Is Anything Left of the US Constitution or Privacy Rights?
Vying for a Supreme Court appointment? US District Judge William H. Pauley III ruled that the NSA’s massive spying program is legal.
By Franklin Lamb | Fig Trees and Vineyards | December 28, 2013
The answer to this question is being pondered across America in light of two seemingly contradictory federal court decisions handed down this month from two separate courts, one in Washington, the other in New York.
Since the Bush Administration’s “war of terrorism” was launched, civil liberties advocates have voiced growing alarms about the erosion of Constitutional guarantees. Yet with the disclosures by whistle blower Edward Snowden, concerns about what protections Americans have remaining—protections from governmental intrusions into their privacy as well as home or office invasions by police forces—have rapidly gained new impetus. Because of Snowden’s leaks, legal challenges have been brought against the National Security Agency; without the leaks, no challenge could have been mounted.
Now all of a sudden two US Federal District Courts, with identical powers under the US Constitution, have reached seemingly opposite conclusions on the same legal issue, i.e. the right of the NSA to conduct “metadata” searches and store the information of scores of millions of unknowing Americans. This means, given that appeals have been filed in both cases, that the issue is likely going to be decided by the US Supreme Court.
Civil libertarians were encouraged earlier this month when Federal Judge Richard Leon of the United States District Court for the District of Columbia ruled on December 16 that the NSA’s bulk collection of cell phone data of Americans (everyone you called, when you called them, and where you were when you called them) violates the Fourth Amendment to the Constitution. Calling the data gathering “Orwellian,” Judge Leon reasoned that we now use our smartphones for a wide variety of personal activities in which we have the expectation of privacy, that probably we have more expectation of privacy from cell phones now than we did, say, from a pay phone in the 1980s. And he also noted, crucially, that cell phones today make it possible to determine the caller’s GPS location. “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government,” Leon wrote.
US District Judge Richard Leon
The judge then focused on whether the massive NSA surveillance violates the Fourth Amendment, which guarantees, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
He writes:
“The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes and investigates that data without prior judicial approval of the investigative targets. If they do – and a Fourth Amendment search has thus occurred– then the next step of the analysis will be to determine whether such a search is ‘reasonable.’”
Judge Leon found that the NSA, when demanding citizens’ telephone metadata, is conducting a search, and that it is most likely an unreasonable search under the Fourth Amendment, given there is no specific suspicion of wrongdoing by any individual whose records are demanded.
In his ruling he granted the request for an injunction against the collection of the plaintiffs’ phone data, ordering the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion what he termed as the “significant national security interests at stake in this case and the novelty of the constitutional issues.”
But no sooner had Judge Leon’s decision been published, bringing hope to civil libertarians, than US District Judge William H. Pauley III in New York issued what looks almost like a diametrically antithetical ruling, making for the latest in a contentious debate that has also seen a presidential commission weighing in on certain aspects of NSA spying as well. On December 27, Pauley ruled that the NSA’s collection of vast oceans of data on private phone calls is legal—meaning that in a period of just 11 days the two judges, along with the presidential panel, had reached “the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis,” as the New York Times reported it.
The case in New York was brought by the American Civil Liberties Union, which said it would appeal.
Judges Leon and Pauley have starkly differing understandings on how valuable the NSA program is. Echoing arguments made recently by former FBI director Robert S. Mueller III and other senior government officials, Pauley, whose courtroom is not far from where the World Trade Center towers stood, said he believed the program might have caught the 9/11 hijackers had it been in place at the time. “While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful,” Pauley wrote. “This court finds it is.”
The finding stands in stark contrast to Leon’s ruling in Washington:
“The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” Judge Leon wrote.
What these conflicting decisions leave us in is a profound quandary with respect to the issues raised by Edward Snowden. In a Christmas address that was carried by British Channel 4 and widely aired on the Internet, the former NSA contractor expressed the legitimate concern of all people who value individual liberty and privacy. A child born today, he said, might “never know what it means to have a private moment to themselves, an unrecorded, unanalyzed thought.” He added that people are essentially walking around with a tracking device in their pockets, noting that this disappearance of privacy is important because privacy “is what allows us to determine who we are and who we want to be.”
