Five Reasons Why the Courts Aren’t Enough to Ensure Drone Privacy
By Jay Stanley | ACLU | March 15, 2013
Yesterday the drone regulation bill in the Washington state legislature died, having failed to meet the cutoff date for moving to the House floor. Although our lobbyist there thought the bill would have passed both houses had the Democratic leadership allowed it to get there, they did not. Boeing lobbied against the bill, as did law enforcement.
One of the arguments presented by opponents, our Washington state lobbyist Shankar Narayan reports, was the claim that no regulations are needed for drones because we ought to let the courts work out the privacy issues surounding drones and deal with any abuses that arise. I have also heard spokespeople for the drone industry association, the AUVSI, making this argument lately. It seems to be emerging as a primary argument of drone-legislation opponents.
This is a weak argument. Let me briefly give five reasons why:
- There is no reason to wait for abuses to happen when they are easily foreseeable. When you put an enormously powerful surveillance technology in the hands of the police and do not place any restrictions on its use, it will be abused, sooner or later, in ways illegal (i.e. by bad apples) and legal (i.e. through officially approved policies that nonetheless violate our Constitution and/or values). Why wait, when we can prevent them before they take place and spare their victims the grief?
- The legal system has always been very slow to adapt to new technology. For example, it took the Supreme Court 40 years to apply the Fourth Amendment to telephone calls. At first the court found in a 1928 decision that because telephone surveillance did not require entering the home, the conversations that travel over telephone wires are not protected. It was not until 1967 that this literal-minded hairsplitting about “constitutionally protected areas” was overturned (with the court declaring that the Constitution “protects people, not places”). Today, technology is moving far faster than it did in the telephone era—but the gears of justice turn just as slowly as they ever have (and maybe slower).
- There are many uncertainties about how our Constitution will be applied by the courts to aerial surveillance. Just as the new technology of the telephone broke the Supreme Court’s older categories of understanding, so too will drones with all their new capabilities bring up new situations that will not fit neatly within existing jurisprudential categories of analysis. For example, how will the courts view the use of drones for routine location tracking? The Supreme Court started to grapple with such questions in its recent decision in the Jones GPS case, but it is far from clear what the ultimate resolution will be. The Supreme Court has ruled before that the Fourth Amendment provides no protection from aerial surveillance, even in one’s backyard surrounded by a high fence, and while the new factors that drones bring to the equation could shift that judgment, we cannot be certain. Legislators should not sit around waiting for cases to come before the courts; they should act to preserve our values now.
- Legislatures often set rules even when the Constitution would seem to cover something. To take just one example: after the Supreme Court issued that 1967 ruling that a warrant was needed to tap someone’s phone, Congress went on to enact detailed standards the government had to follow before it could do so. What it did not do was throw its hands up and say “the court has ruled, if there are any further abuses we can let the courts take care of them.”
- Our courts often defer to the judgments of elected bodies. While the courts’ role is to step in and protect fundamental rights when they are threatened by the majority, they normally show great deference toward the judgments of elected representatives of the people. And for good reason—we live in a democracy, and unless fundamental rights are at stake decisions should be made by our democratic representatives. A legislature acting to protect fundamental rights such as privacy does not threaten such rights, and there is no reason why elected representatives shouldn’t act to protect our fundamental values if they feel that the citizens in their districts want them to.
Let’s hope that state legislators in other states don’t fall for this line of argument.
Captive Ukrainian journalist escapes Syrian rebels
RT | March 11, 2013
After five months of captivity in fear of execution, Ukrainian journalist Anhar Kochneva has safely escaped from Syrian rebels, Kochneva’s ex-husband told RT.
Relatives and friends of the journalist said Kochneva managed to escape the building she was kept in, and hid from the pursuers in the mountains. She then had to walk about 15km before reaching Syrian army forces, and is now travelling to Damascus in safety.
Kochneva ironically wrote she’s “back from the Wonderland” in a short LiveJournal post, promising some further details later.
She also confirmed the details of her escape in two brief media interviews, saying the captors mistreated her, and she decided to run away for the fear that they would kill her and blame government forces for another death. Kochneva said she had to live in a cold room with a broken window, leaving her health in a terrible state.
Despite this, the journalist vowed to remain in Syria and continue to highlight the ongoing conflict.
