Public Sentiment and Coronavirus

From Pew:

About twice as many Americans say their greater concern is that state governments will lift restrictions on public activity too quickly (66%) as say it will not happen quickly enough (32%).

... 

Democrats are largely united in their concerns over state governments easing bans on public activity; 81% of Democrats and Democratic-leaning independents say their greater concern is that governments will lift these restrictions too quickly. Yet Republicans and Republican leaners are evenly divided. About half (51%) say their bigger concern is that state governments will act too quickly while slightly fewer (46%) worry more that restrictions on public movement will not be lifted quickly enough.

Jeffrey M. Jones at Gallup:

Americans' evaluations of the economy have abruptly turned negative amid the coronavirus pandemic. Gallup's Economic Confidence Index is now -32, down from +22 in March. The 54-point drop is the largest one-month change in Gallup's trend dating back to 1992, and it comes on the heels of last month's 19-point drop, which had been one of the largest monthly declines to date. Just two months ago, economic confidence was the highest it had been in 20 years.

Lydia Saad at Gallup:

As the country endures an unprecedented shutdown of public life to slow the spread of the novel coronavirus, more Americans are worried about contracting the illness (57%) than about experiencing severe financial problems from the disruption caused by it (48%).

Katherine Schaeffer at Pew:

While a plurality of Americans (43%) say the new coronavirus most likely came about naturally, nearly three-in-ten (29%) say it most likely was created in a lab, according to a Pew Research Center survey conducted from March 10 to 16, 2020, as part of the Center’s nearly yearlong Election News Pathways project. Around a quarter of adults (23%) say it is most likely that the current strain of coronavirus was developed intentionally in a lab; another 6% say it was most likely made accidentally in a lab. A quarter say they aren’t sure where the virus originated.

  Monica Anderson and Brooke Auxier at Pew:

Six-in-ten Americans say that if the government tracked people’s locations through their cellphone it would not make much of a difference in limiting the spread of the virus, according to a new Pew Research Center survey of U.S. adults conducted April 7-12, 2020. Smaller shares of Americans – about four-in-ten – believe this type of monitoring would help a lot (16%) or a little (22%) in limiting the spread of COVID-19.

 Justin McCarthy at Gallup:

Americans increasingly say they feel less connected to family and friends as most of the country is under stay-at-home orders amid the coronavirus pandemic. More than a third of U.S. adults (37%) say they have felt less connected to family and friends in the past week -- an eight-point increase from the 29% Gallup found in late March.

Businesses Seeking Regulation

In his landmark 1971 article, economist George Stigler wrote: “Regulation is acquired by the industry, and is designed and operated primarily for its benefit.”  Occupational licensing is a classic example.

At Axios, Kim Hart provides additional confirmation:

Digital currencies: 2017 ushered in a boom in so-called “initial coin offerings,” but so far the Securities and Exchange Commission has only issued one no-action report and a string of charges against fraudsters.

• The cryptocurrency industry is clamoring for regulators to finally declare what qualifies as securities (among other questions). And it would also like some further guidance from the Internal Revenue Service, which has kept mum since a short 2014 memo, notes Axios' Kia Kokalitcheva.

Online privacy: Early in the Trump administration, Congress overturned the FCC's privacy rules for internet service providers such as AT&T, Verizon, Charter and Comcast. The rules didn't apply to web giants like Google or Facebook, who supported their repeal.

• In the wake of high-profile data scandals and an increased interest in reining in Big Tech's power, policymakers from both parties are revisiting the need for federal privacy rules. This time, the telecom and tech companies are on board with rules — partly because they're inevitable, and partly to pre-empt state regulations are are cropping up all over the country.

Financial advisers: Brokerage firms want more clarity about an Obama-era fiduciary rule that was overturned this year. The rule required financial advisers to work in their client's best interest — and not push products with higher fees, even if they produce less-than-stellar returns.

• But firms have already shifted investment products and altered structures of broker fees in preparation for the regulation's full implementation. The question is what's coming back and when. The SEC has since taken up the issue, proposed "Regulation Best Interest" and put it high on its 2019 agenda, Axios' Courtenay Brown reports.