ACLU calls for Massachusetts moratorium on controversial license plate readers
ACLU – 12/14/2013
BOSTON — The ACLU of Massachusetts calls for a moratorium on the use of controversial and unregulated license plate scanner technology in all Massachusetts police departments, following a Boston Globe exposé of problems in the Boston Police Department’s program.
The story, published in today’s Globe, shows that contrary to officials’ claims about why departments need the technology, police routinely do not respond to live ‘hits’ alerting them to the location of stolen cars. This suggests that the program is, as the ACLU feared, largely oriented towards compiling vast databases enabling the warrantless tracking of millions of innocent motorists.
In response to these alarming findings, the Boston Police Department announced it would suspend the program, at least until proper oversight and procedures are put into place.
“The Globe’s investigation into the Boston Police Department’s license plate reader program, based largely on a series of public records requests initiated nearly a year ago, confirms that police departments need outside oversight and guidance in order to responsibly use this powerful technology. We applaud the Boston police decision to suspend the program,” said Kade Crockford, director of the Technology for Liberty project at the ACLU of Massachusetts. “In light of these disturbing revelations, no police department in the state should continue to use this technology until the legislature passes the License Plate Privacy Act. We need uniform statewide rules for departments’ use of plate readers.”
Currently the Massachusetts State Police and more than 50 cities and towns deploy license plate scanners, which snap photographs of each license plate they encounter, noting the time, date and location, and run the plate numbers against “hot lists” to identify stolen cars, outstanding warrants and other violations. Today, no license plate reader program in the state is subject to outside regulation.
“The License Plate Privacy Act will establish accountability and public transparency requirements to ensure that the kinds of abuses the Globe uncovered at the Boston Police Department are not happening in other cities and towns,” said Crockford. “Technologies that target ordinary Americans going about their everyday lives create tremendous opportunity for abuse, without keeping us safe. We must ensure that the law keeps pace with these new technologies.”
The License Plate Privacy Act allows departments to use license plate readers to identify cars associated with criminal suspects or crimes, while preventing the government from amassing databases containing the historical travel records of millions of innocent people.
“The Globe’s investigation makes crystal clear that departments cannot police their own use of this complex and powerful tool,” said Crockford. “The legislature must step in to provide some basic rules, as well as checks and balances to make sure license plate readers aren’t used for warrantless tracking of innocent drivers. The Joint Transportation Committee should recommend swift approval of the License Plate Privacy Act, the legislature should pass it, and the Governor should sign it into law.”
Advanced surveillance tools can work to promote public safety while simultaneously respecting the privacy and liberty interests that help our Commonwealth thrive, but in order for that to happen the law needs to catch up with the technology. The License Plate Privacy Act strikes the right balance. Police departments statewide should follow Boston’s lead and immediately halt their use of the technology until the legislature acts.
For more on the License Plate Privacy Act, go to:
https://aclum.org/privacy_agenda#LPA
To take action on this issue, go to:
https://ssl.capwiz.com/aclu/ma/issues/alert/?alertid=63008551&type=ML
For more information about automatic license plate readers, go to:
https://www.aclu.org/alpr
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Mass Location Tracking: It’s Not Just For the NSA
By Catherine Crump | ACLU | December 12, 2013
Thanks to Edward Snowden we now understand that the NSA runs many dragnet surveillance programs, some of which target Americans. But a story today from Washington, D.C. public radio station WAMU is a reminder that dragnet surveillance is not just a tool of the NSA—the local police use mass surveillance as well.
DC’s Metropolitan Police Department uses cameras to scan vehicle license plates in huge numbers and saves all the data for two years, even though only a tiny fraction—0.01 %—turn out to be associated with any possible wrongdoing.
