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US Politics & Gov'tÂ
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How to Protect Ourselves on Social Networks and From Data Collection Systems of Governments and Corporations
Society & CultureÂ
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Edward Snowden laid everything out: The NSA is watching us online and on our phones. Itâs corrupting security to break the fabric of the Internet. The overreaching surveillance creates a climate of fear, chills free speech and violates our basic human rights â and it operates without any meaningful oversight.
But a movement is building to change all this. And we're about to take the next step.
Join us on Saturday, October 26 â the 12th anniversary of the signing of the U.S. PATRIOT Act â with thousands of people from across the political spectrum in Washington, D.C. to protest mass surveillance.
At the Stop Watching Us rally on Oct. 26, weâll remind our elected officials that they work for us, not the NSA, and that they must reform the laws that have led to the NSAâs abuses and to hold the NSA accountable for its anti-democratic programs.
More than half a million of us have already spoken out since we first learned about the NSAâs unconstitutional surveillance by signing our petition, and dozens of members of Congress have stood up to introduce bills that would reign in the NSA.
But these bills -- and our voices â need to coalesce as a movement to end this spying. October 26 is our chance to show the country that this isnât a small issue, and we wonât go away until itâs fixed â and that means going to Washington, DC at the end of October.
Weâre not doing this alone â weâre organizing this rally as Stop Watching Us â a diverse coalition of more than 100 public advocacy organizations and companies from across ideological lines, including both us at Demand Progress, as well as the ACLU, Access, the Electronic Frontier Foundation, FreedomWorks, Fight for the Future, Free Press, Mozilla, Reddit, and Restore the Fourth.Â
See you soon,
British Police is developing the "invisible surveillance" program and in the coming year cities will be monitored by the use of unmanned aerial vehicles. They will patrol over the city in 6 km altitude and will record violations of law.
The company "BAE Systems", by the orders of police, is developing such aircrafts; they are already called as a "revolutionary" crime preventing technique. (Source newspaper "The Guardian")
Unlike in Afghanistan and other countries, the use of military unmanned aerial vehicles (UAVs, Unmanned Aerial Vehicle) is for purposes like destruction of intelligence and target acquisition, the UAVs for police will be purely for civilian uses.
These aircrafts, which are invisible from land, will be able to simultaneously carry many different purposes and surveillance tasks like: monitor serious traffic offenses, control the activities of protesters and monitor anti-social behavior of urban streets, "catch" agricultural technology thieves, vandalism, etc.
The first UAV prototype, filled with high-definition video cameras and other monitoring equipment kits, will rise up the air this year.
It is reported that BAE Systems' machines will be able to rise and descend themselves, patrol in the air up to 15 hours. These UAVs will be programmed to perform specific police operations for example: automatically withdraw from the patrol route, if it detects suspicious activity on earth, or, at the same time, meet the different intelligence tasks. High-definition video cameras, radar and infrared sensors will be used in such aircrafts. These UAVs will also monitor the shipping of the country's coasts and the Channel, trying to detect the illegal immigrants entering France. It is reported that the aircrafts will be used for automatic search and rescue operations. British police expect that a national monitoring program by UAVs will be fully launched in 2012 during the London Olympic Games.
One could argue that such type of military-style spy drones will be violating the privacy rights of civilian people. Such type of invisible surveillance brings us one step closer to fully automated law enforcement which can be achieved in the near future.
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Real ID has reared its ugly head again, this time in the form of S.1261, Sen. Daniel Akaka's (D-Hawaii) PASS ID Act in the Senate. While this bill stems from a sincere attempt to fix the unworkable Real ID Act of 2005, PASS ID actually reinstitutes many of Real IDs problems, and in some cases makes them even worse.
The Real ID Act mandated that states turn state drivers licenses into a genuine national identity card, thereby imposing numerous new burdens on taxpayers, citizens, immigrants, and state governments -- while doing nothing to protect against terrorism. As a result, 24 states have enacted anti-Real ID bills or resolutions and the Department of Homeland Security has been forced to delay the acts implementation.
Like Real ID, PASS ID will be a true national ID card with serious privacy and constitutional problems. The Akaka legislation will burden travelers by requiring a PASS ID-compliant license to board airplanes. It will burden certain religious minorities by requiring digital photographs on each license. The PASS ID Act will also facilitate identity theft by mandating that copies of all identity source documents be retained, creating an irresistible trove of personal information.
Real ID cannot be solved by tinkering around the edges of the act. Instead, the entire unworkable system must be scrapped and replaced with a system that does not endanger Americans privacy and civil liberties.
Take action today. Ask your senators to oppose PASS ID.
Several advocacy groups disagree that the proposed EDLs will improve migratory efficiency or security. Border agents still must examine the individuals in any vehicle at a border; at most a few seconds will be shaved off individual crossings if border agents do not have to collect drivers licenses. Any timesavings depend on passive readers functioning normally at border crossing. These readers are susceptible to covert denial of service attacks, which can disable the reader. In instances where a reader is disabled, an individuals EDL is malfunctioning (i.e. not transmitting its identifier), or individuals are not using EDLs, there will be no timesavings benefit. Moreover, it is relatively easily to clone, or copy, an EDLs RFID identifier using consumer products available electronics stores. The ease that this can be done with negates the suggestion that the RFID in EDLs can assist border agents in guaranteeing that EDLs are state-issued; the ease of mimicking identifiers will require border agents to inspect licenses manually and guarantee their legitimacy to maintain border security.
Personally Identifiable Information and Your Privacy
Canadas provincial governments suggest that radio-shielding sleeves will limit the EDLs emissions individual citizens will be required to be mindful to safeguard their own privacy, rather than government integrating privacy protections into the identity documents that they are providing to the public. In addition, they claim that because the unique identifier emitted from an ELD is randomly generated that it does not infringe on citizens privacy. In holding this position concerning EDL identifiers, the provincial governments are actively ignoring the recommendations and warnings from Canadas provincial information and privacy commissioners, and their federal counterpart. Indeed, the Office of the Privacy Commissioner of Canada has noted that if an RFID identifier could act as a proxy for an individual were it associated with a particular individual, then the identifier itself becomes classified as ersonal information. Given that the identifier in each EDLs is intended to be associated with a particular individual it is clearly deserving of the same protection as other pieces of personal information. This mandates that some form of privacy enhancing technology, such as encryption, be implemented before making EDLs available to the public. Through encrypting, or otherwise securing, the RFID identifier Americans and Canadians can be assured that EDLs will not experience instances of function creep that would violate their reasonable expectations of privacy.
