My brother has his inaugural article up at First Media’s “The Intercept”: The Terrible Toll of Secrecy.
Category Archives: Surveillance
As part of the “Today We Fight Back” initiative I clicked the “call your legislator” button on the pop-up I’ve installed here for the day. The way it works is you give your phone number, then their bot calls your phone, asks for your zip code, and connects you to your representatives.
I was duly connected to Sen. Nelson’s office, where they answered on the second ring, and a polite gentleman noted my concerns and promised “to pass it along to the Senator” (uh-huh).
Then the app connected me to Senator Rubio’s office. The phone rang eight times and no one answered. Is no one home? Do they have caller ID and not bother answering calls that come in via the EFF’s app?
Then it was on to Rep. Ros-Lehtinen’s office, where it barely rang twice, and another nice gentleman, this time with an Australian accent, took down my info.
Back when I did politics, I used to only half-jokingly say that one indication of a struggling political outfit was if the phone ever rang more than three times. By that standard Rubio is tanking.
Not answering the phone is no way to treat constituents, even if you know they don’t agree with you. Lame. Very lame.
Today is Data Privacy Day. Start your celebration with Unqualified Offerings:
Snowden’s revelations must be especially hard on the psychiatric profession. If one patient dismisses the idea that the government is spying on him, and the other is convinced that the government is working with major electronics manufacturers to put listening devices in his personal belongings, which one do you diagnose as being unable to distinguish reality from fantasy?
At a University committee meeting recently, I suggested the University should provide us all with encryption so we can protect our data on our computers, and in transit, as it was at risk of interception. The ranking University official at the meeting smiled dismissively and said something along the lines of ‘Well, if you are worrying about that…”. I said, “but it’s national policy – the President announced it.” He stopped smiling.
1. The NSA hacks BIOSes. Indeed it does everything that it wants you to worry that the Chinese might do and more. The NSA even monitors certain online orders of computers so it can intercept the computers and modify them with BIOS-level or system-level spyware.
2. It’s possible to hack a MicroSD card — or indeed any flash storage device. I’m waiting to learn when the NSA does that too.
Judge Leon Rules that NSA Bulk Telphony Meta-Data Collection Program is Likely Unconstitutional (Updated)
It takes a legal leap to do it, but U.S. District Court Judge Richard Leon ruled today that the NSA’s dragnet metadata collection program is likely a violation of the Fourth Amendment (the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”). It’s only ‘likely’ because this is a ruling on a request for a preliminary injunction, but there’s no doubt about the drift even on a very rushed read.
To get there Judge Leon has to take several steps, at least one of which will likely be controversial.
1. Judge Leon finds (some of) the plaintiffs have standing. I don’t think this will be the controversial part, although I commend the text around footnote 36, and especially footnote 36, to anyone who has doubts.
2. Judge Leon holds that the APA review is implicitly precluded by FISA and by the Patriot Act. Generally, courts do not find implied preclusion of the APA, and I never like it, but I do not think this will be the controversial part of this opinion.
3. Judge Leon holds that the collection and analysis of telephone metadata is a search. I think this obviously is the right answer on first principles. Doctrine makes it harder to reach that conclusion than it should. For starters, there’s the problem of the pen register precedents — the Supreme Court has said that installing and using a pen registers is not a search, and they collect pretty much the same data as does the NSA — just one line at a time, and for limited intervals. Doctrine does not make it easy to say that the scope and scale of the NSA’s activities are so transformative as to make Smith v. Maryland, 442 US 735 (1979) (pen register not a 4th Amendment search) inapplicable. But that’s what Judge Leon more or less does. He also relies, somewhat less persuasively, on the close relationship between the government and the carriers as far exceeding any reasonable expectation of erosion of privacy. Slightly more persuasive is the argument that technological change — the ways in which the data can be used — make it time to rethink Smith as does the change in the way we use phones — one mobile per person, instead of one fixed line phone in 90% of homes when Smith was decided. I think the most one can say here is that if the Supreme Court wants to revisit Smith as five Justices may have signaled in United States v. Jones, 132 S. Ct. 945 (2012) [Smith and Jones, what great names for privacy and mass surveillance cases!], then here’s the chance to do so.
4. Judge Leon rejects the ‘special needs’ exception to the Fourth Amendment. I think this exception is a mistake on principle, but again it’s doctrine. But here the doctrine is less helpful to the NSA, especially as it appears that it introduced no evidence — despite being invited to do so — as to the efficacy or utility of the bulk meta-date program. That might change, though, if the trial ever gets to the merits.
all the other trial court s that have addressed the bulk telephony metadata collection program ruled that it was legal.
Judge Leon stayed his own order pending appeal, which is certain. How timely that Obama’s new nominees to the D.C. Circuit will be on duty for the all-too-likely en banc!
Watch their lips. If they’re moving…
(Apologies if this auto-played; I had inconsistent results with different browsers. Embedding Daily Show links is harder than it should be.)