In 2012, the police in Washington scanned over 204 million license plates. But only 22,655 were associated with some possible wrongdoing (what the chart refers to as “hits”). And a hit isn’t evidence of guilt. It’s evidence your plate was in a database. And your plate may well be in a database because, as we’ve seen in other areas of the country (check out our report on the use of plate readers nationwide), these databases can include people who violated vehicle emissions programs or are driving on suspended or revoked licenses. These people shouldn’t be on the road, but they are also not major offenders.
The key point is this: 99.9 % of the data pertains to people not suspected of wrongdoing. Why should innocent drivers have their movements stored for two full years?
The new report echoes data first unearthed by the ACLU’s local office and revealed two years ago in testimony to local legislators.
This brings us back to the NSA program. What do the NSA and DC Metropolitan Police Department have in common? As we have discussed before, neither appears to be restrained by any sense of proportionality. The data collection is vast, and the gain is either uncertain or negligible. In the NSA’s case, it is storing records about every single phone call each of us makes and keeping it in a database for 5 years, even in the absence of any credible evidence that mass collection is needed to make us safer. (The MPD refused to comment on the plate reader program.)
When it comes to reforming surveillance, it is programs like these that are particularly good targets. While some may be willing to trade privacy for security, here we appear to be giving privacy away and the government either can’t or won’t make the case that we’re getting anything in exchange.
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Supreme Court blocks challenge to NSA phone tracking
RT | November 18, 2013
The Supreme Court announced Monday morning that it would not be considering at this time a complaint filed months earlier that challenged the legality of the National Security Agency’s dragnet telephone surveillance program.
The high court issued a notice early Monday without comment acknowledging that it would not be weighing in on a matter introduced this past June by a privacy watchdog group after NSA leaker Edward Snowden revealed evidence showing that the United States intelligence agency was collecting metadata pertaining to the phone calls of millions of American customers of the telecommunications company Verizon on a regular basis.
That disclosure — the first of many NSA documents leaked by Mr. Snowden — prompted the Washington, DC-based Electronic Privacy Information Center, or EPIC, to ask the Supreme Court to consider taking action that would end the collection of phone records on a major scale.
When EPIC filed their petition in June, they wrote, “We believe that the NSA’s collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974 and the Foreign Intelligence Surveillance Act of 1978 as amended.”
“We ask the NSA to immediately suspend collection of solely domestic communications pending the competition of a public rulemaking as required by law. We intend to renew our request each week until we receive your response,” EPIC said.
Five months later, though, the Supreme Court said this week that it would not be hearing EPIC’s plea. A document began circulating early Monday in which the high court listed the petition filed by the privacy advocates as denied.
With other cases still pending, however, alternative routes may eventually lead to reform of the NSA’s habits on some level. Lower courts are still in the midst of deciding what action they will take with regards to similar lawsuits filed by other groups in response to the Snowden leaks and the revelations they made possible. The American Civil Liberties Union, the Electronic Frontier Foundation and conservative legal activist Larry Klayman have filed separate civil lawsuits in various US District Courts challenging the NSA’s program, all of which are still pending.
Cindy Cohn, the legal director of the EFF, told the Washington Post only weeks after the first Snowden leak appeared that the disclosures had been a “tremendous boon” to other matters being litigated, and pointed to no fewer than five previously-filed complaints challenging various government-led surveillance programs.
“Now that this secret surveillance program has been disclosed, and now that Congressional leaders and legal scholars agree it is unlawful, we have a chance for the Supreme Court to weigh in,” EPIC lead counsel Alan Butler told The Verge on Monday.
Related article
- Supreme Court blocks challenge to NSA phone tracking (theverge.com)
Federal Appeals Court Rules Warrant Required for GPS Tracking
By Nathan Freed Wessler | ACLU | October 23, 2013
Today the Third Circuit Court of Appeals ruled that law enforcement agents must obtain a warrant based on probable cause to attach a GPS device to a car and track its movements. The case, United States v. Katzin, is the first in which a federal appeals court has explicitly held that a warrant is required for GPS tracking by police. The ACLU submitted an amicus brief in the case (joined by the ACLU of Pennsylvania, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers) and presented oral argument to the court in March.