Encryption, Function Creep, and Tracking Individuals
The particular RFID technical standard the American government has chosen for EDLs (EPC Gen-2) cannot be secured using encryption that would adequately limit the risks of third parties capturing the identifier. This should, but does not seem to, be slowing provinces and states from issuing drivers licenses that emit personal information whenever the license holder is within range of a reader device. As a result, anyone with reader equipment can collect the identifier associated with a license holder and correlate it with whatever biometric, consumer, or other data they have access to. This surveillance can be performed without a license holder ever being made aware that the number was captured, or that it was associated with other personal information. Encryption would limit who could read the identifier, thus limiting the risks of function creep.
Drivers licenses hold incredibly detailed personal information, and when that information is combined with an RFID identifier it is possible to monitor individuals movements. When currently entering a nightclub, as an example, it is commonplace for a bouncer to swipe your license to ensure that it is valid. Few realize that nightclubs commonly sell the information they collect from licenses to third parties. When correlating the license information with an RFID identifier it is possible for those third parties to clearly identify people as they move in society. In addition, once individuals receive an EDL, retail facilities more generally can correlate the number with information they can associate with the individual associated with the number (e.g. What are their shopping habits? What stores do they visit? Do they travel a great deal? What identifiers/people are commonly near to them?), massively expanding the possibilities for private surveillance of citizens. Given present data sharing arrangements, this data can then be transferred to Canadian and American authorities, giving the state an excellent perception of where, exactly, their citizens are in their daily activities. The possibilities of surveillance combined with the inadequate government rotections mean that EDLs, as presently planned, infringe upon citizens reasonable expectations to move through society without private and public bodies being able to comprehensively track their every movement. Governments should attend to the warnings uttered by Canadian privacy and information commissioners, and involve the public in any deliberations to institute EDLs, to limit the possibilities of EDLs being used to expand increasingly ubiquitous private and state surveillance of citizens movements.
Christopher Parsons is a PhD student in the Department of Political Science at the University of Victoria researching ubiquitous digital surveillance, and is a member of the New Transparency Project. Read other articles by Christopher.
From: LIBERTY CALLING IS READY!
Date: Oct 27, 2008 12:39 PM
http://www. dissidentvoice. org/2008/10/tracking-your-every-move-%e2%80%98enhancing%e2%80%99-driver%e2%80%99s-licenses-at-the-cost-of-privacy/
Tracking Your Every Move: Enhancing Drivers Licenses at the Cost of Privacy
by Christopher Parsons / October 27th, 2008
The potential for ubiquitous surveillance that emerges with Enhanced Drivers Licenses (EDLs) could only be imagined by the Stasi in Communist East Germany, but is a genuinely looming specter for contemporary North American democracies. Provincial and state governments in North America are proposing to enhance drivers licenses in coming years by including a Radio Frequency Identification (RFID) chips in them. These enhanced licenses emit unique identifiers and will be optional when they are first available to the public, though they will be required to enter the United States using a drivers license beginning in July 2009. The proposed Enhanced Drivers Licenses (EDLs) are intended to be associated with border security, but are also accompanied with concerns linked to individuals reasonable expectations of privacy.
Radio Frequency Identifiers and Migratory Efficiency
Radio Frequency Identification (RFID) chips are inserted into products every year. They emit unique identifiers, and increase supply chain efficiencies by enabling the discrete tracking of every item in the chain. RFIDs used in supply chains are usually assive RFIDs; they lack a battery or fuel cell to power the radio transceiver, instead emitting their respective identifier whenever in proximity to a reader. When restricted to supply chain systems there is little worry that passive RFIDs will infringe on peoples expectations of privacy; neither cattle, nor courier envelops, nor vehicle tires have any expectations of privacy.
The Canadian and American governments are inserting these passive RFID chips into EDLs. As it stands, RFID-enabled license will emit a random identifier whenever it comes into a reader devices range. The number is unrelated to any other biometric information (e.g. birth date, color of eyes, height, first and last name, etc.) but is correlated with Canadian and American border-security databases. Whenever a person reaches a Canada/America land border crossing they will enter a read zone. From this zone the EDL will emit its identifier, calling up the owners personal information on the border agents computer screen. This automatic data retrieval is intended to enhance border migration and security; migration by negating the need for the border agent to collect and scan identity documents, and security by establishing another measure to ensure that identity documents are state-issued.
Thank you for standing with the ACLU to tell Congress it's not acceptable to give away our rights. With your support, our newspaper ad will send a strong and clear message: we believe in freedom not fear! Please note, well do our best to get as many names as possible in the ad, but may not be able to fit every one. Now, we need your help to get as many voices as we can to make this message powerful. There has never been a more important moment to demonstrate to our leaders that our privacy is important to us. Can you take a moment to ask your friends to add their voices to our effort as well? Just cut and paste the following text into an email and send it to your friends. *********** Subject: Outrageous and un-American Hey, Did you know that Congress has signed away our right to privacy? Its true! By making FISA law, the President and Congress have made it legal for US agencies to spy on our text messages, email, and phone calls to people outside the US, without any cause, reason or warrant. Does that sound like a right to privacy to you? Help the ACLU overturn FISA by sharing your message of support now! *********** Thanks for taking a stand! The ACLU Online Team
Now, we need your help to get as many voices as we can to make this message powerful. There has never been a more important moment to demonstrate to our leaders that our privacy is important to us. Can you take a moment to ask your friends to add their voices to our effort as well? Just cut and paste the following text into an email and send it to your friends.
Subject: Outrageous and un-American
Did you know that Congress has signed away our right to privacy?
Its true! By making FISA law, the President and Congress have made it legal for US agencies to spy on our text messages, email, and phone calls to people outside the US, without any cause, reason or warrant. Does that sound like a right to privacy to you?
Help the ACLU overturn FISA by sharing your message of support now!
Thanks for taking a stand!
The ACLU Online Team/>/>
On FISA, Congress and President Bush betrayed their commitment to protecting the Constitution -- and people all over the country are expressing their outrage.
From the moment the ACLU announced our lawsuit challenging the new FISA law as a violation of the Constitution, weve seen a remarkable outpouring of pubic support.
The next step in our all-out campaign is a dramatic show of public outrage in this Thursdays edition of the New York Times.
Stand with us: add your name to our July 17th New York Times ad.
Our ad will show thousands upon thousands of names streaming across a full page of the New York Times -- making it clear just how determined people all across the nation are to keep fighting for our freedom.
The ACLU is challenging this dangerous new law directly in the courts. But, equally important, we must let Congress know that when they betray the trust of the American voters, theyll hear from you in the court of public opinion.
Send Congress and President Bush a powerful message: democracy is about the government listening, not listening in. And next time, stand up for our rights.
The deadline for submitting our ad to the New York Times is only 24 hours away. Well do our best to get as many names as possible in the ad, but may not be able to fit every one. Act quickly. Sign up now in support of our lawsuit.