...
The bottom line: Companies may feel safer handing government the hot potato of figuring out where to draw lines around potentially controversial technologies to help limit their own liabilities. But government may not be inclined to limit its own freedom to use the new tools, as may be the case with facial recognition and drones, notes Axios' Ina Fried.

How FISA Works

At Lawfare, David Kris explains the Foreign Intelligence Surveillance Act, which has been the subject of confusion and misinformation on social media.

FISA establishes the Foreign Intelligence Surveillance Court (also known as the FISC), which consists of 11 district judges chosen publicly by the Chief Justice of the United States and drawn from at least seven of the federal judicial circuits. (For more detail on the selection process, see this CRS report; for a list of all judges who have served on the FISC, see here). Judges on the FISC sit for staggered seven-year terms and ordinarily continue to serve as judges in their home districts. A judge may not sit for more than one seven-year term on the FISC. The “presiding judge” of the FISC functions more or less like a chief judge of a district court, with powers and duties set forth in the FISC’s publicly-available rules.

The FISC sits in a secure courtroom in the federal courthouse in Washington, D.C. (prior to 2009, it sat in a secure courtroom inside the Department of Justice Building). In general, each of the 11 judges sits for all or part of one week every 11 weeks, maintaining a continuous rotation. The FISC has a clerk of court, and he or she maintains a docket of more or less the usual sort as prescribed by the court’s rules. The record of proceedings before the FISC, including the docket, applications, and orders, is by statute “maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.” These security measures have been made public as Exhibit B to this document.

The FISC’s rules provide that—apart from emergencies—“proposed applications and orders must be submitted no later than seven days before the government seeks to have the matter entertained by the Court,” and that the “final application,” with the Attorney General’s approval and other required elements, may be submitted “no later than 10:00 a.m. Eastern Time on the day the government seeks to have the matter entertained by the Court.” Changes made between the proposed application and the final application must be specifically identified to the FISC. Applications raising “an issue not previously before the Court – including, but not limited to, novel issues of technology or law” – must also be identified. With the FISC’s approval, applications and signatures may be submitted electronically.

Applications under FISA are heard by a single FISC judge, and by statute and rule the government may not ask a second judge to consider an application for electronic surveillance or a physical search after one FISC judge has denied it. Instead, if a judge denies such an application, the government’s only statutory remedy is to take an appeal to the Foreign Intelligence Surveillance Court of Review.

In practice, however, the FISA process has not always worked in such a rigid and formal way. For example, in 2002, Judge Royce Lamberth explained how the submission and decision process functioned during his tenure as presiding judge of the FISC:

I bristle at the suggestion in some quarters that we are rubber stamps for the government, because no applications have been formally denied in recent years. Some have been revised, some have been withdrawn and resubmitted with additional information, and the process is working. It is working, in part, because the [A]ttorney [G]eneral is conscientiously doing his job, and his staff is, as well.

Inequality and Invisibility

Kate Allen reports at The Financial Times:

There is nothing remarkable about 23726 Long Valley Road — except that it does not appear to exist.

Estate agents’ advertisements show that the high-end Californian home — six bedrooms, pizza oven, pool — is situated in a gated community on the edge of Los Angeles. Yet prospective buyers searching online to check out the neighbourhood are wasting their time — none of the area’s 648 homes appear on Google Street View.

All that online maps show of the area are street routes and names — what could perhaps be an outline plan for a future housing development. But anyone looking for a kerbside view of the property will find no evidence of it.

The community’s name gives a clue why: it is called Hidden Hills. What the area’s occupants — who reportedly include Kim Kardashian, Miley Cyrus, Justin Bieber and Jennifer Lopez — value above all is privacy. That includes banning Google’s photography vehicles from entering (and declining to talk to the FT; a spokeswoman for the area’s management company said it had a policy of not giving interviews to the press).

Academics have long used the names “hidden communities” or “invisible communities” to denote areas with high concentrations of deprivation and social marginalisation. Yet some of the world’s most privileged people are choosing to hide from the public eye to protect their homes from burglars and other forms of unwelcome attention.

