Silberman says he has long thought FISA court was unconstitutional b/c judges shouldn’t make policy #privacyact & they become rubber-stamps
— Dan Froomkin (@froomkin) October 30, 2014
Category Archives: Law: Privacy
The NYT has a great story today, Miss a Payment? Good Luck Moving That Car on sub-prime loans for cars requiring that buyer accept installation of an immobilizer that can be operated by remote control by the lender’s agents. The article concentrates on ways in which these are being abused, e.g. immobilizing cars in traffic, far from home, when payments are not in fact late, and more.
It also hints at a group of legal issues, notably privacy (the GPS technology on which the immobilizer relies makes cars trackable by the monitoring company), and whether state laws on repossession — which require more notice, or more time between a missed payment and authorized action by the lender — should apply to a ‘virtual repossession’ or not. (Attention: Student note topic seekers. Doing this analysis in just one state would be a fine topic, and a social good.)
Then there’s the sociological aspects,
Beyond the ability to disable a vehicle, the devices have tracking capabilities that allow lenders and others to know the movements of borrowers, a major concern for privacy advocates. And the warnings the devices emit — beeps that become more persistent as the due date for the loan payment approaches — are seen by some borrowers as more degrading than helpful.
“No middle-class person would ever be hounded for being a day late,” said Robert Swearingen, a lawyer with Legal Services of Eastern Missouri, in St. Louis. “But for poor people, there is a debt collector right there in the car with them.”
Missing, though, is the first thing that occurred to the cypherpunks when this technology first got mooted over a decade ago: How long until it is hacked? What happens when some bad guy starts war driving with a black box immobilizer causing accidents or other harms? And to what extent will the makers of the immobilizer be liable for those harms? Another good student note, at the very least.
[Note: Edited to add italicized line in second paragraph, which mysteriously got cut out before posting.]
It’s a great tool, but not a great reality. Here, for example, is what I got when I searched for large banks in Florida with adequate privacy policies (allowing opt-out from all categories of information sharing):
Click above for a larger image. Key facts are that it’s Monday March 31st, 12:30-1:50pm in the SAC-Law School Multipurpose room. And they’ll feed you lunch!
EFF tries to strike a note of cautious optimism about President Obama’s NSA reform package, Obama Takes First Steps Toward Reforming NSA Surveillance, but Leaves Many Issues Unaddressed, even though by my reading Obama’s reforms, such as they are, don’t do very well on yesterday’s EFF scorecarrd.
US privacy advocates are right to conditionally welcome some of Obama’s reforms, but they should take into account two critically important implications that the President avoided.
The first of these is the NSA’s intimate operational partnership with Britain’s SIGINT agency, GCHQ. Nothing in his reform package indicates a brake on the current arrangements which allow GCHQ to collect information on US persons.
The second key element is that the proposals appear to merely shift the current collection and retention of metadata from a centralised NSA operation to more of a European-style communications data arrangement that requires commercial entities to maintain a distributed retention. That arrangement in Europe has been deemed unlawful, but there is every chance the US will adopt it.
All things considered, the prospects for genuine intelligence reform at the global level are more bleak than they were 24 hours ago.
I’m underwhelmed by President Obama’s new Presidential Policy Directive/Ppd-28 on Signals Intelligence.
As I read it, the document announces various fine principles for how drift-net collection of email and telephone and other computer data will be used, but says nothing about collecting any less of it. The memo purports to define “why, whether, and how” this data will be collected; in fact it has a lot more to say about limitations on use than collection, most of it pretty good.1
Unfortunately the collection section, section 3, is the shortest and, on first reading, the worst. Here it is in full:
Sec. 3. Refining the Process for Collecting Signals Intelligence.
U.S. intelligence collection activities present the potential for national security damage if improperly disclosed. Signals intelligence collection raises special concerns, given the opportunities and risks created by the constantly evolving technological and geopolitical environment; the unique nature of such collection and the inherent concerns raised when signals intelligence can only be collected in bulk; and the risk of damage to our national security interests and our law enforcement, intelligence-sharing, and diplomatic relationships should our capabilities or activities be compromised. It is, therefore, essential that national security policymakers consider carefully the value of signals intelligence activities in light of the risks entailed in conducting these activities.
To enable this judgment, the heads of departments and agencies that participate in the policy processes for establishing signals intelligence priorities and requirements shall, on an annual basis, review any priorities or requirements identified by their departments or agencies and advise the DNI whether each should be maintained, with a copy of the advice provided to the APNSA.
Additionally, the classified Annex to this directive, which supplements the existing policy process for reviewing signals intelligence activities, affirms that determinations about whether and how to conduct signals intelligence activities must carefully evaluate the benefits to our national interests and the risks posed by those activities. (footnote omitted)
I read that to mean … “trust us”. Am I wrong?
There is one odd footnote, footnote 5, that I don’t fully understand:
The limitations contained in this section do not apply to signals intelligence data that is temporarily acquired to facilitate targeted collection. References to signals intelligence collected in “bulk” mean the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).
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!