In defense of freedom,
Anthony D. Romero
P.S. This is one of those times when passing on an email to others really counts. Please get as many friends as possible to sign this ad. The broader our support, the sooner we reclaim our freedom.
Information Sought in Response to Growing Complaints of Harassment at U.S. Borders
San Francisco - The Asian Law Caucus (ALC) and Electronic Frontier Foundation (EFF) filed suit today against the U.S. Department of Homeland Security (DH for denying access to public records on the questioning and searches of travelers at U.S. borders. Filed under the Freedom of Information Act, the suit responds to growing complaints by U.S. citizens and immigrants of excessive or repeated screenings by U.S. Customs and Border Protection agents.
ALC, a San Francisco-based civil rights organization, received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers' books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. When individuals complained, they were told, "This is the border, and you have no rights."
"When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation's doorstep," said Shirin Sinnar, staff attorney at ALC. "The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process."
ALC and EFF asked DHS to disclose its policies on questioning travelers on First Amendment-protected activities, photocopying individuals' personal papers, and searching laptop computers and other electronic devices. The agency failed to meet the 20-day time limit that Congress has set for responding to public information requests, prompting the lawsuit.
"The public has the right to know what the government's standards are for border searches," said EFF Staff Attorney Marcia Hofmann. "Laptops, phones, and other gadgets include vast amounts of personal information. When will agents read your email? When do they copy data, where is it stored, and for how long? How will this information follow you throughout your life? The secrecy surrounding border search policies means that DHS has no accountability to America's travelers."
When Nabila Mango, an American citizen and San Francisco therapist, returned from a trip to the Middle East in December, customs agents at San Francisco International Airport asked her to name every person she had met and every place she had slept during her travels. They also searched her Arabic music books, business cards, and cell phone, and may have photocopied some of her papers.
"In my 40 years in this country, I have never felt as vulnerable as I did during that interrogation," Mango said. "I want to find out whether my government is keeping files on me and other Americans based on our associations and ideas."
Amir Khan, an IT consultant from Fremont, California and a U.S. citizen, is stopped each time he returns to the country. Customs officials have questioned him for a total of more than 20 hours and have searched his laptop computer, books, personal notebooks, and cell phone. Despite filing several complaints, Khan has yet to receive an explanation of why he is repeatedly singled out.
"One customs officer even told me that no matter what I do, nothing would improve," said Khan. "Why do I have to part with my civil liberties each time I return home?"
For a copy of the complaint:
Electronic Frontier Foundation
Asian Law Caucus
WASHINGTON - Nabila Mango, a therapist and a U.S. citizen who has lived in the country since 1965, had just flown in from Jordan in December when, she said, she was detained by U.S. Customs officers and her cell phone was taken from her purse. Her daughter, waiting for her outside San Francisco International Airport, tried repeatedly to call her during the hour and a half she was questioned. But after her phone was returned, Mango saw that records of her daughters' calls had been erased.
A few months earlier in the same airport, a tech engineer returning from a business trip to London objected when a federal agent asked him to type his password into his laptop computer. "This laptop doesn't belong to me," he said. "It belongs to my company." Eventually, he agreed to log on and stood by as the officer copied the Web sites he had visited, said the engineer, a U.S. citizen who spoke on the condition of anonymity for fear of calling attention to himself.
The seizure of electronics at U.S. borders has prompted protests from travelers who say they now weigh the risk of traveling with sensitive or personal information on their laptops, cameras or cell phones. In some cases, companies have altered their policies to require employees to safeguard corporate secrets by clearing laptop hard drives prior to international travel.
Today, the Electronic Frontier Foundation and Asian Law Caucus, two civil liberties groups in San Francisco, are filing a lawsuit to force the government to disclose its policies on border searches, including what rules govern the seizing and copying of the contents of electronic devices. They also want to know the boundaries for asking travelers about their political views, religious practices and other activities potentially protected by the First Amendment. The question of whether border agents have a right to search electronic devices without suspicion of a crime already is under review in the federal courts.
The lawsuit was inspired by some two dozen cases, 15 of which involved searches of cell phones, laptops, MP3 players and other electronics. Almost all involved travelers of Muslim, Middle Eastern or South Asian background, many of whom, including Mango and the tech engineer, said they are concerned they were singled out because of racial or religious profiling.
A U.S. Customs and Border Protection spokeswoman, Lynn Hollinger, said customs officers do not engage in racial profiling "in any way, shape or form." She said a laptop may be seized if it contains information possibly tied to terrorism, narcotics smuggling, child pornography or other criminal activity.
The Association of Corporate Travel Executives, which represents 2,500 business executives in the United States and abroad, said it has tracked complaints from several members whose laptops have been seized and their contents copied before usually being returned days later.
The U.S. government has argued in a pending court case that its authority to protect the country's border extends to looking at information stored inside electronic devices. In border searches, it regards a laptop as no different from a suitcase.
As more and more people travel with laptops and BlackBerrys and cell phones, the government's laptop-equals-suitcase position is raising red flags.
"It's one thing to say it's reasonable for government agents to open your luggage," said David Cole, a law professor at Georgetown University. "It's another thing to say it's reasonable for them to read your mind and everything you have thought over the last year."
For the next two days, I will join with my colleagues from around the world to inform Canadian, American, and world leaders about new surveillance technologies that put us all at risk. I will be speaking in Montreal, Canada at the following events:
International Conference of Data Protection and Privacy
Organized by the Office of the Privacy Commissioner of Canada
September 25 to 28, 2007
Civil Society Privacy Workshop: Privacy Rights in a World Under Surveillance
Organized by the International Civil Liberties Monitoring Group
Tuesday, September 25, 2007
In my panel talks, I will emphasize the importance of free markets and consumer action as the solution to the "privacy problem." I will ask regulators to give consumers the tools we need to act in our own best interest -- tools like clear labels on all items tagged with RFID.
I will remind decision makers that we have a right to go about our business in peace without corporate and government busybodies remotely pawing through our purses and backpacks. I will tell them that we don't want authoritarians, bureaucrats, ethically challenged corporations, or tech-savvy criminals to track us around the clock -- or at all.
Finally, I will call for an end to the cozy lobbyist-regulator
relationships that have undermined the work of citizen-activists worldwide. Although companies like IBM, developer of the RFID-reading "Person Tracking Unit," may have deeper pockets and fewer scruples than the citizens it proposes to spy on, we have greater numbers and far greater passion.
Below is a press release from the Office of the Privacy Commissioner of Canada announcing the event. You will note that I have the dubious distinction of being mentioned in the same paragraph as Michael Chertoff, Secretary of the U.S. Department of Homeland Security. When I see him, I'll send him your regards -- and ask why he is so intent on creating a police state in America.