Uber Oppo

Oppo guys work for interest groups, not just campaigns.

Ben Smith reports at Buzzfeed:

A senior executive at Uber suggested that the company should consider hiring a team of opposition researchers to dig up dirt on its critics in the media — and specifically to spread details of the personal life of a female journalist who has criticized the company.

The executive, Emil Michael, made the comments in a conversation he later said he believed was off the record. In a statement through Uber Monday evening, he said he regretted them and that they didn’t reflect his or the company’s views.

His remarks came as Uber seeks to improve its relationship with the media and the image of its management team, who have been cast as insensitive and hyper-aggressive even as the company’s business and cultural reach have boomed.

The Washington Post reports:

That combination of vindictiveness and willingness to tap into user information provoked outrage Tuesday on social-media sites, spawning the hashtag “#ubergate” on Twitter. Critics recounted a series of Uber privacy missteps, including a 2012 blog post in which a company official analyzed anonymous ridership data in Washington and several other cities in an attempt to determine the frequency of overnight sexual liaisons by customers — which Uber dubbed “Rides of Glory.”

Cell Phone Privacy

At SCOTUSBlog, Lyle Denniston writes of Riley v. California:

Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested. Seeing an individual with a cellphone is such a common thing today, Chief Justice John G. Roberts, Jr., wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee. It left open just one option for such searches without a court order: if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot. But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.” And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

The Court’s ruling drew some suggestions by Justice Samuel A. Alito, Jr., to narrow its scope, but it did not accept those. The result was the broadest constitutional ruling on privacy in the face of modern technology since the Court’s ruling two Terms ago limiting police use of satellite-linked GPS tracking of a suspect’s movements by car.

From the opinion of the Court:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Or as Charlton Heston said in Touch of Evil, " A policeman's job is only easy in a police state."

James Madison and the NSA

The New York Times reports:

A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

The judge, Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But Judge Leon, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, which he said could take at least six months.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.

 From the opinion:

I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and hightech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast.67

 67 James Madison, Speech in the Virginia Ratifying Convention on Control of the Military (June 1 6, 1 7 88), in THE HISTORY OF THE VIRGINIA FEDERAL CONVENTION OF 1 788, WITH SOME ACCOUNT OF EMINENT VIRGINIANS OF THAT ERA WHO WERE MEMBERS OF THE BODY (Vol. 1 ) 1 3 0 (Hugh B lair Grigsby et al. eds., 1 890) ("Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.").

Federalism, Secession, and Privacy

Federalism remains much in the news. Though states cannot secede from the Union, it is possible (albeit difficult) for a group of localities to secede from an existing state to form a new one.  At NPR.org, Alan Greenblatt writes about an election that will happen soon:

There's a big race right now to become the 51st state.

Forget traditional contenders like Puerto Rico. In several existing states, residents of less populous areas are hoping to create new states of their own.

Citizens in 11 mostly northeastern Colorado counties are among them. They'll vote on Nov. 5 whether to break off and form their own state. Many are unhappy about liberal state legislation they believe reflects the values of the Denver-Boulder corridor, but not their part of the world.

"We're rarely listened to when it comes to legislation," says Butch White, the mayor of Ault. "I'm sure the vote will pass in Weld County quite easily."

The Colorado counties aren't alone. There's been occasional talk of secession at various times in recent decades, but now the idea is showing signs of taking root across the map.

There is talk about and sometimes movement toward secession in several states. These are locally motivated startups, but they share some themes in common.

People in mostly conservative areas feel isolated living in states controlled by Democrats. Rural residents, in particular, believe their values are given no respect in capitols now completely dominated by urban and suburban interests.

Secession may be part of the same impulse that leads states to sue or otherwise try to block or nullify federal laws they don't like. People are losing respect for institutions that don't reflect their preferences and would prefer, to the extent possible, to extricate themselves from them.

The New York Times reports that states are playing their traditional role as laboratories of democracy.  Unlike the federal Constitution, some state constitutions contain explicit protections for privacy.  The issue remains hot:

State legislatures around the country, facing growing public concern about the collection and trade of personal data, have rushed to propose a series of privacy laws, from limiting how schools can collect student data to deciding whether the police need a warrant to track cellphone locations.