In this case, police suspected three brothers, Harry, Mark, and Michael Katzin, of robbing several pharmacies. Without getting a warrant from a judge, FBI agents attached a GPS tracking device to Harry Katzin’s car in order to follow its movements. The government used the GPS device to track the Katzins as they drove to and from another pharmacy, and arrested them as they drove away. Before trial, the Katzins argued that police had violated their Fourth Amendment rights by using the GPS tracker without a warrant, and the district court agreed. Today’s ruling affirms that decision.
Last year, in United States v. Jones, the Supreme Court unanimously held that attaching a GPS tracker to a car to follow its movements is a search under the Fourth Amendment. The Court did not decide whether police need a warrant to conduct such a search, however, and the government argued in this case that an exception to the usual requirement of a warrant should apply. The Third Circuit rejected the government’s arguments, explaining that GPS tracking is a “vastly broader endeavor” than the kinds of limited searches that courts have allowed without warrants. In particular, the court held that the “automobile exception” to the warrant requirement does not apply to GPS tracking. The exception is designed to permit warrantless searches of cars to reveal contraband before the cars can drive away. But, as the court explained, that narrow exception does not “permit [police] to leave behind an ever-watchful electronic sentinel in order to collect future evidence” without judicial oversight.
The court also rejected a second argument made by the government: that the so-called “good faith” exception should permit use of evidence derived from the GPS tracking, even if it violated the Fourth Amendment. Because the GPS tracker was attached to the Katzins’ car before the Supreme Court decided Jones, and before the Third Circuit had addressed the issue, the government argued that FBI agents couldn’t have known that using a GPS device might raise questions under the Fourth Amendment, and therefore they acted in good faith by choosing not to seek a warrant. The court explained that this does not excuse police from the requirement of getting a warrant:
Where an officer decides to take the Fourth Amendment inquiry into his own hands, rather than to seek a warrant from a neutral magistrate — particularly where the law is as far from settled as it was in this case — he acts in a constitutionally reckless fashion. Here, law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice. . . . Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations.
Today’s opinion offers a full-throated defense of the Fourth Amendment, and installs an important safeguard against unjustified government surveillance. As courts around the country consider challenges to warrantless location tracking by police (whether using GPS devices or cell phone signals), they would do well to follow the Third Circuit’s lead.
When Will the Government Officially Correct the False Claims It Made to the Supreme Court About NSA Surveillance?
By Trevor Timm | EFF | October 22, 2013
We’ve documented again and again how the government has refused to tell the truth about NSA surveillance to news organizations, Congress, and the American public. Now it seems clear we can add the Supreme Court to that list.
First, it’s important to remember that just months before Edward Snowden became a household name, the ACLU was before the Supreme Court challenging the FISA Amendments Act—a key pillar designed to justify much of the NSA’s surveillance. The ACLU argued that since their clients—journalists, advocates, and lawyers—were the prime candidates to be subject to this surveillance, the clients should be able to challenge the law as unconstitutional.
Unfortunately, the government successfully convinced the Court that the case should be thrown out on procedural grounds. The Court ruled the ACLU’s clients didn’t have “standing.” Essentially, because they had no definitive proof they were being spied on, so couldn’t challenge the law.
At the time, many thought this reasoning was absurd, including four dissenting Supreme Court Justices. Given the law’s incredibly broad reach, of course surveillance was occurring. “Perhaps, despite pouring rain, the streets will remain dry,” quipped Justice Breyer.
So in order to convince the Supreme Court to throw out the ACLU’s challenge, the government smartly argued someone could have standing to challenge the law. Otherwise, it may have seemed absurd to at least one more Justice, and the case might have gone the other way.
Solicitor General Donald Verrilli told the Court any defendant charged with a crime would be officially notified if they were subject to NSA surveillance and then someone could challenge it—an actual target. Prosecutors, according to the government, just hadn’t used FISA evidence yet in any court case.
Turned out, that wasn’t true.
As the New York Times reported last week, “Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.”
In other words, the argument the Solicitor General used to convince the Supreme Court to dismiss a challenge to the FISA Amendments Act was false, and the Solicitor General deceived the Supreme Court, though perhaps not wittingly. When Verrilli confronted the Justice Department’s national security lawyers who briefed him for his argument, they explained away this false statement as “a misunderstanding,” according to the New York Times.
