Category Archives: Law: Privacy

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.

Incidentally, all the other trial courts 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!

Posted in Law: Privacy, Surveillance | 5 Comments

As We Suspected (Updated)

FBI can secretly activate your webcam, without you being any the wiser – ex-official – Pogo Was Right Blog.

Update: Juan Cole offers a useful juxtaposition: FBi Laptop Camera Snooping and Orwell’s 1984: Side by Side Comparison. Click through for the graphic.

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Impeach James R. Clapper

Director of National Intelligence James R. Clapper caught lying again. (Not the first time.)

If we ever want to put an end to the parade of lies the public (and Congress!) have been subjected to on surveillance, the only way to do it is to take some scalps. By undermining the democracy he thinks he is protecting, Mr. Clapper, however patriotic his motives, has made a good claim to be at the head of the line.

Posted in Civil Liberties, Law: Privacy | 2 Comments

The Regularity of Evil

Read Jennifer Granick’s account of My Dinner With NSA Director Keith Alexander.

The two most striking things were, first, that General Alexander — the head of one of our biggest intelligence agencies — can’t even conceive that a member of the establishment might be to the left of Senator Wyden. Any world view that puts Senator Wyden as the leftmost pole of legitimate domestic politics is seriously impoverished, maybe dangerous.

Second, there’s the clash of cultures: “trust us” (from a body proven again and again and again to grossly mislead) verses the lawyer’s view of ‘if men were Angels‘.

Posted in Civil Liberties, Law: Privacy | 15 Comments

Why the NSA Surveillance Program is Illegal

The Criminal N.S.A., is an important NYT op-ed today by Jennifer Stisa Granick and Christopher Jon Sprigman, explaining the errors of the Obama Administration’s claim that the NSA’s mass surveillance programs are legal.

Here are a few key paragraphs, but read the whole thing,

The government claims that under Section 215 it may seize all of our phone call information now because it might conceivably be relevant to an investigation at some later date, even if there is no particular reason to believe that any but a tiny fraction of the data collected might possibly be suspicious. That is a shockingly flimsy argument — any data might be “relevant” to an investigation eventually, if by “eventually” you mean “sometime before the end of time.” If all data is “relevant,” it makes a mockery of the already shaky concept of relevance.

And,

Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.

If the surveillance is not authorized by law, then the surveillance is criminal. Not that anyone will ever be charged, of course.

Posted in Law: Privacy | 3 Comments

The Wages of Allowing Federal Spying on Your Customers

Thousands of technology, finance and manufacturing companies are working closely with U.S. national security agencies, providing sensitive information and in return receiving benefits that include access to classified intelligence, four people familiar with the process said.

— according to Bloomberg, U.S. Agencies Said to Swap Data With Thousands of Firms.

Turns out what the firms are getting is not data on customers — nor in the main is that what they are giving. Rather the firms are giving advance info on vulnerabilities in their systems that could be used to by the TLA’s1 to get information from vulnerable systems. Plus some of the firms are allowing the feds to install monitoring equipment on their networks, ostensibly to protect against hacking, but in at least some cases with the ability to spy on message traffic.

In exchange, the firms are getting information about who, especially from abroad, is trying to hack them, and some help and advice on defending themselves.

I have no problem with the feds helping US corporations defend themselves against foreign (or domestic) hackers. I do have a problem if the price of that defense is allowing the feds access to customer data.

My first instinct is that I wouldn’t have a problem with firms like Microsoft giving advance warning about vulnerabilities to the feds — whether it is so they can harden their own systems or even if it is so they can take advantage offensively to hack into foreign targets. I would feel that way, however, only so long as I believed the program had adequate safeguards to prevent its misuse against US persons, whether at home or abroad. And, unfortunately, there is no particular reason to believe that to be the case. There is at present a lack of accountability.


  1. TLA == Three Letter Agencies []
Posted in Civil Liberties, Law: Privacy | 1 Comment

We Predicted This One Years Ago

Accused bank robber wants NSA phone records for his defense

One of the exceptionally odd things about about the revelations about the NSA metadata and phone records revelations is that I, not to mention various other Cypherpunk fellow travelers, predicted all this 15 years ago.

In fact, we predicted it so long ago, that almost no one seems to remember we did.

I have to say, though, that this is the first story I’ve seen on the subject that made me smile. So that’s something.

Unfortunately, this may not be the perfect test case:

Prosecutor Michael Gilfarb told the judge that even if the information is available, it may be irrelevant depending on whether Brown carried a phone.

Brown’s wife, Vesta Murat Brown, who testified for the prosecution Wednesday morning, told jurors that her husband didn’t have a cellphone at the time but sometimes borrowed phones from her, other family members or friends.

But even if it isn’t, it won’t be long:

Local lawyers said they anticipate there will be many more requests for this kind of information now that defense attorneys know the information may have been preserved.

Posted in Law: Privacy | 2 Comments