Amnesty Intl. USA v. Clapper, 638 F.3d 118, 2011 ILRC 1479, 39 Med. L. Rptr. 1481 (2d Cir. 2011) [2011 BL 73424]
It comes as no surprise that the federal government continues to fight tooth and nail to prevent court review of any kind of its warrantless surveillance of the world’s communications. What’s surprising is that, even with the strong deference shown by U. S. courts towards claims of “national security”, the occasional ruling still slips through. This is one of those. A mix of attorneys, journalists and human rights organizations have challenged the constitutionality of changes to the Foreign Intelligence Surveillance Act, arguing that though they do not have access to affirmative evidence that they are being surveilled, it is plausible enough that they are being surveilled that they have taken expensive and burdensome actions to change the way they communicate with their overseas contacts to take that possibility into account. The case will go ahead as a facial challenge to Section 702 of the FISA Amendments Act.
The Act’s language, accurately described by Lyle Dennison, heartwarmingly excludes intentional capture of US persons’ communications:
The amendments significantly expanded the federal government’s authority to engage in electronic surveillance that supposedly targets only foreign nationals, but may pick up communications involving Americans, although that is not allowed intentionally [my italics].
Let’s review. FISA got expanded to allow communications involving Americans to be vacuumed up at will without a warrant, so long as the vacuuming is not intentional. Perhaps the thinking was that this would insulate a computer algorithm from Fourth Amendment review, because a computer algorithm could be deemed by a court to have no intent. We would argue that a computer algorithm that does not distinguish between the communications of U. S. citizens and of non-U. S. citizens is in effect intentionally designed to pick up communications involving Americans. “Oops, golly gee, I don’t know how that happened” is not a legitimate defense against Fourth Amendment review. (h/t: SCOTUSBlog)
United States v. Metter, 2011 U.S. Dist. LEXIS 155130 (E.D.N.Y. 2012)
In a ruling Thursday, a New York federal court held that the FBI took too long to examine a defendant’s imaged hard drive after it was obtained via warrant. “The government’s more than fifteen-month delay in reviewing the seized electronic evidence”, wrote an acerbic Judge Dora Irizarry, “under the facts and circumstances of this case, constitutes an unreasonable seizure under the Fourth Amendment.” Judge Irizarry found that the government had shown no intent even to begin a review of the materials seized to determine relevance, and that in that context the search was not accomplished within a “reasonable” time within the meaning of the Fourth Amendment.
Maybe this is another sign that the federal courts are beginning to come to grips with the indefinite persistence and searchability of digital records, and are trying to set some limit beyond which Fourth Amendment notions of a “reasonable” length of time come into play. So, the good news is that by this ruling, the government can’t simply sit on all of your business and personal data for ever without reviewing its relevance to an ongoing case; the bad news is that as a district court ruling, its applicability to broader issues like indefinite government seizure of domain names or asset forfeiture is limited. (h/t: Cybercrime Review, The Volokh Conspiracy)
Congress passed a bill in February requiring the FAA to open U. S. airspace to drones. The Seattle Police Department, without letting Seattle’s City Council know about it, asked for FAA authorization to operate drones “for situations like crime scene photography, missing person searches, and barricaded person scenarios.” Their request was only revealed after a Freedom of Information Act lawsuit by the Electronic Frontier Foundation to reveal the organizations who were seeking authorization.
Sergeant Whitcomb of the Seattle PD insists that “The idea that this is going to be used to infringe on people’s privacy, that is simply not the case.” Perish the thought, dearest Sergeant Whitcomb! Why would anyone be crazy enough to think that it would? The ACLU of Washington is now seeking a binding ordinance that would set usage restrictions and create a review process for how drones are being used. The FAA, on its part, estimates that there may be as many as 30,000 drones in the US by the year 2020. (h/t: EFF)