Over two dozen privacy laws have passed this year in more than 10 states, in places as different as Oklahoma and California. Many lawmakers say that news reports of widespread surveillance by the National Security Agency have led to more support for the bills among constituents. And in some cases, the state lawmakers say, they have felt compelled to act because of the stalemate in Washington on legislation to strengthen privacy laws.

“Congress is obviously not interested in updating those things or protecting privacy,” said Jonathan Stickland, a Republican state representative in Texas. “If they’re not going to do it, states have to do it.”
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“It can be counterproductive to have multiple states addressing the same issue, especially with online privacy, which can be national or an international issue,” said Michael D. Hintze, chief privacy counsel at Microsoft, who added that at times it can create “burdensome compliance.” For companies, it helps that state measures are limited in their scope by a federal law that prevents states from interfering with interstate commerce
.

Privacy, Student Aid, and Data Mining

Many posts have discussed privacy issues. The US Education Department's Free Application for Federal Student Aid is an example:  it purportedly helps students, but it is actually hurting some.  Inside Higher Ed reports:

When would-be college students apply for financial aid using the FAFSA, they are asked to list the colleges they are thinking about attending. The online version of the form asks applicants to submit up to 10 college names. The U.S. Department of Education then shares all the information on the FAFSA with all of the colleges on the list, as well as state agencies involved in awarding student aid. The form notes that the information could be used by state agencies, but there is no mention that individual colleges will use the information in admissions or financial aid -- and there is no indication that students could be punished by colleges for where they appear on the list.

But the list has turned out to be very valuable to college admissions offices and private enrollment management consultants: They have discovered that the order in which students list institutions corresponds to students’ preferred college.

Now, some colleges use this “FAFSA position” to deny students admission, said David Hawkins, director of public policy and research for the National Association for College Admission Counseling.

So the institution is disinclined to use up a precious admissions slot for a student who is unlikely to enroll.

... 

Besides turning away students who put their institution further down the list, some college officials may also be offering smaller aid packages to students who list their institution highly, according to several prominent higher education consultants who advise institutions across the country on enrollment practices.

This could be happening because students are more likely to pay whatever it takes to attend the college of their choice... The use of the list on the FAFSA is just another example of how colleges are using increasingly sophisticated data mining techniques to recruit and shape their classes.

...

While ACT and College Board have long earned a lot of money by selling students' names, it’s not clear why the federal government is revealing information to colleges that could be used against students. Some outsiders suggested the Department of Education’s current practice is easier on the department -- otherwise, it would have to find a way to scrub each and every one of the FAFSAs of the names of other institutions.

The practice also raises questions of inequality, since it does not affect affluent students who forgo applying for student aid.

Press Conference Errors

During press conferences, presidents sometimes make mistakes.  President Obama may have made a couple yesterday.  At Politico, Edward-Isaac Dovere writes:

“If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistle-blower protection to the intelligence community for the first time,” Obama said. “What we’ve seen is information come out in drips and in drabs, sometimes coming out sideways. Once the information is out, the administration comes in, tries to correct the record. But by that time, it’s too late or we’ve moved on.”

Never mind that there’s an open question of whether Snowden, as a government contractor and not a direct government employee, would have been subject to those protections.

Tom Devine of the Government Accountability Project told POLITICO that he’d asked the White House counsel to justify Obama’s assertion, first made in his interview with Jay Leno on the Tonight Show on Tuesday, and they said they’d decided to interpret the presidential policy directive on whistleblowers.

“As written, though, it only bans actions by government employees, leaving contractor whistleblowers vulnerable to retaliation initiated by the contractor itself,” Devine said. “The White House lawyer said they are looking for a way to enforce that scenario.”

Mike Levine reports at ABC:

"[W]e have informed, I think, the public that there's a sealed [Benghazi] indictment," the president responded. "It's sealed for a reason. But we are intent on capturing those who carried out this attack, and we're going to stay on it until we get them."

