the two months since Snowden’s alleged disclosures, no fewer than five lawsuits have been filed challenging the legality of the surveillance programs he exposed. The author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), called the scope of data collection revealed in one of the leaked Foreign Intelligence Surveillance Court orders “incredibly troubling,” and “an overbroad interpretation of the Act” that “raise[s] questions about whether our constitutional rights are secure.”