The House Reauthorizes the FISA Amendments Act, but Opposition Grows Among House Democrats

I care very passionately about Fourth Amendment rights, and of all the legislation on this issue, the FISA Amendments Act is possibly the worst. Hurriedly passed in 2008 with the Bush administration having one foot out the door, it retroactively immunized telecommunications companies from liability relating to their blatant disregard of laws intended to keep Americans’ phone calls secret. It allowed the executive branch to spy on Americans’ communications and retain their content, provided that the intent was to capture the content of communications with foreign nationals relating to terrorism – and who can say what the intent was? It was a blank check for the executive to do as it pleased, and perhaps that’s why then-Senator Obama voted for it.

You might think, then, that a House held by a party that waxes at length about how America is groaning under the tyranny of the Marxist-in-chief might oppose reissuing that blank check. As it turns out, not so much. The final vote tally was 301-118 in favor, including 227 Republican Yea votes.

So, what’s going on? What is happening to House Democratic support for civil liberties? And why are House Republicans giving the Obama administration a blank check on this, and only this issue?

Unexpectedly, among House Democrats, it’s not because the change in President has made them newly comfortable with warrantless surveillance. In 2008, when the law was originally proposed, 128 Democrats voted Yes, as opposed to 74 today. Many more House Democrats opposed it in 2012 than opposed it in 2008, even with a Democrat in the White House. 12 Democrats voted Nay in 2008 and Yea in 2012, and 9 Democrats moved the other way. However, Democrats new to the House, elected in 2008 and 2010, were much more likely to oppose reauthorization of the FISA Amendments Act. This is presumably because warrantless surveillance was a hot issue with the Democratic base during the last years of the Bush administration, making it more likely that freshman Democrats would have run on opposition to warrantless surveillance relative to Democrats previously in the House.

The seven Nay votes among Republicans came from Amash (R-MI), Duncan (R-TN), Gibson (R-NY), Johnson (R-IL), Jones (R-NC), McClintock (R-CA) and Paul (R-TX ). They’re not Tea Party Caucus people (only two of its 61 members opposed reauthorization); instead, Ron Paul’s Liberty Caucus is leading the way.  We can deduce from this that the Tea Party folks really don’t care about the Fourth Amendment, or alternatively that they really think that the surveillance covered under the FISA Amendments Act relates only to foreign nationals. Freshman Rep. Trey Gowdy (R-SC) asked tellingly during the one hour of debate allowed, “Are we to believe that the Fourth Amendment applies to the entire world?”, and many other speeches showed that House supporters of reauthorization thought it related only to foreign nationals.

Let me be blunt (I’m not that good at being tactful). There’s no out. There are no exceptions. The Constitution applies always, and people who claim it doesn’t can go suck it. Our Fourth Amendment should apply to every US government action anywhere in the world. Other governments’ actions can be bound by their own constitutions. But each government actor swears to uphold the Constitution, and they should do it. When the prison camp at Guantanamo Bay was set up, it was set up there on the theory that Guantanamo Bay was not US soil and the Constitution therefore didn’t apply there. I believe that wherever in the world the US government exercises control, its acts should be bound by the US constitution. If the US government wants to argue that the US constitution doesn’t apply at Guantanamo, then no legal vacuum can exist, and the US government is therefore bound in its actions there by the constitution of Cuba, from whom the US government leases Guantanamo Bay. And who wants that?

The courts, unfortunately, have endorsed executive abuses of the Fourth Amendment in part, and have introduced invalid distinctions between US governments spying on American nationals and US governments spying on foreign nationals. One day, I hope to see those distinctions overturned, and a uniform standard of probable cause applying to all surveillance efforts.

The FISA Amendments Act reauthorization now moves to the Senate. Please write your Senator to let them know that, for the sake of all of us, this vicious legislation should be allowed to die. Senator Ron Wyden (D-OR), to his immense credit, has put a hold on the reauthorization; please thank him here.

Eroding Rights Roundup: Even The Economist Now Senses There’s Something Wrong

Hard as it is to believe, we now learn that the NSA may have actually violated the law relating to wiretapping “at least once.” This is accurate only in the sense that the entirety of the NSA’s activities from the moment of its founding to the present day constitute one enormous, continuous violation of the law. The NSA exists to violate the law in the service of the government of the day, whether that government is chasing the communiss, peaceniks, tree-huggers, towelheads, or journalists who hurt the government’s fee-fees and make it feel sad.

