Sep 162014
 

In addition to the amicus brief in Smith v. Obama, a few weeks earlier I had filed another one on behalf of the National Association of Criminal Defense Lawyers in Jewel v. NSA, another case challenging the NSA’s telecommunications surveillance.

Unlike Smith v. Obama and other similar cases, which argued that even collecting “just” telephonic metadata violated the Fourth Amendment, in Jewel the surveillance involved the collection of communications in their entirety. It didn’t just catch the identifying characteristics of these communications; it captured their entire substance.

The Electronic Frontier Foundation originally filed this case in 2008 following the revelations of whistleblower Mark Klein, a former tech at AT&T, that a switch installed in a secret room at AT&T’s facilities were diverting copies all the Internet traffic passing through their systems to the government. This, the EFF argued in a motion for summary judgment, amounted to the kind of “search and seizure” barred by the Fourth Amendment without a warrant.

Like in Smith v. Obama, this surveillance necessarily implicates the Sixth Amendment in how it violates the privacy of communications between lawyers and their clients. But because the surveillance involves the collection of the content of these communications it also inherently violates the Fifth Amendment right against self-incrimination as well. Continue reading »

Sep 152014
 

Last week Durie Tangri and I filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in the appeal of Smith v. Obama. Smith v. Obama is one of the many lawsuits being brought against the government following revelations of how the NSA has been spying on Americans’ communications. Like several of the others, including First Unitarian Church of Los Angeles v. NSA and Klayman v. Obama, this case is about the government’s wholesale collection of telephonic metadata – or, in other words, information reflecting whom people called, when, and for how long (among other details).

In the Klayman case, which is now on appeal at the D.C. Circuit Court of Appeals, the district court judge found that this wholesale, warrantless, collection of people’s call records indeed violated the Fourth Amendment. In Smith v. Obama, however, the district court had reached the opposite conclusion. Despite finding the reasoning in Klayman persuasive, the district court judge here felt bound to follow the precedent set forth in a 1979 Supreme Court case called Smith v. Maryland.

In that case the Supreme Court held that it did not violate the Fourth Amendment for the government to acquire records of people’s calls. The government only violates the Fourth Amendment when it invades a “reasonable expectation of privacy society recognizes as reasonable” without a warrant. But how could there be an expectation of privacy in the phone number a person dialed, the Supreme Court wondered. How could anyone claim the information was private, if it had been voluntarily shared with the phone company? Deciding that it could not be considered private, the court therefore found that no expectation of privacy was being invaded by the government’s collection of this information, which therefore meant that the collection could not violate the Fourth Amendment.

The problem is, in the Smith v. Maryland case the Supreme Court was contemplating the effect on the Fourth Amendment raised by the government acquiring only (1) specific call information (2) from a specific time period (3) belonging only to a specific individual (4) already suspected of a crime. It was not considering how the sort of surveillance at issue in this case implicated the Fourth Amendment, where the government is engaging in the bulk capturing of (1) all information relating to all calls (2) made during an open-ended time period (3) for all people, including (4) those who may not have been suspected of any wrongdoing prior to the collection of these call records. What Smith is arguing on appeal is that the circumstances here are sufficiently different from those in Smith v. Maryland such that the older case should not serve as a barrier to finding the government’s warrantless bulk collection of these phone records violates the Fourth Amendment.

In particular, unlike in Smith v. Maryland, in this case we are dealing with aggregated metadata, and as even the current incarnation of the Supreme Court has noted, the consequences of the government capturing aggregated metadata are much more harmful to the civil liberties of the people whose data is captured than the Supreme Court contemplated back in 1979. In U.S. v. Jones, a Fourth Amendment decision issued in 2012, Justice Sotomayor observed that aggregated metadata “generates a precise, comprehensive record” of people’s habits, which in turn “reflects a wealth of detail about [their] familial, political, professional, religious, and sexual associations.” One of the reasons we have the Fourth Amendment is to ensure that these associations are not chilled by the government being able to freely spy on people’s private affairs. But when this form of warrantless surveillance is allowed to take place, they necessarily will be.