Wish me well!
Katherine Albrecht, Ed.D.
Media Advisory - International privacy experts meet in Montreal
OTTAWA, Sept. 24 /CNW Telbec
The world's top privacy experts are meeting in Montreal this week to explore emerging new threats to privacy.
The Office of the Privacy Commissioner of Canada is hosting the 29th International Conference of Data Protection and Privacy Commissioners, the key international privacy event each year, from September 25th to 28th.
Workshops will address privacy in the context of public safety,
globalization, Radio Frequency Identification, children and the
Internet, location-based tracking, data mining, Internet crime and many other topics. Leading international experts on all of these topics are attending the conference.
Speakers include US Homeland Security Secretary Michael Chertoff, who will give a keynote address on privacy and public security; Google global privacy counsel Peter Fleischer; author and privacy and security expert Bruce Schneier, prominent consumer privacy advocate Katherine Albrecht as well as global privacy campaigners such as Simon Davies of Privacy International.
The conference program, full list of speakers and backgrounder
describing conference topics in more detail are available at
For further information: Colin McKay, Office of the Privacy Commissioner of Canada, (613) 995-0103, firstname.lastname@example.org
CASPIAN (Consumers Against Supermarket Privacy Invasion and Numbering) is a grass-roots consumer group fighting retail surveillance schemes since 1999 and irresponsible RFID use since 2002. With thousands of members in all 50 U.S. states and over 30 countries worldwide, CASPIAN seeks to educate consumers about marketing strategies that invade their privacy and encourage privacy-conscious shopping habits across the retail spectrum.
The ACLU is demanding the shut-down of the Department of Homeland Security’s (DH illegal Automated Targeting System (AT program. The ATS program violates a congressional mandate barring DHS from assigning risk levels to ordinary Americans through secret criteria and computer algorithms intended to calculate whether ordinary Americans are “security risks.”
The program “violates every American’s right to privacy," said Barry Steinhardt, director of the ACLU Technology and Liberty Program. "The judgments about Americans calculated by ATS will be stored for years, and we have no idea how they may be used in the future. The benefit to the government is extremely questionable, but the consequences for Americans are simply dangerous."
In multiple recent appropriations votes, lawmakers have forbidden DHS from developing or testing any program that uses algorithms to calculate the security risks of ordinary Americans whose names are not already on a watch list. ATS ranks citizens using unknown but inevitably imprecise algorithms and draws from databases with known errors. In addition, security officials have said they cannot determine who will be a threat from the characteristics ATS uses.
The program was approved without public or congressional consideration. The government tracked cargo using a similar system, but Congress has repeatedly banned the use of such tracking techniques for human beings.
Learn more about the ATS program.
In a related case, the ACLU represented four librarians who are on the board of Library Connection, a library consortium in Connecticut. The consortium was served with an NSL and challenged both the letter and the accompanying gag. After many months of litigation in which a district court found the gag on Library Connection was unconstitutional, the government withdrew its demand for information and abandoned the gag order.
In addition, in June, the ACLU filed a lawsuit to enforce its Freedom of Information Act request to force the Department of Defense and the CIA to turn over documents concerning those agencies' use of NSLs. That lawsuit is pending.
The ACLU is also working on the legislative front to fight the authorization of NSLs. In response to the March report from the Justice Department's Office of the Inspector General finding serious NSL abuses and making clear that the FBI cannot police itself, Representatives Jerrold Nadler (D-NY) and Jeff Flake (R-AZ) introduced a bill to fix the problems with the NSL power. The ACLU continues to urge Congress to enact this vital legislation.
A copy of today's court order can be found on line at:
More information on Doe v. Gonzales and NSLs is online at: www.aclu.org/nsl
Attorneys in the case are Jaffer, Goodman and Alexa Kolbi-Molinas of the ACLU, and Arthur Eisenberg of the NYCLU.
(9/6/2007) FOR IMMEDIATE RELEASE
NEW YORK - A federal court today struck down the amended Patriot Act's National Security Letter (NSL) provision. The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.
U.S. District Court Judge Victor Marrero wrote, "In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association - particularly of expression that is critical of the government or its policies - a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.
"As this decision recognizes, courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights. A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional," said Jameel Jaffer, Director of the ACLU's National Security Project.
NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or "gagged," from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.
"As the court recognized, there must be real, meaningful judicial checks on the exercise of executive power," said Melissa Goodman, an ACLU staff attorney on this case. "Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."
The case, Doe v. Gonzales, was originally filed in April 2004 on behalf of an anonymous Internet access company that had received an NSL. Although the FBI has since dropped its NSL demand, the John Doe has remained under a gag order. In September 2004, Judge Marrero initially struck down the Patriot Act NSL provision as unconstitutional, writing that "democracy abhors undue secrecy." The landmark ruling held that permanent gag orders imposed under the NSL law violated free speech rights protected by the First Amendment.
The government appealed Judge Marrero's first ruling, but Congress amended the NSL provision before the court issued a decision. In May 2006 the appeals court asked the district court to consider the constitutionality of the amended law. In a concurring opinion, Judge Richard Cardamone strongly criticized the government for continuing to argue that a permanent ban on speech would be permissible under the First Amendment.
In his latest decision, Judge Marrero cited the slavery and internment cases Plessy v. Ferguson and Korematsu v. United States: "These examples, however few in number, loom large in proportions of the tragic ill-effects felt in the wake of the courts' yielding fundamental ground to other branches of government on the constitutional role the judiciary must play in protecting the fundamental freedoms of the American people. Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises of governmental power unchecked by judicial rulings appropriate to the occasion, the only thing left of the judiciary's function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights."
In its case, the ACLU and the NYCLU said that the gag provision has had significant effects on the John Doe plaintiff. John Doe was prevented from participating in the contentious Patriot Act reauthorization debate that raged across the nation in late 2005 and early 2006. Even though Doe had firsthand knowledge of this sweeping FBI power, he could not speak about the fact that he had received an NSL, divulge the breadth of the letter, or discuss the ramifications on his business relationships.
"The courts play an important role in balancing the requirements of national security against the constitutional protections that safeguard our basic freedoms and liberties," said Arthur Eisenberg, Legal Director of the NYCLU. "We are delighted that the court fulfilled that important function in this case."
While reports previously indicated a hundred-fold increase to 30,000 NSLs issued annually, an extraordinary March 2007 report from the Justice Department's own Inspector General puts the actual number at over 143,000 NSLs issued between 2003 and 2005. The same investigation also found serious FBI abuses of the NSL power and numerous potential violations of the law.
EFF's FLAG Project aims to expose the government's expanding use of new technologies that invade Americans' privacy. Through Freedom of Information Act (FOIA) requests, the project will help protect individual liberties and hold the government accountable.