Even The Economist, more commonly observed making the case for the crucial importance of vampire squids to the world economy, is beginning to sound the alarm on the NSA’s data collection efforts:

A good general principle [for reforming American laws on data privacy] would be to afford data stored in a private e-mail account as much protection as letters stored in a locked desk drawer – that is, law-enforcement agencies wanting to get a look at them should need a warrant. … Metadata can now be amassed on a vast scale, and … deserves far more protections than it now receives … the ECPA [Electronic Communications Privacy Act] is almost impossible to apply consistently or fairly.

Some US elected officials are breaking ranks with the Obama administration to propose meaningful reforms. Representatives John Conyers (D-Mich) and Jerrold Nadler (D-NY)’s new ECPA Modernization Act would extend ECPA to cover data in the cloud, if it can make it out of committee; on the Senate side, Senators Jeff Merkley (D-OR), Ron Wyden (D-OR) and Jon Tester (D-MT) introduced the Protect America’s Privacy Act to require warrants in order to spy on Americans’ communications, and to require surveillance to actually stop in the (unlikely) event that the FISA court rejects an application for a warrant. CREDO is running a petition campaign to support this legislation – add your name today!

Last, legal scholars are weighing in on how the rapid changes in technology are changing Fourth Amendment jurisprudence. Aglaia Ovtchinnikova provides an excellent overview of relevant precedent in “A Technologically Sensitive Amendment”;  heavyweight legal scholars Christopher Slobogin and Orin Kerr heroically take on the messy “mosaic theory” of the Fourth Amendment following January’s split decision in U. S. v. Jones; and Paul Ohm calls for a “thorough reinvention” of the Fourth Amendment in order to prevent the advance of the surveillance state in “The Fourth Amendment in a World Without Privacy”.

[h/t: The Economist; FourthAmendment.com; Wired.com]

Welcome

Welcome to the Campaign for Digital Fourth Amendment Rights.

My name is Alex Marthews. I started this Campaign in June 2012, after becoming a naturalized US citizen.

At the beginning of the century, I was an intern with the Electronic Frontier Foundation, and did extensive work on online civil liberties, devising UC Berkeley’s first course on Cyberlaw and writing my thesis on blocking and filtering systems. Since that time, I have grown increasingly worried as governments around the world have taken advantage of the Internet to track ordinary people’s activities ever more closely and systematically. Most notably, the US government has decided that when it comes to our digital data, the Fourth Amendment is dead, and that they can intercept and read all US communications without a warrant and without regard for the law.

The Fourth Amendment reads:

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.

This is one of our nation’s highest laws. It exists for a reason. In colonial times, the British government would issue “general warrants” allowing colonial officers to ransack people’s homes without probable cause, and then to arrest people on the strength of what they found. These “general warrants” have now made a comeback on a scale unimaginable to the oppressive administration of George III. We are all now presumed guilty until we have proven ourselves innocent.

The normal institutions that should have stopped this from happening are failing. The Republican party supported warrantless wiretapping under Bush, and now cannot easily oppose the same practices under Obama. The Democrats opposed it under Bush, and, with a few honorable exceptions, have failed to oppose it under Obama. The courts have by and large refused to hear lawsuits seeking to stop it, because you don’t have standing to bring a lawsuit unless you can prove that you have been spied upon, but the only people who can tell you that you are being spied upon are the people doing the spying. After the Second Circuit in Amnesty International v. Clapper unexpectedly ruled that plaintiffs did nevertheless have standing, the Supreme Court hurriedly approved the government’s petition to have the case heard in the fall, which ominously suggests that they may have agreed to hear it only in order to finally close off the courts as a venue for redress.

We must therefore ask ourselves as citizens and as defenders of freedom, what we can do to preserve the ability to communicate freely and openly, if neither the political system nor the courts provides an adequate check to a government run amok. As a first step, I will using my extensive experience running nonprofits to set up the Campaign as a 501(c)(4) nonprofit corporation, recruiting volunteers and supporters, and working out how to strengthen the Fourth Amendment in New England. If you would like to help, please contact me at (alex) at (warrantless.org).

If We Don’t Tell You We’re Watching You / You Maybe Maybe Maybe Can Still Sue

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)

What, Was That Your Data I Lost In Between The Couch Cushions For 15 Months?

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 ReviewThe Volokh Conspiracy)

Seattle PD: When We Fly Drones Over Your House And Take Photos, We’re Not Infringing Your Privacy

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)

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