Tag Archives: privacy

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 Sanction-of-the-Victim News Sandwich

As someone who has been an outspoken critic of the NSA and the third-party doctrine that purports to make their intrusive data-collecting legal, I was heartened to read that several of the major technology companies–Google, Microsoft, Apple, Yahoo, Facebook, Twitter, AOL and LinkedIn–are calling for the United States to lead a worldwide effort to limit online spying. The companies are advocating “new surveillance principles…includ[ing] limiting governments’ authority to collect users’ information, setting up a legal system of oversight and accountability for that authority, allowing the companies to publish the number and nature of the demands for data, ensuring that users’ online data can be stored in different countries and establishing a framework to govern data requests between countries.”

Most notably, the companies urge that indiscriminate bulk data collection be forbidden. The Times’ authors describe the tech industry as a “powerful interest group” that could have a tremendous influence on this debate. Let’s hope so. It is great to see businessmen stand up for their and their customers’ rights for a change!*

I hope the healthcare industry will do the same. There is so much bad news about Obamacare right now, that it’s difficult to decide which story to include here as single item of “bad news.” There’s this story, in which the Financial Times reports that the new Obamacare exchange health care plans will exclude top hospitals, “including two world-renowned cancer centers.” Just to show you how far the medical care industry needs to go before it can get to where the tech industry is, note that the Financial Times says that “some hospital administrators” are worried about this development and “see the change as an unintended consequence of the ACA.”

You don’t need the equivalent of an Edward Snowden to reveal the true agenda of big government in medicine: the history and very nature of socialized medicine tells us to expect developments like this. And yet hospital administrators, people who should know the industry, and who have already been dealing with government intervention in it, see this as an “unintended consequence”? And then there’s the woman who heads government relations for the Mayo clinic, who says she’s concerned that NOW “the full spectrum from primary to top speciality care, [is becoming] commoditized.” Can someone please tell this woman that the whole reason Obamacare was passed in the first place is because a bunch of politicians whined that health care was too much of a commodity, and that the government needed to come in and fix that? Of course what she means is that, now with additional government involvement in the health care industry, costs have increased even more, making top quality healthcare something fewer and fewer will be able to afford.

And then there’s this story, in which an Obamacare Architect admits that if we’d like to “keep our doctor,” then we’ll just have to pay a lot more to do so. And this story, about the errors in the Healthcare.gov website forms, errors so significant and pervasive that one in four Americans who enrolled at the website in October and November may not even have health insurance come January 1!

Thankfully there is one segment of the health care industry that seems to be waking up to the truth about Obamacare–right here on the left coast! Richard Pollock of the Washington Examiner reports that “An estimated seven out of every 10 physicians in deep-blue California are rebelling against the state’s Obamacare health insurance exchange and won’t participate….” Apparently California doctors just learned in September of this year that their compensation rates for caring for exchange patients would be pegged to California’s Medicaid program–a program that has one of the lowest compensation rates in the country. To expect doctors who live in a state with one of the highest costs of living to accept one of the lowest compensation rates for their work is unconscionable. It’s no surprise that some doctors are considering not just refusing to participate in the exchanges, but, according to Dr. Theodore M. Mazer, a San Diego ENT doctor interviewed by the Examiner, they are also considering retiring early. Moreover, the Examiner reports, many doctors have been listed as participants in Obamacare plans on exchange websites without their permission! Covered California, which alleges that 85% of doctors will be participating in the exchanges, could not be reached for comment on the accuracy of that figure, or of the doctor listings on the exchange web sites.

Kudos to the doctors in California who are standing up for their rights and boycotting the exchanges. Shame on Covered California for concealing doctors’ compensation rates until the last minute, for trying to manipulate doctors into participating without giving them that information and for, apparently, lying about which doctors are participating in exchange plans. This is the sort of behavior that would get a private company brought before an alphabet-soup agency for investigation, fines, etc. I hope California’s doctors won’t let them get away with it.

*FYI, I’ve submitted a much shorter version of my forthcoming law review article on the third-party doctrine to a major blog for publication. As soon as it’s published, I’ll let everyone know. I hope it can have some influence on the debate as well.

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