Tag Archives: NSA

A “What’s Good for the Goose…” News Sandwich

According to The Guardian, the NSA responded Saturday to a request from Senator Bernie Sanders of Vermont about the NSA’s activities with respect to members of Congress. In its statement, the NSA implied that it monitors the communications of Members of Congress as it does any other American. Sanders asked whether the NSA “spied” on Members of Congress, defining “spying” as “gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business.” The NSA responded, in part, that “Members of Congress have the same privacy protections as all US persons.” In other words, Members of Congress have no privacy, either.

Do you think now we might see some legislative action on the issue of the third-party doctrine? Yes, normally I would say this story is bad news, because having a security agency spying on members of the legislative branch might interfere with our system of checks and balances. But in today’s context I’m more interested in seeing a fire lit under the feet of our legislators.

(For my argument as to why and how we should eliminate the third-party doctrine, check out “Don’t Tread on My Metadata” at PJ Media.)

Maybe this revelation by the NSA will motivate one of our better politicians on the issue of privacy, Senator Rand Paul, to get behind the push to give some sort of clemency to Edward Snowden. Again, according to The Guardian, while Paul has spoken in a sympathetic manner about Snowden, he has stopped short of calling for any sort of leniency or clemency. To me that’s disappointing, especially given the fact that Snowden’s revelations are making possible Paul’s class-action lawsuit against the NSA, something that will no doubt be a big fundraiser for his campaign.

What is also disappointing is that there is nothing about the substance of the lawsuit on his site, just a form to fill out. I want to know what theory will be used to challenge the NSA’s spying activities. I have called and emailed Senator Paul’s staff to try to get something more specific than Paul’s framing of the issue during last Friday’s interview: “whether or not constitutionally you can have a single warrant apply to millions of people.” Even that vague framing of the issue may be enough to prompt the Court to reconsider the third-party doctrine, but it would be better if the issue were put to the Court directly.

The good news is that, should the Court eventually do the right thing and eliminate the third-party doctrine, technology is already available that will allow the NSA to do its job just fine without indiscriminate collection of bulk metadata. Matt Blaze, a security expert writing for The Guardian, says that the NSA’s recently revealed “Tailored Access Operations,” which “scare the daylights out of [him],” will allow the NSA to get the information they need to protect national security without routine “backdoor access” to our personal data. Writes Blaze, “as well as TAO works (and it appears to work quite well indeed), they can’t deploy it against all of us – or even most of us.”

But I bet they could deploy it against all Members of Congress 😉

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An NSA News Sandwich

According to The Guardian, German Chancellor Angela Merkel compared the NSA’s snooping practices “with those of the Stasi, the ubiquitous and all-powerful secret police of the communist dictatorship in East Germany, where she grew up.” She is said to have done this during “an angry exchange with Barack Obama” on the phone in October. Edward Snowden had apparently revealed that the NSA was listening in on Merkel’s private cell phone conversations. She also is reported to have said that the NSA cannot be trusted with private information, as evidenced by the fact that Snowden was able to escape with so much of it.

My question for Merkel is: what if Snowden hadn’t been able to escape with that data? Would she say that ignorance is bliss? Even if Merkel is a little confused about whether to cheer the Snowden leaks, I am glad to be able to live vicariously through her having “an angry exchange” with our president.

Those who, like me, disapprove of the NSA’s spying activities will be dismayed to learn that a recent White House-sponsored review of the NSA’s activities has resulted in a recommendation that the NSA continue its programs essentially unchanged. For example, the report is said to recommend continuing the bulk data collection of Americans’ telephone metadata, without probable cause or particularized suspicion, with the only changes being (1) the level of suspicion required to conduct a search on the ginormous database, and (2) the nominal collector and storer of the data would be the telephone companies. I agree with Jim Harper of Cato that requiring the phone companies collect and store the data makes no substantial difference and, in fact, may be worse than the existing program. “Is secretly violating Americans’ communications privacy really rewarded by a policy requiring the violation of Americans’ communications privacy?” he asked.

Harper and other privacy advocates were heartened this week by a federal district judge who ruled that the NSA spying programs were likely unconstitutional. The Guardian provides access to the full text of the ruling, which is long and addresses issues of jurisdiction and standing, but I focused on the part that most interested me: the section pertaining to the third-party doctrine. The judge was conservative, as is appropriate for a district court ruling. He did not say we should get rid of the third-party doctrine, much less the “reasonable expectation of privacy” test, as I do in my recent PJ Media piece and forthcoming law review article. But he did say that he doubted whether the 1978 Supreme Court decision, Smith v. Maryland, a staple of third-party doctrine jurisprudence, could sanction the legality of the NSA’s bulk collection of telephone metadata. Cell phone use today isn’t comparable to the use of the telephone in the 1970s, and so the fact that one might not have had a “reasonable expectation of privacy” in phone metadata in the 1970s doesn’t say anything about whether one has such an expectation today.

While I wish the judge had gone further, it’s a great start and it invites judges on appeal to take a closer look at the third-party doctrine.


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A Bite-Sized News Sandwich for December 4, 2013

In this article at Forbes, Jayson DeMers speculates that one of the top 7 technology trends of 2014 will be the option to use Apple’s new TouchID technology for a wider range of purposes. Right now TouchID can secure your iPhone 5s and streamline purchases from Apple using the device, but DeMers predicts that its use will be expanded not only to other Apple products, including MacBooks, but also “for other purposes, such as to securely integrate with home security systems, access password software, and even pay for groceries….”

Imagine the possibilities for conveniently securing access to a variety of things around your home, car and office, not to mention the ease of verifying transactions without pretending that those awkward motions you’re going through will produce something that resembles your signature on those electronic signature pads at checkout. I hate to admit, however, that I am afraid to use Apple’s TouchID technology, even for securing my own iPhone. The reason for my fear boils down to three letters: N.S.A.

You tell me whether my fear is justified. Today the Washington Post revealed that the NSA is tracking cellphone locations worldwide — “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” Of course they insist they are only targeting the bad guys, blah, blah, blah. But this is just the latest example we have of the NSA gathering massive quantities of “metadata” about innocent people, no probable cause, no particularized suspicion, and expecting us to just trust them not to misuse it. I will not belabor the issue again here, because I already talked about the third-party doctrine that purports to make this overreach “legal” in yesterday’s post. Suffice it to say that I reject the government’s claim to my metadata and the “finding a needle in a haystack” methodology on which it rests.

Oh for the days when criminal investigation consisted of very smart men focusing on a limited amount of relevant data. That reminds me, the season 3 air dates for Sherlock have been announced. (HT Rob Abiera) I know what I’ll be doing on January 19!


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