The Solicitor General has apparently convinced the Justice Department to change its policy and they now claim they will start notifying defendants. If the Justice Department follows through, this move should have implications across the board and will be a welcome shift.
Remember, just a few weeks ago Reuters reported that the Drug Enforcement Administration (DEA) was receiving tips from the NSA, distributing them to local law enforcement, and then covering them up by then obtaining the same evidence under different pretenses. As we explained at the time, this not only violates the Fourth Amendment, but the Fifth and Sixth Amendments as well, which guarantee defendants a meaningful opportunity to present a defense and challenge the government’s case.
There’s also the enormous “Hemisphere” phone surveillance program, first revealed by the New York Times in August, which the DEA carries out in partnership with the AT&T. EFF just filed an amicus brief in a San Francisco case that looks suspiciously like Hemisphere surveillance was going on as well.
It’s too early to tell if the Justice Department is going to follow through on its promise to tell the truth about spying in criminal cases. Thankfully, the ACLU has sued under the Freedom of Information Act to find out the Justice Department official policies on notifying defendants of NSA surveillance.
This is only a start. Informing criminal defendants of warrantless wiretaps only exposes illegal spying on a small few, and the Justice Department has made no promises to inform the millions of ordinary American’s caught up in the NSA dragnet. But it’s an important step forward, and could lead to a court to rule on the legality of the program.
ACLU deputy legal director Jameel Jaffer has also called on the Solicitor General to file a formal acknowledgement with the Court that the government’s policy was misrepresented to the justices during arguments. As Jaffer explains, there is ample precedent for the government to do so in situations similar to this.
It’s important for the Court to know that the government has not been honest with them, as the Court considers other representations about secret programs. Unfortunately, this is not the only time the government has provided false and misleading information to a court.
The culture of misinformation around the NSA has to stop. EFF also calls on the Solicitor General to formally acknowledge to the Court its misrepresentations and promptly tell every defendant that was subject to NSA surveillance so they can challenge the unconstitutional laws behind it.
Related article
- Obama fights SCOTUS review of NSA (politico.com)
Muslim Fights Placement on Watch List
By NICK DIVITO | Courthouse News | October 3, 2013
MANHATTAN – A Muslim man says he has been unable to visit his ailing mother for over two years because he refused to spy for the FBI and is now on the no-fly list.
Muhammad Tanvir says he is not the only one who the FBI unlawfully placed on the no-fly list “in retaliation for their refusal to work as informants against their communities and submit to questioning.”
The Queens man says his predicament has left him unable to visit his ailing mother in Pakistan for over two years, and that it has burdened his practice of Islam.
He notes that he is a lawful permanent resident employed at a 99-cent store in the Bronx who has “never been convicted of a crime nor does he pose any threat to aviation safety.”
The FBI declined to comment.
Though the no-fly list is supposed to represent a list of suspected terrorists, the American Civil Liberties Union calls it “a draconian tool to coerce Americans into spying on their communities.” In this case, Tanvir is represented by Shayana Kadidal with the Center for Constitutional Rights.
After refusing FBI agents’ request that he serve as an informant in his predominantly Muslim community and landing on the no-fly list, Tanvir says he reached out to the FBI to clear things up. Instead of helping, FBI agents offered to take him off the list in exchange for information.
Tanvir, who has lived in the United States since 2002, again refused.
“Mr. Tanvir has been prevented from flying despite the fact that he does not present any threat to aviation security,” the lawsuit states. “Instead, defendants sought to exploit the draconian burden posed by the No Fly List – including the inability to travel for work, or to visit family overseas – in order to coerce him into serving the FBI as a spy with American Muslim communities and places of worship.”
Named as defendants are FBI Director James Comey; Terrorist Screening Center Director Christopher Piehota; Acting Secretary of Homeland Security Rand Beers; and Transportation Security Administration Administrator John Pistole.