“The world is just blind… I will definitely do everything for the people to discover, what is really going on here,” Kochneva told Business FM, saying Syria is “a friend in need”.
Anhar Kochneva, who had reported critically about the Syrian rebels for Russian and Ukrainian news outlets, was captured in the beginning of October 2012 near the city of Homs. The city, seen as the cradle of the Syrian revolution, has recently been going through frequent fighting outbursts, which Kochneva was following at the time of her capture.
The kidnappers, members of the Free Syrian Army, had repeatedly threatened to kill the journalist in December, if a US$50 million ransom was not paid. They later lowered the sum to reportedly $300,000, and announced they had “spared” Kochneva for the time being.
Kochneva’s relatives said they had been unaware of her fate since New Year, and accused the Ukrainian Foreign Ministry of being “inactive” and “ignoring the negotiation process.”
Syrian rebels, who had been in contact with the journalist’s former husband, also claimed that Ukrainian authorities were doing nothing. The rebels uploaded several videos of Kochneva last year, in which she admitted to having participated in the fighting, and of working as a military interpreter with Syrian and Russian officers.
International groups like the Committee to Protect Journalists, ARTICLE 19, the International Press Institute and Reporters Without Borders have questioned the objectivity of these videos, saying the journalist appeared to be speaking under pressure.
The groups urged the Free Syrian Army and the Syrian Opposition Coalition to ensure that the journalist is safe and set free, and called for world governments to assist in her release.
The Foreign Ministry of Ukraine has said that it was taking all necessary measures to free the journalist and urged Damascus for “concrete results” in attempts to release her.
The ministry has confirmed on Monday that Kochneva is free, without elaborating on the circumstances of her escape.
John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights
Emptywheel | March 8, 2013
According to the White House, John Brennan was sworn in as CIA Director on a “first draft” of the Constitution including notations from George Washington, dating to 1787.
Vice President Joe Biden swears in CIA Director John Brennan in the Roosevelt Room of the White House, March 8, 2013. Members of Brennan’s family stand with him. Brennan was sworn in with his hand on an original draft of the Constitution, dating from 1787, which has George Washington’s personal handwriting and annotations on it.
That means, when Brennan vowed to protect and defend the Constitution, he was swearing on one that did not include the First, Fourth, Fifth, or Sixth Amendments — or any of the other Amendments now included in our Constitution. The Bill of Rights did not become part of our Constitution until 1791, 4 years after the Constitution that Brennan took his oath on.
I really don’t mean to be an asshole about this. But these vows always carry a great deal of symbolism. And whether he meant to invoke this symbolism or not, the moment at which Brennan took over the CIA happened to exclude (in symbolic form, though presumably not legally) the key limits on governmental power that protect American citizens.
Update: Olivier Knox describes how the White House pushed the symbolism of this.
Hours after CIA Director John Brennan took the oath of office – behind closed doors, far away from the press, perhaps befitting his status as America’s top spy – the White House took pains to emphasize the symbolism of the ceremony.
“There’s one piece of this that I wanted to note for you,” spokesman Josh Earnest told reporters gathered for their daily briefing. “Director Brennan was sworn in with his hand on an original draft of the Constitution that had George Washington’s personal handwriting and annotations on it, dating from 1787.”
Earnest said Brennan had asked for a document from the National Archives that would demonstrate the U.S. is a nation of laws.
“Director Brennan told the president that he made the request to the archives because he wanted to reaffirm his commitment to the rule of law as he took the oath of office as director of the CIA,” Earnest said.
Update: I’m assuming this copy of the Constitution is the one Brennan used.
Police militarization comes under nationwide investigation
RT | March 07, 2013
The American Civil Liberties Union has launched a campaign to investigate the growing trend of placing militarized police units in cities and towns across the country.
Doors busted down and windows smashed in. It’s becoming more of a regular occurrence each day in America as heavily-armed SWAT teams are being sent to the homes of suspects, often nonviolent ones, with enough firepower to take down a small army. In November, a botched raid ended with an 18-year-old girl in the hospital. Other incidents haven’t been exactly isolated either: guns get drawn on both grannies and grandkids alike, and equipping law enforcement officers with the means to make these nightmares become reality is easier by the day.