National security and law enforcement demand some level of government secrecy, but too much secrecy enables abuses of power. The Justice Department's cell phone tracking without probable cause, the NSA's illegal spying program, and other recent privacy-invasive initiatives make this clear.
While radically enhancing its technological ability to monitor lawful activity and the details of our lives, the government has also actively attempted to limit public scrutiny in recent years. As one study found in 2005, government secrecy "continues to expand across a broad spectrum of activities, including the courts, new private inventions, and the scientific and technical advice the government receives."
The public deserves to know what the government is doing, so that it can keep abuses of power in check and challenge violations of privacy. To those ends, EFF will submit requests under the Freedom of Information Act, a statute that forces the government to disclose details about its activities. Our requests will focus on government collection and use of information about Americans, the increasing cooperation between the government and the private sector, and federal agencies' development and use of new information technologies. EFF will make this information available to the public, the media, and policymakers. EFF will also strategically file FOIA lawsuits against government agencies to develop existing case law that will benefit all FOIA requesters.
Do you have an idea for a FOIA request EFF should make? If so, send us a message to email@example.com.FOIA CasesFOIA Lawsuit re: National Security Letters
April 10, 2007
February 27, 2007
- FOIA complaint filed against DOJ for disclosure of court orders "authorizing" continuation of NSA domestic surveillance program
- Press Release: EFF Lawsuit Seeks Release of Secret Court Orders on Electronic Surveillance
January 30th, 2007
- FOIA complaint filed against the Department of Defense [PDF, 1M]
- Press Release: Surveillance of Soldiers' Blogs Sparks EFF Lawsuit
Nov 21, 2006
- FOIA complaint filed against DHS over airline passenger data [PDF, 228K]
- Press Release: EFF Files Suit for Answers About New International Air Passenger Data Deal
Oct 17, 2006
Oct 3, 2006
- FOIA Request to FBI for Information on Electronic Surveillance Systems
- FOIA Complaint About Request for Information on Electronic Surveillance Systems
- The Freedom of Information Act
- Freedom of Information Act Legislative History
- Department of Justice FOIA Reference Materials
- Citizens' Guide on Using the Freedom of Information Act and Privacy Act of 1974 to Request Government Records From the House Committee on Government Reform, via the Federation of American Scientists
- Federation of American Scientists Project on Government Secrecy
- National Security Archive
- EFF Freedom of Information (FOIA) & Open Government Archive
- 1. History
- 2. Critiques of Privacy
- 3. Views on the Meaning and Value of Privacy
- 4. Privacy and Technology
- Other Internet Resources
- Related Entries
This post was modified from its original form on 24 Jul, 15:33
The term “privacy” is used frequently in ordinary language as well as in philosophical, political and legal discussions, yet there is no single definition or analysis or meaning of the term. The concept of privacy has broad historical roots in sociological and anthropological discussions about how extensively it is valued and preserved in various cultures. Moreover, the concept has historical origins in well known philosophical discussions, most notably Aristotle's distinction between the public sphere of political activity and the private sphere associated with family and domestic life. Yet historical use of the term is not uniform, and there remains confusion over the meaning, value and scope of the concept of privacy.
Early treatises on privacy appeared with the development of privacy protection in American law from the 1890's onward, and privacy protection was justified largely on moral grounds. This literature helps distinguish descriptive accounts of privacy, describing what is in fact protected as private, from normative accounts of privacy defending its value and the extent to which it should be protected. In these discussions some treat privacy as an interest with moral value, while others refer to it as a moral or legal right that ought to be protected by society or the law. Clearly one can be insensitive to another's privacy interests without violating any right to privacy, if there is one.
There are several skeptical and critical accounts of privacy. According to one well known argument there is no right to privacy and there is nothing special about privacy, because any interest protected as private can be equally well explained and protected by other interests or rights, most notably rights to property and bodily security (Thomson, 1975). Other critiques argue that privacy interests are not distinctive because the personal interests they protect are economically inefficient (Posner, 1981) or that they are not grounded in any adequate legal doctrine (Bork, 1990). Finally, there is the feminist critique of privacy, that granting special status to privacy is detrimental to women and others because it is used as a shield to dominate and control them, silence them, and cover up abuse (MacKinnon, 1989).
Nevertheless, most theorists take the view that privacy is a meaningful and valuable concept. Philosophical debates concerning definitions of privacy became prominent in the second half of the twentieth century, and are deeply affected by the development of privacy protection in the law. Some defend privacy as focusing on control over information about oneself (Parent, 1983), while others defend it as a broader concept required for human dignity (Bloustein, 1964), or crucial for intimacy (Gerstein, 1978; Inness, 1992). Other commentators defend privacy as necessary for the development of varied and meaningful interpersonal relationships (Fried, 1970, Rachels, 1975), or as the value that accords us the ability to control the access others have to us (Gavison, 1980; Allen, 1988; Moore, 2003), or as a set of norms necessary not only to control access but also to enhance personal expression and choice (Schoeman, 1992), or some combination of these (DeCew, 1997). Discussion of the concept is complicated by the fact that privacy appears to be something we value to provide a sphere within which we can be free from interference by others, and yet it also appears to function negatively, as the cloak under which one can hide domination, degradation, or physical harm to women and others.
This essay will discuss all of these topics, namely, (1) the historical roots of the concept of privacy, including the development of privacy protection in tort and constitutional law, and the philosophical responses that privacy is merely reducible to other interests or is a coherent concept with fundamental value, (2) the critiques of privacy as a right, (3) the wide array of philosophical definitions or defenses of privacy as a concept, providing alternative views on the meaning and value of privacy (and whether or not it is culturally relative), as well as (4) the challenges to privacy posed in an age of technological advance. Overall, most writers defend the value of privacy protection despite the difficulties inherent in its definition and its potential use to shield abuse. A contemporary collection of essays on privacy provides strong evidence to support this point (Paul et al., 2000). The contributing authors examine various aspects of the right to privacy and its role in moral philosophy, legal theory, and public policy. They also address justifications and foundational arguments for privacy rights.
The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.
In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.
Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.
In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest's financial health. But Qwest's legal questions about the NSA request remained.
Unable to reach agreement, Nacchio's successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.
Contributing: John Diamond
The White House defended its overall eavesdropping program and said no domestic surveillance is conducted without court approval.
''The intelligence activities undertaken by the United States government are lawful, necessary and required to protect Americans from terrorist attacks,'' said Dana Perino, the deputy White House press secretary, who added that appropriate members of Congress have been briefed on intelligence activities.
From Capitol Hill:
Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, said he would call the phone companies to appear before the panel ''to find out exactly what is going on.''