The FBI agencies are responsible maintaining the Terrorist Screening Database, which includes the no-fly list.
Tanvir wants the court to declare as unconstitutional the FBI’s alleged practice of placing people on the no-fly list for not cooperating, then using an offer to remove them as a bribe for information.
He also wants off the list, along with damages.
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NSA, no way! Anti-spying sentiments on the rise amid steady stream of disclosures
RT | September 11, 2013
The National Security Agency isn’t making many friends, apparently: a new poll published this week suggests that a majority of Americans continue to have complaints with the NSA’s surveillance practices amid a myriad of recent disclosures.
According to the results of survey released this week by the Associated Press and the NORC Center for Public Affairs Research, anti-NSA sentiment remains rampant in the United States more than three months after former intelligence contractor Edward Snowden first began disclosing top-secret documents exposing the inner-workings of a vast surveillance apparatus operated by America’s premier spy agency. Meanwhile, concerns regarding those practices are growing amid members of Congress and even independent coalitions.
Polling conducted by the AP and NORC last month and released on Tuesday suggest that 56 percent of Americans surveyed oppose the NSA’s collection of telephone records, and 54 percent said they were against the practices that put Internet metadata into the hands of federal investigators.
A confused poll earlier this year in July by the PEW Research Center found that 44 percent of Americans disapproved of the NSA program, with half of the country not opposing the surveillance methods.
Now only 34 percent — or roughly one-third of those polled — say they are okay with the dragnet collection of metadata, or raw information including information on the sender and recipient, time and location pertaining to emails and phone calls. Additionally, 53 percent of Americans polled from a group of 1,008 adults say the federal government is doing a good job of ensuring freedom, a drop in seven percentage points since 2011. That earlier study concluded that 40 percent of Americans thought the government was doing a good job of protecting privacy, and today that number is down to 34 percent.
The AP poll also concluded that an overwhelming 71 percent of those asked opposed US officials eavesdropping on calls without warrant, and 62 percent said they were against the monitoring of email content.
Results from the latest poll were published on Tuesday, one day before the UK’s Guardian newspaper published the latest top-secret document in a series of classified leaks attributed to Snowden since early June. On Wednesday morning, the Guardian published a NSA memo from 2009 in which it’s revealed how US intelligence officials have shared raw data collected from American persons with Israeli counterparts without domestic agents even analyzing that information before it changes hands.
Commenting to the AP, Trevor Timm of the Electronic Frontier Foundation suggested the recent NSA disclosures undoubtedly have influenced the public’s perception of the US intelligence community and the way it conducts itself.
“For the first time, the public is able to see what’s going on behind closed doors and it’s changing minds,” Timm told the AP.
The EFF, along with the American Civil Liberties Union and more than two dozen other entities, are named as plaintiffs in a collection of lawsuits challenging the Obama administration’s surveillance programs. Attorneys for the EFF are representing plaintiffs in the matter of First Unitarian Church of Los Angeles v. NSA, which grew in size this week when five new organizations signed on to sue the White House. The EFF announced on Tuesday this week that Acorn Active Media, the Charity and Security Network, the National Lawyers Guild, Patient Privacy Rights and The Shalom Center have all signed on to the suit, which attorneys say challenges the government’s surveillance alleged abuse of Section 215 of the Patriot Act to collect bulk telephone metadata — an activity first disclosed on June 5 after Snowden leaked documents to the Guardian and Washington Post.
“The First Amendment guarantees the freedom to associate and express political views as a group,” EFF legal director Cindy Cohn said in a statement. “The NSA undermines that right when it collects, without any particular target, the phone records of innocent Americans and the organizations in which they participate. In order to advocate effectively, these organizations must have the ability to protect the privacy of their employees and members.”
Also signing on in support of NSA reform is US Rep. Darrell Issa (R-California), who only this week announced he’d be seeking changes in the way America conducts surveillance operations. Issa previously voted against a measure proposed by colleague Rep. Justin Amash (R-Michigan) which would have aimed to thwart the NSA’s now-infamous practices, but this week wrote a letter to Congress saying lawmakers on Capitol Hill should debate those policies once again as leaks continue to raise concerns.