Police units across the US are becoming more like militaries than the serve-and-protect do-gooders that every young schoolboy once aspired to be. Not only are officers being trained to act with intensity as the number of these home invasions increase, but more and more police departments are being awarded arsenals of heavy-duty weaponry that are then being turned not onto members of al-Qaeda, but innocent children and unsuspecting house guests.
ACLU affiliates across the United States filed Freedom of Information Act requests with law enforcement agencies on Wednesday in hope of obtaining as much material as possible relevant to the ongoing expansion of small town police squads to heavily armed squadrons of soldiers.
“Federal funding in the billions of dollars has allowed state and local police departments to gain access to weapons and tactics created for overseas combat theaters – and yet very little is known about exactly how many police departments have military weapons and training, how militarized the police have become, and how extensively federal money is incentivizing this trend,” reads a statement released by the ACLU. “It’s time to understand the true scope of the militarization of policing in America and the impact it is having in our neighborhoods.”
On Wednesday, the ACLU issued a statement saying branches and affiliates in 23 states around the country filed over 255 public records requests only hours after the investigation was formally launched. The agencies hope that, by analyzing documents, can learn more about the extent that “federal funding and support has fueled the militarization of state and local police departments.”
“Equipping state and local law enforcement with military weapons and vehicles, military tactical training, and actual military assistance to conduct traditional law enforcement erodes civil liberties and encourages increasingly aggressive policing, particularly in poor neighborhoods and communities of color,” explains Kara Dansky, senior counsel for the ACLU’s Center for Justice. “We’ve seen examples of this in several localities, but we don’t know the dimensions of the problem.”
The ACLU says they want to know as much as possible about the type of training given to local SWAT officers, as well as information about the types of technology used by agencies around the country. Through the FOIA requests, the ACLU hopes to learn what types of weapons have been used, who they’ve been used on and what the end result has been. They also want documentation pertaining to the growing use of GPS technology, surveillance drones and any agreements between local police departments and the National Guard. The ACLU is also interested in any relationships between small law enforcement units and the US Departs of Defense and Homeland Security.
“The American people deserve to know how much our local police are using military weapons and tactics for everyday policing,” adds Allie Bohm, an advocacy and policy strategist for ACLU. “The militarization of local police is a threat to Americans’ right to live without fear of military-style intervention in their daily lives, and we need to make sure these resources and tactics are deployed only with rigorous oversight and strong legal protections.”
In 2011, the Department of Defense gave half-a-billion dollars’ worth of military machinery that would have been left otherwise unused to law enforcement agencies coast-to-coast. Among the items offered up to officers at no cost at all that year were grenade launchers, helicopters, military robots, M-16 assault rifles and armored vehicles. Before 2012 came to a close, figures for that year were expected to end with more than a 400 percent increase.
Peter Kraska, a criminologist at Eastern Kentucky University, tells journalist Radley Balko that while the militarization of police squads is indeed accelerating, it isn’t likely the ACLU will get all the answers they want.
“My experience is that they’ll have a very difficult time getting comprehensive, forthright information,” Kraska says. “If the goal here is to impose some transparency, you have to understand, that’s not what the SWAT industry wants.”
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Intelligence Committees Get Additional Targeted Killing Memos, But Not the Public
ACLU | March 5, 2013
WASHINGTON – In a win for congressional oversight over the government’s vast killing program, the Obama administration has shown an additional but undisclosed number of Office of Legal Counsel memos justifying the program to the Senate and House Intelligence Committees, but has continued to withhold some of its legal opinions from the Intelligence Committees and has not provided any of the legal opinions to the rest of Congress or to the American public. The legal opinions focused on non-citizens continue to be hidden from the Intelligence Committees.
“This is an important first baby step towards restoring the checks and balances between Congress and the president, but it isn’t enough. Amazingly, the Obama administration continues to hide at least some of its legal opinions, even from the intelligence committees. The intelligence committees should have been given all of the legal opinions years ago, particularly when the Obama administration has claimed broad authority to kill people, including American citizens, far from any battlefield,” said Senior Legislative Counsel Christopher Anders. “The legal opinions also shouldn’t stay hidden with the few dozen members of the intelligence committees, but should be available to all members of Congress and minimally redacted copies should be made public. It makes a mockery of the rule of law when the government hides the rules, or makes them up as they go along. It is time to come clean with Congress and the American people.”