Sen. Patrick Leahy of Vermont, the ranking Democrat on the panel, sounded incredulous about the latest report and railed against what he called a lack of congressional oversight. He argued that the media was doing the job of Congress.
''Are you telling me that tens of millions of Americans are involved with al Qaeda?'' Leahy asked. ''These are tens of millions of Americans who are not suspected of anything ... Where does it stop?''
The Democrat, who at one point held up a copy of the newspaper, added: ''Shame on us for being so far behind and being so willing to rubber stamp anything this administration does. We ought to fold our tents.''
The report came as the former NSA director, Gen. Michael Hayden - Bush's choice to take over leadership of the CIA - had been scheduled to visit lawmakers on Capitol Hill Thursday. However, the meetings with Republican Sens. Rick Santorum of Pennsylvania and Lisa Murkowski of Alaska were postponed at the request of the White House, said congressional aides in the two Senate offices.
Source: The Associated Press
In the case of the NSA's international call-tracking program, Bush signed an executive order allowing the NSA to engage in eavesdropping without a warrant. The president and his representatives have since argued that an executive order was sufficient for the agency to proceed. Some civil liberties groups, including the American Civil Liberties Union, disagree.
The NSA's domestic program began soon after the Sept. 11 attacks, according to the sources. Right around that time, they said, NSA representatives approached the nation's biggest telecommunications companies. The agency made an urgent pitch: National security is at risk, and we need your help to protect the country from attacks.
The agency told the companies that it wanted them to turn over their "call-detail records," a complete listing of the calling histories of their millions of customers. In addition, the NSA wanted the carriers to provide updates, which would enable the agency to keep tabs on the nation's calling habits.
The sources said the NSA made clear that it was willing to pay for the cooperation. AT&T, which at the time was headed by C. Michael Armstrong, agreed to help the NSA. So did BellSouth, headed by F. Duane Ackerman; SBC, headed by Ed Whitacre; and Verizon, headed by Ivan Seidenberg.
With that, the NSA's domestic program began in earnest.
AT&T, when asked about the program, replied with a comment prepared for USA TODAY: "We do not comment on matters of national security, except to say that we only assist law enforcement and government agencies charged with protecting national security in strict accordance with the law."
In another prepared comment, BellSouth said: "BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority."
Verizon, the USA's No. 2 telecommunications company behind AT&T, gave this statement: "We do not comment on national security matters, we act in full compliance with the law and we are committed to safeguarding our customers' privacy."
Qwest spokesman Robert Charlton said: "We can't talk about this. It's a classified situation."
In December, The New York Times revealed that Bush had authorized the NSA to wiretap, without warrants, international phone calls and e-mails that travel to or from the USA. The following month, the Electronic Frontier Foundation, a civil liberties group, filed a class-action lawsuit against AT&T. The lawsuit accuses the company of helping the NSA spy on U.S. phone customers.
Last month, U.S. Attorney General Alberto Gonzales alluded to that possibility. Appearing at a House Judiciary Committee hearing, Gonzales was asked whether he thought the White House has the legal authority to monitor domestic traffic without a warrant. Gonzales' reply: "I wouldn't rule it out." His comment marked the first time a Bush appointee publicly asserted that the White House might have that authority.
Similarities in programs
The domestic and international call-tracking programs have things in common, according to the sources. Both are being conducted without warrants and without the approval of the FISA court. The Bush administration has argued that FISA's procedures are too slow in some cases. Officials, including Gonzales, also make the case that the USA Patriot Act gives them broad authority to protect the safety of the nation's citizens.
The chairman of the Senate Intelligence Committee, Sen. Pat Roberts, R-Kan., would not confirm the existence of the program. In a statement, he said, "I can say generally, however, that our subcommittee has been fully briefed on all aspects of the Terrorist Surveillance Program. ... I remain convinced that the program authorized by the president is lawful and absolutely necessary to protect this nation from future attacks."
The chairman of the House Intelligence Committee, Rep. Pete Hoekstra, R-Mich., declined to comment.
One company differs
One major telecommunications company declined to participate in the program: Qwest.
According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.
Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.
The government is collecting "external" data on domestic phone calls but is not intercepting "internals," a term for the actual content of the communication, according to a U.S. intelligence official familiar with the program. This kind of data collection from phone companies is not uncommon; it's been done before, though never on this large a scale, the official said. The data are used for "social network analysis," the official said, meaning to study how terrorist networks contact each other and how they are tied together.
Carriers uniquely positioned
AT&T recently merged with SBC and kept the AT&T name. Verizon, BellSouth and AT&T are the nation's three biggest telecommunications companies; they provide local and wireless phone service to more than 200 million customers.
The three carriers control vast networks with the latest communications technologies. They provide an array of services: local and long-distance calling, wireless and high-speed broadband, including video. Their direct access to millions of homes and businesses has them uniquely positioned to help the government keep tabs on the calling habits of Americans.
Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.
Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest. But AT&T and Verizon also provide some services — primarily long-distance and wireless — to people who live in Qwest's region. Therefore, they can provide the NSA with at least some access in that area.
Created by President Truman in 1952, during the Korean War, the NSA is charged with protecting the United States from foreign security threats. The agency was considered so secret that for years the government refused to even confirm its existence. Government insiders used to joke that NSA stood for "No Such Agency."
In 1975, a congressional investigation revealed that the NSA had been intercepting, without warrants, international communications for more than 20 years at the behest of the CIA and other agencies. The spy campaign, code-named "Shamrock," led to the Foreign Intelligence Surveillance Act (FISA), which was designed to protect Americans from illegal eavesdropping.
Enacted in 1978, FISA lays out procedures that the U.S. government must follow to conduct electronic surveillance and physical searches of people believed to be engaged in espionage or international terrorism against the United States. A special court, which has 11 members, is responsible for adjudicating requests under FISA.
Over the years, NSA code-cracking techniques have continued to improve along with technology. The agency today is considered expert in the practice of "data mining" — sifting through reams of information in search of patterns. Data mining is just one of many tools NSA analysts and mathematicians use to crack codes and track international communications.
Paul Butler, a former U.S. prosecutor who specialized in terrorism crimes, said FISA approval generally isn't necessary for government data-mining operations. "FISA does not prohibit the government from doing data mining," said Butler, now a partner with the law firm Akin Gump Strauss Hauer & Feld in Washington, D.C.
The caveat, he said, is that "personal identifiers" — such as names, Social Security numbers and street addresses — can't be included as part of the search. "That requires an additional level of probable cause," he said.
The usefulness of the NSA's domestic phone-call database as a counterterrorism tool is unclear. Also unclear is whether the database has been used for other purposes.