That marked the only official confirmation so far of a sealed indictment in the Benghazi case. For days, officials across the law enforcement and intelligence communities have refused to publicly confirm reports of a sealed indictment.

After all, according to federal law, [strictly speaking, the federal rules of criminal procedure] "no person may disclose [a sealed] indictment's existence," and a "knowing violation … may be punished as a contempt of court." Contempt of court carries a maximum sentence of six months in jail.

A U.S. official, speaking on the condition of anonymity, called the president's disclosure "crazy."

"Doesn't the law apply to the president too?" the official asked, and then jokingly added, "I guess he could pardon himself."

In fact, though, the president is effectively immune from breaking the law when it comes to a sealed indictment, according to a former prosecutor in the Justice Department's Public Integrity Section

"The [president], by virtue of his position, can't violate any non-disclosure/confidentiality rule," said Peter Zeidenberg, now in private practice in Washington. "One of the perks of being the head of the executive branch: Nothing he says is technically a leak. If he does it, it is authorized."

However, Zeidenberg acknowledged "an argument could be made that a sealed matter can only be unsealed by a court."

A Question-Wording Experiment

Our chapter on public opinion explains that the wording of surveys can have a big impact on the results.  The Pew Research Center recently drove this point home with an experiment:

To better understand how the manner in which the government’s surveillance program is described affects public evaluations, the Pew Research Center conducted a question wording experiment in a national telephone survey fielded between July 11 and 21, 2013 among 2,002 adults. The survey respondents were asked whether they would favor or oppose a government data collection program, but the wording of four elements of the program were described differently to different groups of respondents. These are: whether metadata or content is being collected; whether phone calls or emails are being monitored; whether the program has court approval; and whether the program is part of anti-terrorism efforts.

Mentioning the role of courts and describing the program as part of anti-terrorism efforts each had a substantial effect on public sentiment. Among the roughly 1,000 respondents who heard the government surveillance program described as occurring “with court approval,” support was 12 points higher than among the other 1,000 who heard no mention of courts. This is consistent with the findings of a separate Pew Research Center survey, which found that people’s impressions of whether or not there is adequate court oversight of the program are more strongly linked to overall support an opposition than are other perceptions.

The Third Amendment

The Third Amendment says:  "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

At USA Today, Glenn Reynolds writes that one sign of its success is the relative absence of Third Amendment cases. But there are some:

In an article published in the William & Mary Bill of Rights Journal last year, however, Prof. Tom W. Bell points out that such violations, while perhaps rare, are not unknown. In 1942, for example, inhabitants of the Aleutian Islands were forced out of their homes, and in some cases troops were actually quartered there, but it took the federal government decades to admit wrongdoing or pay damages.

Likewise, in a 1982 case in the U.S. Court of Appeals for the Second Circuit, prison guards evicted from their quarters and replaced with National Guard troops during a strike sued, and the Court of Appeals found that this action implicated their rights under the Third Amendment, which it characterized as "designed to assure a fundamental right of privacy."

Now we see another Third Amendment case, from Henderson, Nev., in which the plaintiffs, the Mitchell family, claim that Henderson police seized their home -- battering the door open with a battering ram -- so as to secure an advantageous position in addressing a domestic violence report involving a neighboring house. The police were quite rude -- calling the inhabitants "assholes" and shooting both Anthony Mitchell and his dog with a pepper-ball gun -- before setting up a lookout post in the house.

Should the Third Amendment have something to say about this? Well, it speaks only to "troops," not police -- but then, professional police in the modern sense hadn't been invented at the time of the framing. And given the extreme militarization of police nowadays -- with Nomex coveralls, body armor, AR-15 rifles, grenades, armored vehicles, etc., all documented in Radley Balko's new book, The Rise of the Warrior Cop, -- maybe that's a distinction without a difference anyway. Armed minions of the state seizing your home by force seem close enough to "troops" for me.

Personally, I think we need to return to the sense of one's home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and -- unless they have a warrant -- should have to depart if the homeowner doesn't want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.

Courts and Secret Law

The Wall Street Journal reports:

The National Security Agency's ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: "relevant."