Previously, only four memos were briefly shown to the Senate and House Intelligence Committees, which prompted some Senate committee members to stall the confirmation of John Brennan—the architect of the targeted-killing program and President Obama’s choice to run the Central Intelligence Agency. In response, the government sent additional materials to the Intelligence Committees, but has not shown the committees all 11 legal opinions sought by several committee members, and also has not provided the legal opinions to other senators or made them public. This afternoon, the Senate Intelligence Committee will vote on whether to send John Brennan’s nomination to the full Senate.
More information on the ACLU’s work on targeted killing can be found here: www.aclu.org/national-security/targeted-killings
Oral Argument on DNA Searches Provides Scary Glimpse Into the Future of Privacy
By Hanni Fakhoury | EFF | March 4, 2013
The Supreme Court recently heard oral argument in Maryland v. King, a case considering the constitutionality of warrantless DNA collection from arrestees. We’ve long warned about the privacy problems with the rise of cheap, easy and fast blanket DNA collection, and filed an amicus brief with the Court urging it to hold the government can only obtain this sensitive genetic material with a search warrant. While it can be fruitless trying to read the tea leaves of oral argument, one specific idea — that technological advances making DNA analysis faster means warrantless collection may be OK — should leave you worried about the fate of privacy going forward in the digital age.
One of the main disagreements surrounding the issue of DNA collection is whether the state is collecting DNA from arrestees for immediate identification — to figure out if they’ve arrested the right person and learn who that person is for purposes of making a bail determination — or for past and future investigation — to solve cold cases and to store DNA for future searches. The state has long claimed they used DNA for both, while we’ve argued the government simply isn’t able to use DNA collection for immediate identification purposes since there’s currently a delay in analyzing DNA ranging from several days up to a few months. But with the rise of rapid DNA analyzers which can analyze DNA in 90 minutes, law enforcement is chomping at the bit to purchase and install these devices at police stations across the country. When the lawyer challenging the blanket DNA collection argued that law enforcement’s interest in using DNA for immediate identification was simply not possible because of the lengthy delays in DNA analysis, Chief Justice Roberts interrupted to note (PDF):
Now, your brief says, well, the only interest here is the law enforcement interest. And I found that persuasive because of the concern that it’s going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it. But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that’s entirely different…
Other members of the court echoed this idea, hinting that if DNA analysis was done faster, than there could be a legitimate identification — as opposed to investigative — need for the practice. And if that was the case, then DNA collection was no different than fingerprinting, and the police could swab and collect DNA without a search warrant. This would be a dangerous Fourth Amendment precedent.
The reasonableness of a search under the Fourth Amendment has always depended on whether the search is reasonably related in scope to the circumstances that justify the search in the first place. But that determination shouldn’t hinge on how long it takes to do the search, but rather what the search reveals. And with DNA searches, an enormous amount of sensitive information is being revealed to the government: a person’s entire genome. Ignoring the breadth of this intrusion by focusing on the ease of collection — implicitly believing the easier it is to intrude into a private place, the less protected it is — elevates form over substance to the detriment of the right of privacy enshrined in the Fourth Amendment.
This dangerous thinking extends beyond DNA collection. We’ve already warned about the problems with warrantless home video surveillance and stingrays, or fake cell phone towers which the government has been very secretive about. As technological advances like these allow the government to easily collect and catalog greater amounts of information, courts run the risk of allowing broader and more intrusive searches to pass Fourth Amendment scrutiny simply because of the possibility of exposure. Instead, courts should be focusing on the actual intrusion and people’s expectation that private information will not be exposed, regardless of how technological advances can make government access easier or faster.
The fact the government can do something now it couldn’t do before doesn’t make it constitutional. In fact, it should be the opposite. As it becomes easier for the government to seize and analyze, institutional checks — like a search warrant — on the government’s power is necessary to protect privacy before it becomes a casualty to technological advances.
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DARPA scientists want to create database of all conversations
RT | March 4, 2013
Your digital footprint could be getting a whole lot bigger: Pentagon scientists are searching for a way to transcribe every real-world conversation that happens into computer-readable files.
Robert Beckhusen of Wired’s Danger Room says it wouldn’t be unlike a real-life Twitter feed or an “email archive for everyday speak.”
“Imagine living in a world where every errant utterance you make is preserved together,” Beckhusen writes in an article this week that explores a Defense Department project that’s been undertaken by its Darpa laboratories and is now in the hands of a University of Texas computer scientist named Matt Lease.