“Now that it has been publicly acknowledged that the communications of Americans were included in the NSA’s data collection program, likely violating their Fourth Amendment rights, Congress must respond in a manner that both increases the transparency of the agency’s programs and reinforces the constitutional protections of our citizens,” Issa wrote in a letter first published by Politico.
“We’re very pleased that Chairman Issa supports our amendment,” Amash spokesman Will Adams told US News & World Report. “If the Amash amendment does get taken up by the House and it does pass this fall, it will put pressure on the committees to start passing comprehensive reforms.”
The Amash Amendment would have barred the NSA from using the PATRIOT Act provision at the center of First Unitarian Church of Los Angeles v. NSA to collect the phone records of all Americans. It was defeated in the House last month by a 12 vote margin.
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Victory! Federal Court Recognizes Constitutional Rights of Americans on the No-Fly List
By Nusrat Choudhury | ACLU | August 29, 2013
A federal court took a critically important step late yesterday towards placing a check on the government’s secretive No-Fly List. In a 38-page ruling in Latif v. Holder, the ACLU’s challenge to the No-Fly List, U.S. District Court Judge Anna Brown recognized that the Constitution applies when the government bans Americans from the skies. She also asked for more information about the current process for getting off the list, to inform her decision on whether that procedure violates the Fifth Amendment guarantee of due process.
We represent 13 Americans, including four military veterans, who are blacklisted from flying. At oral argument in June on motions for partial summary judgment, we asked the court to find that the government violated our clients’ Fifth Amendment right to due process by barring them from flying over U.S. airspace – and smearing them as suspected terrorists – without giving them any after-the-fact explanation or a hearing at which to clear their names.
The court’s opinion recognizes – for the first time – that inclusion on the No-Fly List is a draconian sanction that severely impacts peoples’ constitutionally-protected liberties. It rejected the government’s argument that No-Fly list placement was merely a restriction on the most “convenient” means of international travel.
Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation.
According to the court, placement on the No-Fly List is like the revocation of a passport because both actions severely burden the right to international travel and give rise to a constitutional right to procedural due process:
Here it is undisputed that inclusion on the No-Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States air space. Thus, Plaintiffs have shown their placement on the No-Fly List has in the past and will in the future severely restrict Plaintiffs’ ability to travel internationally. Moreover, the realistic implications of being on the No-Fly List are potentially far-reaching. For example, TSC [the Terrorist Screening Center] shares watchlist information with 22 foreign governments and United States Customs and Boarder [sic] Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security, which can result in further interference with an individual’s ability to travel as evidenced by some Plaintiffs’ experiences as they attempted to travel abroad by boat and land and were either turned away or completed their journey only after an extraordinary amount of time, expense, and difficulty. Accordingly, the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list.
The court also found that the government’s inclusion of our clients on the No-Fly List smeared them as suspected terrorists and altered their ability to lawfully board planes, resulting in injury to another constitutionally-protected right: freedom from reputational harm.
The importance of these rulings is clear. Because inclusion on the No-Fly List harms our clients’ liberty interests in travel and reputation, due process requires the government to provide them an explanation and a hearing to correct the mistakes that led to their inclusion. But under the government’s “Glomar” policy, it refuses to provide any information confirming or denying that our clients are on the list, let alone an after-the-fact explanation and hearing.
The court has asked the ACLU and the government for more information about the No-Fly List redress procedure to help it decide the ultimate question of whether that system violates the Fifth Amendment right to due process. We are confident the court will recognize that the government’s “Glomar” policy of refusing even to confirm or deny our clients’ No-Fly List status (much less actually providing the reasons for their inclusion in the list) is fundamentally unfair and unconstitutional.
DEA Conceals Reliance on Surveillance Conducted by Intelligence Agencies
ACLU | August 5, 2013
NEW YORK – The U.S. Drug Enforcement Administration is using secret surveillance tactics – including wiretaps and examining telephone records – to make arrests while concealing the source of the evidence from judges, prosecutors, and defense attorneys, according to a story published today by Reuters. In cases where this intelligence is used to make an arrest, the DEA trains law enforcement to recreate the investigative trail in order to conceal the origins of the evidence.
