Monthly Archives: June 2013

Why the NSA Surveillance Program is Illegal

Posted on June 28, 2013 by Michael Froomkin

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

Presidential Commission on Election Administration Meeting a UMiami Tomorrow (6/28)

Posted on June 27, 2013 by Michael Froomkin

There’s going to be a big meeting on Election rules at U.Miami tomorrow. Here’s the announcement from the Presidential Commission on Election Administration.

PCEA Announces Public Meeting on Friday, June 28, 2013

WASHINGTON, June 12, 2013 — The Presidential Commission on Election Administration will convene a public meeting on June 28, 2013, in the Hurricane Room at the BankUnited Center, University of Miami, 1245 Dauer Drive, Coral Gables, FL 33146, beginning at 9:00 a.m. eastern time, ending no later than 5:00 p.m.

The Meeting notice has been published in the Federal Register and is available to view here: *The Presidential Commission on Election Administration (PCEA); Upcoming Public Advisory Meeting. *Note the location has changed from what is posted in the Federal Register. The meeting will be held in the Hurricane Room at the BankUnited Center on the campus of the University of Miami.

For more information, contact:
Mr. Mark Nejbauer
Designated Federal Officer
Presidential Commission on Election Administration
mark.nejbauer@supportthevoter.gov

I wonder why they moved it?

Unfortunately, I can’t make it, but if anyone reading this is going, would you consider live Tweeting it? (Let us know your Twitter handle or hashtag in the comments.) Or if you prefer, send in periodic reports as comments below.

Posted in Coral Gables, Law: Elections, Miami, U.Miami | Comments Off on Presidential Commission on Election Administration Meeting a UMiami Tomorrow (6/28)

UnderStanding the Sting in Hollingsworth v. Perry

Posted on June 26, 2013 by Michael Froomkin

I’m of course happy that the Supreme Court today issued two rulings that affirm the validity of state-sanctioned same-sex marriage. The full texts are at US v. Windsor and Hollingsworth v. Perry.

But I have to say that there is some bitter wrapped up in the sweet. Chief Justice Roberts’s opinion in Hollingsworth has a pretty bad sting, one well laid-out in Justice Kennedy’s dissent. The issue for me goes back to a key standing decision, Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992). That decision held open the door to ‘bounty’ statutes creating standing: thus if Congress, or a state legislature, wanted to create generalized standing, it need only create a small dollar prize for vindicating a right. At that point, there’s a financial interest, and anyone can bring the case. (Thus, for example, qui tam actions.) As a general matter, liberals have wanted to expand access to courts, and conservatives have sought to narrow it — although one might question the political wisdom of the liberal strategy since the current Court is, IMHO, merely regressing to a historic mean; the Warren Court was a rare departure from the generally conservative, even reactionary, bent which is almost a structural feature of a life-tenured judiciary staffed primarily by older lawyers.

The key move in Hollingsworth, per Roberts with the votes of Scalia and (perhaps unfortunately?) the Court’s moderates and liberals, is to say that California’s state law practice of saying that proponents of a ballot initiative have standing to sue to vindicate it does not cut any ice in federal court. I hope this does not come back to bite us, but I’m fairly sure that it will in future standing cases.

Update: Mark Tushnet is worried about this too. In Perry and the Constitutionalization of Agency Law he writes:

The question then is, What other state-law entitlements are constrained by Article III for standing purposes? (Here “state-law” is a shorthand for “entitlements created by law outside Article III,” so the principle applies to congressionally-determined entitlements as well.) Akins says that Congress can create a right to information merely to satisfy the requestor’s curiosity; Lujan says that Congress can’t create a right to ensure that “the law” be adhered to. Perry is somewhere in between, but who knows exactly where. Maybe the technical problem in Perry is that the California Supreme Court didn’t use the right magic words to describe the initiative proponents as “really, really” agents of the people.

Posted in Law: Con Law: Marriage, Law: The Supremes | Comments Off on UnderStanding the Sting in Hollingsworth v. Perry

Constitutional Snark

Posted on June 25, 2013 by Michael Froomkin

If I were of a snarky disposition, I’d ask a question about how today’s decision in Koontz v. St. John’s River Water Management District applies to the TSA.

Among other things, today’s opinion by Justice Alito states that the unconstitutional conditions doctrine vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up (in this case by demanding excessive pro-environmental spending or concessions from a wetlands developer), and reiterates that “the government may not deny a benefit to a person because he exercises a constitutional right.” What’s more, the decision states that “A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval.”

Doesn’t all this resonate with the implicit conversation when you go to the airport and want to fly on a plane? ‘Agree to be irradiated or groped, or give up your right to travel’1 I think I know the answer Justice Alito would give: either there is no such constitutional right not to be searched in the circumstances, so nothing is being given up, or the loss is somehow not important given the state interest. Funny how that doesn’t work for property, though.

Fortunately, I am well medicated these days, so I don’t snark hardly at all.

  1. For those who deny the existence of the right to travel, how about ‘give up the right to your property/contract interest in your non-refundable ticket’. [↩]
Posted in Law: Constitutional Law, Law: Right to Travel | Comments Off on Constitutional Snark

Would a Property Qualification for Voting Be Constitutional?

Posted on June 25, 2013 by Michael Froomkin

Historian David Kaiser asks whether a property qualification for voting would be Constitutional:

It occurred to me this morning that the solution to Republican electoral problems is, when you think about it, obvious, and a friend of mine from a red state pointed out that a Tea Party leader has already mused about it, back in the heady days of 2010. The solution, which has a rich tradition in western and US history, is a property qualification for voting. And what is rather shocking is that there does not seem to be anything in the Constitution to prevent it.

Clearly, there is nothing in the basic, or even 10-amendment, Constitution — at least as originally understood — that would prevent a state from imposing a property qualification. Several states had them in the early years of the Republic (just as at least one had an established church for several years). I think the main federal issue would be whether the Equal Protection Clause of the 14th Amendment, as currently understood, would block a property qualification. There would, undoubtedly, also be state constitutional law issues in many states.

I’m not an Equal Protection expert by any means, but my knee-jerk reaction is ‘of course that isn’t Constitutional’. That said, it’s not explicitly barred, which I suppose means that were the Court to treat the question doctrinally, it would apply strict scrutiny. I don’t see how a state would come up with justifications for a property requirement that would survive strict scrutiny, but I’m open to correction on anything in this last paragraph by people who actually know stuff.

Posted in Law: Constitutional Law, Law: Elections | 3 Comments

Paranoids Really Do Have Enemies

Posted on June 21, 2013 by Michael Froomkin

Use of Tor and e-mail crypto could increase chances that NSA keeps your data | Ars Technica

Update: For the point of view that all is well, except for the fact of the leaks, see Stewart Baker, But Enough About You …. Note that to read this post in its true context you need to understand what it means for the NSA to decide a post might be foreign in some way. A good place to start might be Ed Felton’s 51% foreign test doesn’t protect Americans.

Posted in Cryptography | 1 Comment