Least has received a few hundred thousand dollars from Darpa — the US military’s Defense Advanced Research Projects Agency — to help find a way to take cell phone conversations, board room meetings and every miniscule real world back-and-forth and have them digitized.
The project is being called “Blending Crowdsourcing with Automation for Fast, Cheap and Accurate Analysis of Spontaneous Speech,” and Lease will receive $300,000 in all from the government to work on it after winning a 2012 Young Faculty Award from Darpa last year.
Lease has previously worked with the Pentagon scientists on another project, Effective Affordable Reusable Speech-to-text, or EARS, which had him trying to find a better way to transcribe dialogue into text. Now after winning the respect of Darpa, he’s putting that research to work in hopes of finding a way to streamline all real world conversations into digital transcriptions. And by strategically crowd-sourcing the information, he thinks he might be able to do just that.
“Like other AI [artificial intelligence], it can only go so far, which is based on what the state-of-the-art methodology can do,” Lease tells Wired. “So what was exciting to me is thinking about going back to some of that work and now taking advantage of crowdsourcing and applying that into the mix.”
Lease says he saw both the “need and opportunity to really make conversational speech more accessible, more part of our permanent record instead of being so ephemeral, and really trying to imagine what this world would look like if we really could capture all these conversations and make use of them effectively going forward,” Lease adds.
Wired reports that the end result could mean that conversations and events could be transcribed and edited through crowdsourcing, then eventually and easily be shared with friends, family and colleagues. Once digitized, those dialogues could also be perused for general search purposes. By uploading everything, though, some concerns are quickly showing up. For one, there’s the matter of possible privacy violations brought on by the seemingly constant collection of data. Then, of course, there’s the matter of what is being done with it.
According to a 2003 memo from the Congressional Research Service, the EARS project that first got Lease involved in the Pentagon was being considered for a rather particular kind of use. That report said that dialogue could be inputted into the system by way of telephone conversations so that “the military, intelligence and law enforcement communities” could “extract clues about the identity of speakers.”
For now, Lease won’t even speculate as to why the Pentagon wants him to develop his crowdsourcing project. He agrees, however, that there is an issue with “respecting the privacy rights of multiple people involved.”
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Drone ‘Nightmare Scenario’ Now Has A Name: ARGUS
By Jay Stanley | ACLU | February 21, 2013
The PBS series NOVA, “Rise of the Drones,” recently aired a segment detailing the capabilities of a powerful aerial surveillance system known as ARGUS-IS, which is basically a super-high, 1.8 gigapixel resolution camera that can be mounted on a drone. As demonstrated in this clip, the system is capable of high-resolution monitoring and recording of an entire city. (The clip was written about in DefenseTech and in Slate.)
In the clip, the developer explains how the technology (which he also refers to with the apt name “Wide Area Persistent Stare”) is “equivalent to having up to a hundred Predators look at an area the size of a medium-sized city at once.”
ARGUS produces a high-resolution video image that covers 15 square miles. It’s all streamed to the ground and stored, and operators can zoom in upon any small area and watch the footage of that spot. Essentially, it is an animated, aerial version of the gigapixel cameras that got some attention for super-high resolution photographs created at Obama’s first inauguration and at a Vancouver Canucks fan gathering.
At first I didn’t think too much about this video because it seemed to be an utterly expected continuation of existing trends in camera power. But since it was brought to my attention, this technology keeps coming back up in my conversations with colleagues and in my thoughts. I think that’s because it is such a concrete embodiment of the “nightmare scenario” for drones, or at least several core elements of it.
First, it’s the culmination of the trend towards ever-more-pervasive surveillance cameras in American life. We’ve been objecting to that trend for years, and many of our public spaces are now under 24/7 video surveillance—often by cameras owned and operated by the police. But even in our most pessimistic moments, I don’t think we thought that every street, empty lot, garden, and field would be subject to video monitoring anytime soon. But that is precisely what this technology could enable. We’ve speculated about self-organizing swarms of drones being used to blanket entire cities with surveillance, but this technology makes it clear that nothing that complicated is required.
Second and more significantly to me, this technology also makes real a key threat that drones pose to privacy that we’ve talked about: the ability to do location tracking. The video shows cars and pedestrians near Quantico, Virginia automatically tagged with colored boxes, which follow them as they move around. As the technology’s developer told NOVA,
Everything that is a moving object is being automatically tracked. The colored boxes represent that the computer has recognized the moving objects. You can see individuals crossing the street, you can see individuals walking in parking lots.