This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The 'relevant' language was added to the Patriot Act when it came up for reauthorization; it was signed by President Bush in 2006.

In interviews with The Wall Street Journal, current and former administration and congressional officials are shedding new light on the history of the NSA program and the secret legal theory underpinning it. The court's interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.

The New York Times reports:

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.
...
Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process,” he said.

Andrew Rosenthal writes at The New York Times:

One of the problems with the debate over the necessity and legality of the National Security Agency’s data-mining program is that we’re having it in the dark. The surveillance programs are based on legal arguments delivered in secret by government lawyers to a court that operates out of public view and issues opinions that are classified as too secret for mere mortals to read.

For that reason, 16 members of Congress — a majority of them Republicans — recently filed a supporting brief for a lawsuit by the American Civil Liberties Union to compel the release of declassified versions of the Foreign Intelligence Surveillance Court’s opinions “evaluating the meaning, scope and constitutionality” of the relevant part of the Patriot Act, Section 215.

“We accept that free countries must engage in secret operations from time to time to protect their citizens,” Representative Justin Amash, Republican of Michigan, wrote in the brief. “Free countries must not, however, operate under secret laws. Secret court opinions obscure the law. They prevent public debate on critical policy issues and they stop Congress from fulfilling its duty to enact sound laws and fix broken ones.”

Senator Obama and Bulk Collection

Previous posts have discussed government surveillance. On February 12, 2008, then-Senator Obama said:

We can give our intelligence and law enforcement community the powers they need to track down and take out terrorists without undermining our commitment to the rule of law or our basic rights and liberties. That is why I cosponsored the Feingold amendment, which would have prevented the Government from using these extraordinary warrantless powers to conduct "bulk collection" of American information. I also supported the Feingold-Webb-Tester amendment to protect the privacy of Americans' communications by requiring court orders to monitor American communications on American soil, unless there is reason to believe that the communications involve terrorist activities directed at the United States or the monitoring is necessary to prevent death or serious bodily harm. Unfortunately, these amendments were defeated as well. These are the types of narrowly tailored, commonsense fixes that would have allowed the Government to conduct surveillance without sacrificing our precious civil liberties.

More Surveillance

Privacy and the power of the administrative state have suddenly become hot issues. The Washington Post reports:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets, according to a top-secret document obtained by The Washington Post.

The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.

 

Privacy and Government Power

The Guardian reports:

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

Slate reports:

Recently, the FBI has been attacking the “going dark” problem—that is, its inability to read all electronic communications—from both legal and technological angles. It wants to be able to fine communications companies for refusing to comply with subpoena requests for the content of customers’ emails and chats. It’s also trying to create ways of decrypting any communication sent via a Web service, like Gmail messages Facebook chats, or Twitter direct messages. It believes it can work with companies to build secure methods for lawfully intercepting communications on the Web.

But a report released last week by the Center for Democracy and Technology and some of the top names in computer security points out that building so-called "back doors" in to these Web services will also increase the risk that bad actors will gain access to the communications content of all users of these services. Creating a back door in software is like creating a lock to which multiple people hold the keys. The more people who have a key, the higher the likelihood that one will get lost. But this is precisely the power that would be granted by proposed extensions to the Communications Assistance for Law Enforcement Act (CALEA II).

AP reports:

U.S. border agents should continue to be allowed to search a traveler's laptop, cellphone or other electronic device and keep copies of any data on them based on no more than a hunch, according to an internal Homeland Security Department study. It contends limiting such searches would prevent the U.S. from detecting child pornographers or terrorists and expose the government to lawsuits.

The 23-page report, obtained by The Associated Press and the American Civil Liberties Union under the U.S. Freedom of Information Act, provides a rare glimpse of the Obama administration's thinking on the long-standing but controversial practice of border agents and immigration officers searching and, in some cases holding for weeks or months, the digital devices of anyone trying to enter the U.S.

AP reports on Maryland v. King:

A sharply divided Supreme Court on Monday said police can routinely take DNA from people they arrest, equating a DNA cheek swab to other common jailhouse procedures like fingerprinting.

“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for the court’s five-justice majority.