The NSA's domestic program raises legal questions. Historically, AT&T and the regional phone companies have required law enforcement agencies to present a court order before they would even consider turning over a customer's calling data. Part of that owed to the personality of the old Bell Telephone System, out of which those companies grew.
Ma Bell's bedrock principle — protection of the customer — guided the company for decades, said Gene Kimmelman, senior public policy director of Consumers Union. "No court order, no customer information — period. That's how it was for decades," he said.
The concern for the customer was also based on law: Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers' calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered.
The financial penalties for violating Section 222, one of many privacy reinforcements that have been added to the law over the years, can be stiff. The Federal Communications Commission, the nation's top telecommunications regulatory agency, can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of "violation." In practice, that means a single "violation" could cover one customer or 1 million.
NSA has massive database of Americans' phone calls
Updated 5/11/2006 10:38 AM ET
The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
QUESTIONS AND ANSWERS: The NSA record collection program
"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.
For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.
The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.
The sources would talk only under a guarantee of anonymity because the NSA program is secret.
Air Force Gen. Michael Hayden, nominated Monday by President Bush to become the director of the CIA, headed the NSA from March 1999 to April 2005. In that post, Hayden would have overseen the agency's domestic call-tracking program. Hayden declined to comment about the program.
The NSA's domestic program, as described by sources, is far more expansive than what the White House has acknowledged. Last year, Bush said he had authorized the NSA to eavesdrop — without warrants — on international calls and international e-mails of people suspected of having links to terrorists when one party to the communication is in the USA. Warrants have also not been used in the NSA's efforts to create a national call database.
In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," Bush explained, "one end of the communication must be outside the United States."
As a result, domestic call records — those of calls that originate and terminate within U.S. borders — were believed to be private.
Sources, however, say that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans. Customers' names, street addresses and other personal information are not being handed over as part of NSA's domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information.
Don Weber, a senior spokesman for the NSA, declined to discuss the agency's operations. "Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide," he said. "However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law."
The White House would not discuss the domestic call-tracking program. "There is no domestic surveillance without court approval," said Dana Perino, deputy press secretary, referring to actual eavesdropping.
She added that all national intelligence activities undertaken by the federal government "are lawful, necessary and required for the pursuit of al-Qaeda and affiliated terrorists." All government-sponsored intelligence activities "are carefully reviewed and monitored," Perino said. She also noted that "all appropriate members of Congress have been briefed on the intelligence efforts of the United States."
CINCINNATI - A divided federal appeals court rejected a lawsuit Friday challenging President Bush’s domestic spying program without ruling on the issue of whether warrantless wiretapping is legal. In a 2-1 decision with Republican-appointed judges in the majority, a three-judge panel of the 6th U.S. Circuit Court of Appeals said the plaintiffs had no standing to sue because they couldn’t prove their communications had been monitored by the government.
The decision underscored the difficulty of challenging the anti-terrorism program in court because its secret nature prevents plaintiffs from obtaining surveillance information. The National Security Agency had refused to turn over information about the warrantless wiretapping that would have bolstered the court case.
“This is a Catch-22,” said Steven R. Shapiro, legal director of the American Civil Liberties Union, which filed the lawsuit. “I think what in effect they’re saying is that we can’t tell you whether you have been wiretapped because that’s a secret. And unless you know you’ve been wiretapped, you can’t challenge that program.”
The appeals court vacated a 2006 order by a lower court in Detroit, which had concluded that the warrantless surveillance authorized after the Sept. 11, 2001, terrorist attacks was unconstitutional.
Judge: Plaintiffs lacked standing
President Bush authorized warrantless monitoring of international telephone calls and e-mails to or from the United States when one party is believed to be a terrorist or to have terrorist ties. The government has kept details confidential, saying the case involved state secrets whose disclosure would threaten national security. While sidestepping the question of constitutionality, Judge Alice M. Batchelder and Judge Julia Smith Gibbons wrote that the plaintiffs lacked standing to sue without proof they were monitored by the government.
“The plaintiffs are ultimately prevented from establishing standing because of the state secrets privilege,” Gibbons wrote.
Judge Ronald Lee Gilman, a Democratic appointee, disagreed, saying the plaintiffs were within their rights to sue and that it was clear the surveillance program violated the Foreign Intelligence Surveillance Act of 1978. The government had said it sometimes needed to act without waiting for the secret Foreign Intelligence Surveillance Court, established by the 1978 law.
Earlier this year, the Bush administration said the eavesdropping program is now overseen by a special federal intelligence court, so the case was moot. But, by sidestepping the constitutionality of the surveillance program, the appeals court left open the possibility that Bush or another president could restart the program, and opponents contend that means the case remains relevant.
Legality of program still a question
The appellate decision didn’t address the legality of the wiretapping program or absolve the administration of complying with a congressional subpoena seeking more information, said Sen. Patrick Leahy, D-Vt., who is head of the Senate Judiciary Committee. “There is a dark cloud over the White House’s warrantless wiretapping program, and a full response to the outstanding subpoena from the Senate Judiciary Committee by this Administration would be a good start to clearing the air,” Leahy said in a statement.
The Justice Department and the White House were pleased with the outcome. “We have always believed that the District Court’s decision declaring the terrorist surveillance program unconstitutional was wrongly decided,” White House spokesman Tony Fratto said. Department of Justice spokesman Brian Roehrkasse said the surveillance program was “a vital intelligence program that helped detect and prevent terrorist attacks. It was always subject to rigorous oversight and review.”
Case farthest to proceed
The ACLU pursued the lawsuit on behalf of other groups, including lawyers, journalists and scholars who asserted that the government monitoring prevented them from doing their jobs properly. The suit was filed in January 2006, a month after the program’s existence became known publicly. Others have filed court challenges to the program, but none has gotten as far in the court system. Shapiro said the ACLU is considering all its legal options, including asking for a full-court hearing in the 6th Circuit or asking the U.S. Supreme Court to consider it. If the ACLU doesn’t pursue an appeal, the case would go back to the U.S. District Court in Michigan for dismissal. A law professor who has closely followed the case thinks it will be dropped. “The case is not moot because the government could continue the program at any time,” said Robert A. Sedler, a law professor at Wayne State University. “But because it’s not now in effect, the Supreme Court is not likely to hear it. It’s simply not an important case anymore.”
The states have passed laws in the past two months, saying the federal law has a steep cost and invades privacy by requiring 240 million Americans to get highly secure licenses by 2013. The 9/11 Commission urged the first standards for licenses to stop fraud and terrorists such as the Sept. 11 hijackers, who lied on residency statements to get licenses and state IDs.
Lawmakers in Maine, Montana, New Hampshire, Oklahoma, South Carolina and Washington say new standards would be expensive to implement and result in a national ID card that compromises privacy. The National Conference of State Legislatures estimates that it will cost states more than $11 billion.