The surveillance potential of such a tracking algorithm attached to such powerful cameras is worth pausing to think about. To identify someone there’s no need for face or license-plate recognition (which may be impractical from above anyhow), cell phone tracking, gait recognition, or what have you. Even knowing where a little green square starts and finishes its day can reveal a lot, because it turns out that even relatively rough location information about a person will often identify them uniquely. For example, according to this study, just knowing the zip code (actually census tract, which is basically equivalent) of where you work, and where you live, will uniquely identify 5% of the population, and for half of Americans will place them in a group of 21 people or fewer. If you know the “census blocks” where somebody works and lives (an area roughly the size of a block in a city, but much larger in rural areas), the accuracy is much higher, with at least half the population being uniquely identified.
However, ARGUS-type tracking could be used to get more precise data than that—in many cases, to determine a vehicle’s home address, which pretty much reveals who you are if you’re in a single-family home, and narrows it down pretty well even if you’re in a large apartment building. (Academic papers have been written on inferring home address from location data sets.) Add work address and I expect that would nail virtually everybody. And of course lodged in the data set would be not just where a particular vehicle starts and finishes its day, but all the places it stopped in between—potentially revealing, as we so often point out, an array of information about a person such as their political, religious, and sexual activities.
True, such tracking using ARGUS would be disrupted whenever a subject disappears from aerial view. For example, pedestrians who travel by subway or bus or walk under foliage, or vehicles entering tunnels, would be harder to track. But even there, datamining large data sets collected over time could probably reveal a lot of things about people’s daily patterns and I would bet could eventually be used to identify a surprisingly large number of them. I expect that ARGUS would be used (if it’s not already) to generate a database consisting of location tracks of moving vehicles or pedestrians beginning in one place and ending in another. Think of them as little strings on a map. Some of these strings would stretch from a person’s home to their work, with stops in between, while others might be fragments, interrupted by a tunnel or other obstruction. But even the fragments, when the dimension of time is added to the equation, could probably be correlated together.
Of course low-lying clouds or fog might also interfere with aerial tracking, though imaging technologies already in existence could probably be deployed to see through them.
NOVA was not allowed to show images of the ARGUS censor, and stated that part of the program remained classified, including whether it has yet been deployed. (Though, we know it has been deployed domestically at least once, over Virginia as shown on NOVA. I’m going to assume it has not been deployed domestically in any more routine manner.) But, it is good that the Air Force allowed NOVA to see its capabilities. I’d like to think it’s because as Americans, Air Force officials have respect for our country’s values and democratic processes and don’t want to let such powerful and potentially privacy-invasive tools to be created in secret. It could also be, however, because the Air Force needs private-sector help in figuring out how to analyze the oceans of data the device can collect (5,000 hours of high-def video per day).
Either way, it’s important for the public to be aware of the kinds of technologies that are out there so that it can better decide how drones should be regulated.
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Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains
By Cindy Cohn and Trevor Timm | EFF | February 27, 2013
Yesterday, the Supreme Court sadly dismissed the ACLU’s case, Clapper v. Amnesty International, which challenged the FISA Amendments Act (FAA)—the unconstitutional law that allows the government to wiretap Americans communcating with people overseas. Under the FAA, the government can conduct this surveillance without naming individuals and without a traditional probable cause warrant, as the Fourth Amendment requires.
The court didn’t address the constitutionality of the FAA itself, but instead ruled that the plaintiffs—a group of lawyers, journalists, and human rights advocates who regularly communicate with likely “targets” of FAA wiretapping—couldn’t prove the surveillance was “certainly impending,” so therefore didn’t have the “standing” necessary to sue. In other words, since the Americans did not have definitive proof that they were being surveilled under the FAA—a fact the government nearly always keeps secret—they cannot challenge the constitutionality of the statute.
EFF’s Warrantless Wiretapping Case, Jewel v. NSA, Is Not Affected by Clapper
It’s shameful that the courts again have cut off another avenue for accountability regarding the NSA’s warrantless and unconstitutional surveillance activities. But as disappointing as the Clapper decision is, the good news is the decision likely won’t adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.