While it’s bad enough that any associations are chilled, in certain instances that chilling implicates other Constitutional rights. The amicus brief by the Reporters Committee for Freedom of the Press addressed how the First Amendment is undermined when journalists can no longer be approached by anonymous sources because, if the government can easily discover evidence of their conversations, the sources effectively have no anonymity and will be too afraid to reach out. Similarly, the brief I wrote discusses the impact on the Sixth Amendment right to counsel when another type of relationship is undermined by this surveillance: that between lawyers and their clients. Continue reading »

Quicklinks 2/25/12

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Feb 252012
 

Another dose of quicklinks:

Quicklinks 1/28/2012

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Jan 282012
 

Some items from the past week:

Jan 062012
 

This post on F-secure raises the specter of German authorities tracking suspects through clandestine use of the SMS system. (The post references an article on Heise Online that translates to “Customs, Federal Police and Protection of the Constitution in 2010 sent more than 440,000 ‘silent SMS.'”

So what exactly does this mean?

Well, basically, various German law enforcement agencies have been “pinging” mobile phones. Such pings only reply whether or not the targeted resource is online or not, just like an IP network ping from a computer would.

But then after making their pings, the agencies have been requesting network logs from mobile network operators. The logs don’t reveal information from the mobile phones themselves, but they can be used to locate the cell towers through which the pings traveled. And thus, can be used to track the mobile targeted.

Quicklinks 12/31/11

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Dec 312011
 

From this past week:

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Dec 282011
 

This article in the Lancaster Telegraph suggests the practice may have ended in 2007, but between 2000 and then the Burnley Council used the Regulation of Investigatory Powers Act (RIPA) of 2000 to spy on its own staff.

The regulation was brought in in 2000 and allowed council bosses to carry out surveillance on residents they suspected of committing crimes.

The vast majority of uses of the act relate to offences such as benefit fraud, fly-tipping and anti-social behaviour.

A Burnley Council spokesman said: “The vast majority of cases where we have used RIPA authorisations were to tackle noise nuisance, anti-social behaviour, fly-tipping and benefit fraud – all things we know our residents want us to sort out.

Continue reading »

Dec 242011
 

Per this article in the Wall Street Journal, Huawei Technologies Co. is in talks to sell video surveillance technologies to the Belarus government.

Huawei confirmed last week that it had signed a memorandum of understanding with the Belarus Ministry of Industry “to pursue discussions that could lead to agreements on a number of projects related to telecommunications.” The Chinese company says specific projects are unconfirmed and remain subject to formal contract negotiations.

The government of Belarus has been more specific about the talks. Huawei’s subsidiary in Belarus has been discussing the installation of a “video surveillance system with intelligent analysis,” which Huawei would set up in cooperation with a Minsk-based tech company, Belarus’s Ministry of Industry said in September.

It said the surveillance system “can be used for monitoring and protecting town centers, industrial plants or power and transport facilities, as well as important strategic assets, such as railway stations, airports or the state border of Belarus.” The ministry didn’t respond to a request to comment further.

Continue reading »

Dec 242011
 

From EPIC.org:

EPIC has filed a Freedom of information Act lawsuit against the Department of Homeland Security to force disclosure of the details of the agency’s social network monitoring program. In news reports and a Federal Register notice, the DHS has stated that it will routinely monitor the public postings of users on Twitter and Facebook. The agency plans to create fictitious user accounts and scan posts of users for key terms. User data will be stored for five years and shared with other government agencies.The legal authority for the DHS program remains unclear. EPIC filed the lawsuit after the DHS failed to reply to an April 2011 FOIA request. For more information, see EPIC: Social Networking Privacy.

(h/t Pogo Was Right)

Dec 122011
 

This article is a little sparse on details, but one bit of it is interesting enough to note. EU foreign relations chief Ashton has come out with a paper calling for improvements that can be made in the enforcement of human rights in the EU generally, but of interest here is the recognition for “digital diplomacy.”

With Arab Spring revolutions marked by their use of Twitter, YouTube and Facebook, she says: “The EU could mobilise key delegations to use social media for digital diplomacy.” She suggests holding “live webcasts” so that human rights activists can talk directly to policy-makers.

She also wants to ban EU countries from selling technology that helps dictators to snoop on people: “[The EU] will develop appropriate measures to ensure that people are not subject to indiscriminate censorship or mass surveillance when using the Internet.”