Category Archives: Civil Liberties

My New Paper May Make Some of My Friends Angry

Building Privacy into the Infrastructure: Towards a New Identity Management Architecture comes to what I fear some of my friends in the privacy community will find to be an unacceptable conclusion.

I’ll be presenting it at the Privacy Law Scholars Conference in Washington next week. Hopefully, since many attendees are in fact friends, they won’t bring brickbats.

Posted in Cryptography, Econ & Money, Law: Internet Law, Law: Privacy, Surveillance, Talks & Conferences | Leave a comment

Drone Debate

In a Wall Street Journal debate today I argue that drones should not be allowed to overfly private property without the inhabitant’s consent due to the privacy risks, the consequent erosion of the 4th Amendment, and other dangers. This echoes some of the arguments in Self-Defense Against Robots and Drones, the recent Connecticut Law Review article I wrote with Zak Colangelo.

Ryan Calo gives the other side, arguing that overflights should be allowed in order to spur innovation. I think the WSJ sees him as the Bolshevik here, as they sum up the debate like this:

A. Michael Froomkin, the Laurie Silvers and Mitchell Rubenstein distinguished professor of law at the University of Miami School of Law, says that drones pose a huge threat to security and privacy, and that property owners should be able to keep them from flying over their land. Ryan Calo, an assistant professor of law at the University of Washington, says decisions about where and when drones can fly should be made collectively, not by individual landowners.

Who would have imagined I’d be the right-winger in a debate on the pages of the Wall Street Journal? I suspect that my former boss, Judge Stephen F. Williams, would be quite amused, although he’d probably describe it as vindication.

Posted in Law: Privacy, Robots, Surveillance | Leave a comment

Microsoft Sues to Kill or Reduce ECPA Gag Orders

Microsoft filed suit today seeking a judicial declaration that 18 U.S.C. § 2705(b) violates its First Amendment Rights, and the Fourth Amendment rights of the subjects of the orders.

I think this lawsuit is a Big Deal, and Microsoft has the right of it on moral grounds. On legal grounds it has a good arguable case, although the law is not so clear that I can call it a slam dunk. This excellent article by Steve Lohr in the NYT gives the outline, and quotes a soi-disant expert.

Perhaps the most interesting, if disturbing, fact is this one:

From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.

And of those secrecy orders, more than two-thirds contained no fixed end date. I.e. unless Microsoft were to go to court later to challenge them in individual proceedings, they orders would on their own terms last forever.

The text of Microsoft’s complaint is worth reading as it is very well done. Here’s the first paragraph:

Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests. People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.

Update: For an argument that courts will deny Microsoft’s facial challenge on the grounds that the claims can only be asserted ‘as applied’ — very much an emphasis of recent Supreme Court decisions disfavoring as facial challenges to statutes, see Jennifer Daskal at Just Security, A New Lawsuit from Microsoft: No More Gag Orders!. It’s more pessimistic than I would be, but not implausible.

Update2: Microsoft’s statement.

Posted in Civil Liberties, Law: Constitutional Law, Law: Free Speech, Law: Internet Law, The Media | Leave a comment

Cory Nails It

A brief history of the surveillance debate:

2012: "Mass surveillance is fine — if it wasn’t, you’d see major corporations trying to court new business by building in crypto tools that kept out the surveillance agencies. The fact that they’re not doing this tells you that surveillance opponents are an out-of-touch, paranoid minority."

2016: "Mass surveillance is necessary — when companies use crypto tools as ‘marketing ploys,’ they’re getting in the way of something we all agree is proportionate and legitimate!"

Posted in Cryptography, Surveillance | Leave a comment


Chicago data supports effectiveness of predictive policing. But maybe not how you expect:

[T]he number of complaints an officer receives in a certain year predicts whether and how many complaints he or she will have in the following year.1 Over multiple years, the signal becomes even stronger. Officers with a baseline history of one or two complaints in 2011-13 have a 30 percent to 37 percent chance of receiving a complaint in the following two years.2 But repeaters — those with 15 or 20 incidents in the first part of the data set — are almost certain to have a complaint against them in 2014-15.

… Even after controlling for neighborhood, however, individual officers with more complaints in 2011-13 remained more likely to have complaints filed against them in 2014-15.

… [C]omplaints were not only predictive of the number and type of future complaints — they also forecast whether the department would determine misconduct. Officers with 10 or more complaints in early years of the data set were about six times more likely to have a complaint from the last two years sustained against them.

… For all the complexity of policing, there is a clear signal in the data of who the bad actors are and, to a lesser extent, whether they are going to commit misconduct.

Posted in Civil Liberties, Law: Criminal Law | Leave a comment

Can Governors Prevent Syrian Refugees From Entering Their States? (Updated)

I am confident that in a just world, the answer should be “no”. But we don’t always live in a just world. I wish I had time to write a careful analysis, but I don’t, so here are some first thoughts. Corrections and amplifications welcomed.

UPDATE: This is why I should never blog from memory, at least pre-coffee. This morning I conflated the right to move about within a state — not a clearly established federal right, cf. the aftermath of Katrina — with the right to move about between states, which is quite well established: Sáenz v. Roe, 526 U.S. 489 (1999) held that a classification (here, lesser welfare benefits for new residents in their first year) that has the effect of imposing penalty on the right to travel violates the Equal Protection Clause absent a compelling governmental interest. What’s more the Court defined the right to travel interstate as having three parts: the right to enter and leave another State; the right to be treated as a welcome visitor while temporarily present in another State; and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.

That ought to settle it.

Three areas of law seem relevant to the question.

First, immigration law, which is a matter of only federal concern. States do not in any way get to control movement across the international border. So if the feds want to let refugees into the US, they are admitted to the US. Even at airports in states that say they don’t want refugees.

Second, anti-discrimination law. Here, we find more of a patchwork. Rather than a single federal statute prohibiting national origin discrimination, we have a collection of piecemeal legislation. It might be that none of the usual anti-discrimination laws, which are aimed at things like housing and employment, speak to the issue of free movement between states.

Third, and not least, there is the Equal Protection clause of the Constitution, backed up by § 1983 of the federal code (§ 1983 prohibits the deprivation of constitutional and federal statutory rights by persons acting under “color of law”). As I understand it, neither the Equal Protection Clause nor any other part of the Constitution has been definitively held by the courts to create a right of free movement between states. [Note the update above – should be “within” not “between”.] Thus, at least at the Supreme Court level, it is technically an open question whether a state might close its borders to everyone. (The question arose after authorities closed a bridge preventing escape from areas of New Orleans hit by Hurricane Katrina. I have some doubts that a state could seal its border legally other than briefly in response to an emergency, but again, if memory serves the Supreme Court hasn’t prohibited that in so many words.) What is not at doubt, however, is that if a state were to attempt some sort of border control, it must do so in a manner that does not discriminate invidiously. (If they are searching for a White Toyota, it is not invidious to only stop White Toyotas.) The state may not treat its own inhabitants better than those of other states. And it may not discriminate on grounds of race or any other suspect class. I would presume national origin is such a class; whether immigration status qualifies (if only a proxy for national origin) is a little trickier, but I’d hope so.

Somewhat related: Important Freedom to Travel Decision From the DC Circuit (7/11/09); Plenty of Blame to Go Round (IV) (9/11/05)

Posted in Civil Liberties, Law: Constitutional Law, Law: Right to Travel | Leave a comment