The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court’s decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications.”
Clapper v. Amnesty’s Catch-22
Nonetheless, the Supreme Court’s requirement in Clapper that a future harm must be “certainly impending” to allow a case to go forward is very troubling, especially in the context of cases involving secret surveillance.
As Justice Stephen Breyer’s dissent points out, future conduct can never be predict anything with 100% certainty, and if certainty was a requirement for standing, then virtually no cases would ever reach conclusion. Justice Breyer runs through dozens of cases where standing has been found for plaintiffs in situations where plaintiffs had a reasonable fear of harm, and in many of those cases, the plaintiffs were much less certain than the lawyers, human rights workers and journalist in Clapper.
Breyer summed absurdity of the “certainly impending” standard by saying, “One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”
This standard is especially problematic when the harm is illegal surveillance conducted via secret government programs. Unlike physical searches of the home, communications surveillance is by its nature hidden from the people affected, and national security surveillance is rarely made public or used in domestic criminal prosecutions. Thus, under the Supreme Court’s rule, regardless of whether its surveillance was legal or constitutional, the government can deny standing to a victim of illegal surveillance just by never revealing its illegal actions to the person affected. Essentially, one can’t challenge the government’s surveillance unless the government agrees.
Indeed, in arguing that its ruling does not mean that government surveillance under the FAA can never be reviewed by the courts, the Court could only point to situations in which the government intentionally revealed its surveillance.1
Allowing the Executive broad unfettered powers to “turn the Constitution on and off at will,” is exactly what the Supreme Court refused to do in Boumediene v. Bush, but what it appears to have allowed here.
It’s not even clear that the majority even understands the real scope of the FAA. In the opinion’s first sentence, Justice Alito refers to “individuals” that can be warrantlessly surveilled, but as we’ve explained many times, and the dissent notes, one of the most odious parts of the law is that it allows the government to get one court order for groups or categories of people—potentially thousands of people can be affected at a time.
The Shrinking Ranks of Warrantless Wiretapping Cases
This is the second ruling in the past year in which the government has convinced the court to dismiss challenges to the NSA warrantless wiretapping program on technical grounds, when there is ample evidence of wrongdoing. In 2012, the Ninth Circuit reluctantly dismissed the Al-Haramain case on “sovereign immunity” grounds despite a lower court ruling the government had violated the Fourth Amendment. The court reasoned that because of a glitch in the language of FISA statute, the plaintiffs had to sue individuals in the government in their personal capacities and couldn’t sue government agencies themselves or government officials in their official capacities.
We look forward to the district court in Jewel v. NSA determining that our case can move forward, and that the government can, once and for all, be held to account for the NSA’s unlawful and unconstitutional warrantless wiretapping program.
- 1. The court also noted that a provision of the FAA allows a service provider, presumably in a fit of patriotic fervor and a willingness to pay expensive attorneys for its customers, challenges the government on its own, in secret. Yet even under this provision, the victim of the surveillance is unable to seek judicial review.
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A Lesser “Grade” of Human
By Michael Hoffman | Revelation of the Method | January 3, 2024
Will the more than 100 Iranians killed by terrorist bombs today be mourned in the West as victims of terrorism? Certainly not. Allied doctrine has it that the killing of Israeli or American civilians is a crime of cosmic proportions, while shedding the blood of “enemy” women and children is perfectly acceptable; indeed commendable.
The West does not memorialize the hundreds of thousands of civilians bombed by the U.S. in Serbia, Iraq, Afghanistan and every major German city 1943-1945. America’s fire-bombing of the city of Tokyo by General Curtis LeMay in March 1945 was followed by Harry Truman’s atomic incineration of Hiroshima and Nagasaki in August of that year. Truman never had a moment of doubt or regret over the murder of more than a 100,000 Asian children, mothers and non-combatant boys and men. It was business as usual for the “noble” Allies during the “Good War.”
In the West human rights signifies passionate concern only for civilians designated as truly human: Israelis first, then Americans and British, followed by their satraps.
This inhumanity is the legacy of Talmudic ideology, beginning with tractate Sanhedrin 57a from 400 A.D., concerning liability for capital punishment: “If a Jew murders a gentile, he is exempt.”
This teaching of contempt was reiterated in the dogma of Chabad Lubavitch founder Rabbi Shneur Zalman in the 18th century. … continue
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