But the four dissenting justices said that the court was allowing a major change in police powers.

“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom. “This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane — surely the TSA must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.”

"No One Has a Right to Make Fun of Anyone"

Ars Technica reports on one Georgia lawmaker's peculiar view of the First Amendment:

Infuriated by a critic who photoshopped his head onto the body of a male porn star, a Georgia legislator has proposed making such images illegal. Violators would face a $1,000 fine.

“Everyone has a right to privacy,” Rep. Earnest Smith (D-Augusta) said in an interview with FoxNews.com. “No one has a right to make fun of anyone. It’s not a First Amendment right.”

The legislation would define defamation to include cases where someone "causes an unknowing person wrongfully to be identified as the person in an obscene depiction in such a manner that a reasonable person would conclude that the image depicted was that of the person so wrongfully identified." It specifically includes "the electronic imposing of the facial image of a person onto an obscene depiction."

The Supreme Court has a different take. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) the Court ruled 8-0 that Rev. Jerry Falwell could not collect damages for an equally offensive cartoon.  From the syllabus of the opinion:

In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be accepted. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. 

Privacy and Campaign Technology

Previous posts have discussed campaign technology. As the New York Times reports, the Romney and Obama campaigns insist that they respect voter privacy when using this technology.

In interviews, however, consultants to both campaigns said they had bought demographic data from companies that study details like voters’ shopping histories, gambling tendencies, interest in get-rich-quick schemes, dating preferences and financial problems. The campaigns themselves, according to campaign employees, have examined voters’ online exchanges and social networks to see what they care about and whom they know. They have also authorized tests to see if, say, a phone call from a distant cousin or a new friend would be more likely to prompt the urge to cast a ballot.

The campaigns have planted software known as cookies on voters’ computers to see if they frequent evangelical or erotic Web sites for clues to their moral perspectives. Voters who visit religious Web sites might be greeted with religion-friendly messages when they return to mittromney.com or barackobama.com. The campaigns’ consultants have run experiments to determine if embarrassing someone for not voting by sending letters to their neighbors or posting their voting histories online is effective.

“I’ve had half-a-dozen conversations with third parties who are wondering if this is the year to start shaming,” said one consultant who works closely with Democratic organizations. “Obama can’t do it. But the ‘super PACs’ are anonymous. They don’t have to put anything on the flier to let the voter know who to blame.”

While the campaigns say they do not buy data that they consider intrusive, the Democratic and Republican National Committees combined have spent at least $13 million this year on data acquisition and related services. The parties have paid companies like Acxiom, Experian or Equifax, which are currently subjects of Congressional scrutiny over privacy concerns.

Vendors affiliated with the presidential campaigns or the parties said in interviews that their businesses had bought data from Rapleaf or Intelius, companies that have been sued over alleged privacy or consumer protection violations.

Surveillance

AP reports:

The Obama administration maintains it is unable to say how many times one of the government's most politically sensitive anti-terrorism surveillance programs — which is up for renewal this week on Capitol Hill — has inadvertently gathered intelligence about U.S. citizens.

In a briefing for reporters on the 11th anniversary of the 9/11 terrorist attacks, the general counsel for the Office of the Director of National Intelligence said Tuesday that the program designed to monitor international communications by terrorist suspects has collected an extraordinary amount of valuable intelligence overseas about foreign terrorist suspects while simultaneously protecting civil liberties of Americans.

Originated by the George W. Bush administration, the program was publicly disclosed by The New York Times in 2005 and was restructured in 2008 to provide oversight by a secret federal court and with additional oversight from Congress.

Civil liberties groups and some members of Congress have expressed concern that the government may be reviewing the emails and phone calls of law-abiding Americans in the U.S. who are at the other end of communications with foreign terrorist suspects being monitored abroad.

FDA Spies on Its Employees

The New York Times reports:

A wide-ranging surveillance operation by the Food and Drug Administration against a group of its own scientists used an enemies list of sorts as it secretly captured thousands of e-mails that the disgruntled scientists sent privately to members of Congress, lawyers, labor officials, journalists and even President Obama, previously undisclosed records show.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.