“The DEA is violating our fundamental right to a fair trial,” said Ezekiel Edwards, director of the American Civil Liberties Union’s Criminal Law Reform Project. “When someone is accused of a crime, the Constitution guarantees the right to examine the government’s evidence, including its sources, and confront the witnesses against them. Our due process rights are at risk when our federal government hides and distorts the sources of evidence used as the basis for arrests and prosecutions.”
“When law enforcement agents and prosecutors conceal the role of intelligence surveillance in criminal investigations, they violate the constitutional rights of the accused and insulate controversial intelligence programs from judicial review,” said Jameel Jaffer, ACLU deputy legal director. “Effectively, these intelligence programs are placed beyond the reach of the Constitution, where they develop and expand without any court ever weighing in on their lawfulness. This is inappropriate, dangerous, and contrary to the rule of law.”
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Federal court approves warrantless tracking of cell phone users
RT | July 31, 2013
A ruling this week in a United States appeals court means officers of the law can legally and physically track down suspects based off of cell phone data without ever obtaining a warrant.
A 2-1 decision from the United States Court of Appeals for the Fifth Circuit on Tuesday means law enforcement needn’t prove probable cause when asking a telecom company for location data that could be used to pinpoint suspected criminals.
The verdict overturns a ruling made in 2011 by a magistrate judge from Houston, Texas who said federal authorities weren’t able to compel telecoms for 60 days’ worth of cell phone records without a warrant.
Following that ruling from US District Judge Lynn Hughes, the federal government filed an appeal asking the Fifth Circuit to step-in. On Tuesday, justices there overturned Hughes’ decision and said cell phone companies and their customers had no Fourth Amendment protected right to refute the government’s request for information.
A cell subscriber, said the appeals court, “like a telephone user, understands that his cellphone must send a signal to a nearby cell tower in order to wirelessly connect his call.” That data, the court concluded, is thus “clearly a business record” and can be collected by investigators bypassing what would otherwise require a warrant.
“We understand the cell phone users may reasonably want their location information to remain private,” wrote the court. “But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records… or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.”
Had the court ruled otherwise, federal investigators could be told they must show a judge evidence of probable cause to obtain a warrant for location data. Instead, however, the appeals court agreed that only a substantially easier to acquire court order could be used to compel telecoms for that data.
Unlike a search warrant, a court order in such a case only requires authorities to argue there are reasonable grounds that the information is relevant to an investigation.
Privacy advocates attacked Tuesday’s ruling, including George Washington University law professor, who filed an amicus brief in the case opposing the side the appeals court took.
“The opinion is clear that the government can access cell site records without Fourth Amendment oversight,” Kerr told the New York Times this week.
“This decision is a big deal,” Catherine Crump of the American Civil Liberties Union added to the Times. “It’s a big deal and a big blow to Americans’ privacy rights.”
But while the appeals verdict impacts how federal investigations will be conducted for now, recent legislation adopted in two US states have taken the first steps towards installing local laws that limit the ability to collect location data. Both Montana and New Jersey approved legislation in June and July, respectively, saying a search warrant is required by state investigators in order to collect cell phone location data.
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How GMO seeds and “RoundUp” are driving US policy in Venezuela
By Whitney Webb | MintPress News | May 6, 2019
CARACAS, VENEZUELA — As the political crisis in Venezuela has unfolded, much has been said about the Trump administration’s clear interest in the privatization and exploitation of Venezuela’s oil reserves, the largest in the world, by American oil giants like Chevron and ExxonMobil.
Yet the influence of another notorious American company, Monsanto — now a subsidiary of Bayer — has gone largely unmentioned.
While numerous other Latin American nations have become a “free for all” for the biotech company and its affiliates, Venezuela has been one of the few countries to fight Monsanto and other international agrochemical giants and win. However, since that victory — which was won under Chavista rule — the U.S.-backed Venezuelan opposition has been working to undo it. … continue
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