State resistance has drawn criticism from the Homeland Security Department. "I cannot imagine a state official anywhere that would want to have to testify before Congress about … how their non-compliant licenses contributed to a terrorist attack," department spokesman Russ Knocke said.
Knocke said the federal government can't force states to comply. But he said each state's residents are likely to bring pressure on their local governments when they learn they'll be barred from boarding airplanes because their state's licenses don't meet federal standards.
Airline passengers can use other government photo identification, such as passports and military IDs.
Some lawmakers say any inconvenience is outweighed by the cost and potential privacy invasion for each state to create a photo database of license holders.
"The people of New Hampshire are adamantly opposed to any kind of 'papers-please' society reminiscent of Nazi Germany and Stalinist Russia," said Neal Kurk, a Republican state representative from New Hampshire. "This is another effort of the federal government to keep track of all its citizens."
The federal law requires everyone to renew licenses by 2013 with documents showing their Social Security number and home address, and that they are in the USA legally. State Sen. Larry Martin, a Republican from South Carolina, said the law will overwhelm states by requiring agencies to verify documents such as birth certificates.
The defiance by six states could force Congress to reconsider the law, said Barry Steinhardt of the American Civil Liberties Union. "You can't have a national ID card if the residents of six states won't have one," Steinhardt said.
Questions1. Assuming that there exists a general right of privacy, what sort of conduct to you think lies at its very center? What sort of conduct lies at its periphery? What sort of conduct should be considered outside of the protection of a reasonably interpreted right of privacy?
2. Is there a stronger basis in the Constitution for protecting personal privacy rights as opposed to personal economic rights, such as the liberty of contract recognized in Lochner v New York?
3. When the state burdens an important privacy right, what sort of justification should the state have to make to sustain its regulation? What arguments would be likely to convince the U. S. Supreme Court (unlike the Alaska Supreme Court) that the Constitution protects the right to possess obscene materials but not marijuana or other drugs?
4. Some state constitutions provide express protection for privacy. Would you favor including such a provision in your state's constitution? What wording would you suggest for a constitutional amendment protecting privacy?
5. The Constitution has been interpreted to protect the right to marry, as well as the right to live a homosexual lifestyle. Should it also be interpreted to protect the right of homosexuals to marry?
6. Are a person's choices with respect to personal appearance protected by the Constitution? Should the Constitution protect the right of students or police officers to wear their hair in any style they see fit? Why or why not? Would a tax on beards, such as the one adopted by Peter the Great, be constitutional?
7. The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause. In what respects is abortion a private matter, and in what respects might it not be? If you don't believe that the Constitution protects the decision to have an abortion, do you believe that it would prevent the government from forcing a woman to have an abortion and, if it would, what is the constitutional basis for that protection?
The Right to an Abortion
The Right to Marry
The Family & the Constitution
The Right to Die
Is Your Home Your Castle?
The most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis's dissent in Olmstead v. U. S. (1928):
"The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect."
Estelle Griswold, of the Planned Parenthood League, whose lawsuit led to the invalidation of a state law banning contraceptives.
Bill of Rights (and 14th Amendment) Provisions Relating to the Right of Privacy
(Privacy of Beliefs)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(Privacy of the Home)
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.
(Pivacy of the Person and Possessions)
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.
(More General Protection for Privacy?)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Liberty Clause of the Fourteenth Amendment
No State shall... deprive any person of life, liberty, or property, without due process of law.
Tyron Garner and John Lawrence (with their attorney), the gay men who successfully challenged Teaas's sodomy law.
In 1969, the Court unanimously concluded that the right of privacy protected an individual's right to possess and view pornography (including pornography that might be the basis for a criminal prosecution against its manufacturer or distributor) in his own home. Drawing support for the Court's decision from both the First and Fourth Amendments, Justice Marshall wrote in Stanley v Georgia:
"Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
The Burger Court extended the right of privacy to include a woman's right to have an abortion in Roe v Wade (1972), but thereafter resisted several invitations to expand the right. Kelley v Johnson (1976), in which the Court upheld a grooming regulation for police officers, illustrates the trend toward limiting the scope of the "zone of privacy." (The Court left open, however, the question of whether government could apply a grooming law to members of the general public, who it assumed would have some sort of liberty interest in matters of personal appearance.) Some state courts, however, were not so reluctant about pushing the zone of privacy to new frontiers. The Alaska Supreme Court went as far in the direction of protecting privacy rights as any state. In Ravin v State (1975), drawing on cases such as Stanley and Griswold but also basing its decision on the more generous protection of the Alaska Constitution's privacy protections, the Alaska Supreme Court found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home.
In more recent decades, the Court recognized in Cruzan v Missouri Department of Health (1990) that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right). In 2003, in Lawrence v Texas, the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy. Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution's protection for privacy:
"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'”
One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest. Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.
The future of privacy protection remains an open question. Justices Scalia and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees. The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed. The best bet is that the Court will continue to recognize protection for a general right of privacy.
The Right of Privacy
The Issue: Does the Constitution protect the right of privacy? If so, what aspects of privacy receive protection?
The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.
The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial. Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists. The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment. Polls show most Americans support this broader reading of the Constitution.
The Supreme Court, in two decisions in the 1920s, read the Fourteenth Amendment's liberty clause to prohibit states from interfering with the private decisions of educators and parents to shape the education of children. In Meyer v Nebraska (1923), the Supreme Court struck down a state law that prohibited the teaching of German and other foreign languages to children until the ninth grade. The state argued that foreign languages could lead to inculcating in students "ideas and sentiments foreign to the best interests of this country." The Court, however, in a 7 to 2 decision written by Justice McReynolds concluded that the state failed to show a compelling need to infringe upon the rights of parents and teachers to decide what course of education is best for young students. Justice McReynolds wrote:
"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
Two years late, in Pierce v Society of Sisters, the Court applied the principles of Meyer to strike down an Oregon law that compelled all children to attend public schools, a law that would have effectively closed all parochial schools in the state.
The privacy doctrine of the 1920s gained renewed life in the Warren Court of the 1960s when, in Griswold v Connecticut (1965), the Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples. Different justifications were offered for the conclusion, ranging from Court's opinion by Justice Douglas that saw the "penumbras" and "emanations" of various Bill of Rights guarantees as creating "a zone of privacy," to Justice Goldberg's partial reliance on the Ninth Amendment's reference to "other rights retained by the people," to Justice Harlan's decision arguing that the Fourteenth Amendment's liberty clause forbade the state from engaging in conduct (such as search of marital bedrooms for evidence of illicit contraceptives) that was inconsistent with a government based "on the concept of ordered liberty."