ACS National Convention
June 13 - 15, 2013
Washington D.C.
Register Now!

Login:

government surveillance

October 31, 2012
Unchecked Spying
Guest Post
By Professor David D. Cole, Professor of Law, Georgetown Law

What if the government was tapping your phone unconstitutionally and there was nothing you could do about it? You’d be living in the United States of America, at least as understood by the Justice Department. Solicitor General Donald Verrilli, Jr., argued in the Supreme Court on Monday, October 29, that, for all practical purposes, the government’s authority to intercept Americans’ international phone calls and emails could not be challenged by the very people most likely to be harmed by it – lawyers, journalists, and human rights activists who regularly engage in such international communications on the very subjects and with the very people the government is likely to be monitoring. Resolution of the case, Clapper v. Amnesty International, may determine whether the most expansive government spying program ever authorized by Congress will be subject to adversarial constitutional review.

The Bush administration famously argued that the president’s actions in “engaging the enemy” in the “war on terror” could not be limited by the other branches. It used that argument to justify a secret warrantless wiretapping program run by the National Security Agency that monitored United States citizens’ international communications, in contravention of a criminal statute. Richard Nixon similarly asserted, when asked by David Frost why he thought he could authorize warrantless wiretapping during the Vietnam War, that “if the President does it, that means it’s not illegal.” To his credit, President Obama has rejected these theories of uncheckable power. But in defending the most sweeping electronic surveillance authority Congress has ever enacted, he has sought a similar result by contending that, for all practical purposes, the surveillance cannot be challenged in court.

More
Tags:
Supreme Court, Search and seizure/Fourth amendment, Privacy rights, Constitutional Interpretation and Change, Clapper v. Amnesty International, David Cole, FISA Amendments Act of 2008, government surveillance, Guest Post, Solicitor General Donald Verrilli Jr.
October 20, 2011
Law Students Joining the Constitutional Conversation as Citizen Amicus
Guest Post

By Andrew Guthrie Ferguson, a professor at the University of the District of Columbia’s David A. Clarke School of Law

In an effort to educate law students, the American Bar Association’s Criminal Justice Section has established “The Citizen Amicus Project” which invites current law students to contribute their own insights to a current Supreme Court case now being decided. The goal of this brand new project is to encourage law students to contribute to a national dialogue on constitutional issues that are relevant to their lives.

The project exists as a web-based constitutional debate about ongoing Supreme Court cases. Similar to formal amicus briefs, the Citizen Amicus Project seeks input from interested parties to help resolve constitutional issues. The goal is to provide a focused opportunity for law students to contribute to a national legal question that affects law students.

This first iteration of the Citizen Amicus Project focuses on the Fourth Amendment. Under current Fourth Amendment doctrine many of the Supreme Court’s determinations turn on what society considers objectively “reasonable.” What is objectively reasonable, of course, is a contested issue, and law students can weigh in on this standard as well as any other subset of Americans.

More specifically, the 2011-2012 Project focuses on the Fourth Amendment questions arising out of warrantless GPS surveillance. Almost all law students own cell phones, computers, and GPS devices that can be tracked and, thus, personally can understand the liberty interests at stake in warrantless tracking.

In November, the Supreme Court will hear United States v. Jones a case that raises questions of whether warrantless GPS tracking violates the Fourth Amendment. In Jones, the Supreme Court will review two specific questions:
More
Tags:
Supreme Court, Privacy rights, Technology and I.P., Constitutional Interpretation and Change, government surveillance, Guest Post, Katz v. United States, United States v. Jones
September 29, 2011
Saving the Constitution from the War on Terror
BookTalk

Taking Liberties

The War on Terror and the Erosion of American Democracy

By:
Susan N. Herman

Available Here

By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School

The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.

The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done.

For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.

Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.

Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.

More
Tags:
Fidelity to the Constitution, Executive power, National security and civil liberties, Individual liberties, Separation of powers, Constitutional Interpretation and Change, Criminal Justice, Equality and Liberty, First Amendment, Separation of Powers and Federalism, ACLU, BookTalk, government surveillance, National Security Letters, PATRIOT Act, Susan Herman, War on Terror
June 2, 2011
Must We Trade Privacy for Security? The Battle Over Government Surveillance
BookTalk

Nothing to Hide

The False Tradeoff between Privacy and Security

By:
Daniel J. Solove

Available Here

By Daniel J. Solove, John Marshall Harlan Research Professor of Law at the George Washington University Law School. Solove will have a signing of his book at Politics & Prose in Washington, D.C. on July 9 at 6 p.m.

A battle is raging in Congress and the courts about various forms of government surveillance. Federal courts have reached conflicting conclusions about whether the Fourth Amendment provides any protection against GPS surveillance by the government. The government is pressing Congress to allow broad access to location information. And Senator Leahy recently introduced a bill to update the Electronic Communication Privacy Act (ECPA), the law that regulates government access to our Internet records, among other things.

The debate between privacy and security remains vigorous, and the outcome of this debate will have profound effects on the scope of government power for years to come. My book, Nothing to Hide: The False Tradeoff Between Privacy and Security, is about how we should have this debate. For a long time, pro-security proponents have been using a set of arguments that are skewing the debate toward the security side. My book is written to put some of these arguments to rest.

One of the prime examples of these arguments is one I refer to as the “All-or-Nothing Fallacy.” Many people contend that “we must give up some of our privacy in order to be more secure.” In polls, people are asked whether the government should track people with GPS or wiretap people’s communications if it will help catch terrorists. Many people readily say yes. They conduct a balancing between the government having powers to monitor terrorists and privacy. “We certainly want the government to be listening,” people say. “If there’s a terrorist running around, we want the government to be tracking that person.” It’s hard to disagree. In the balance, privacy loses.

But this is the wrong way to conduct the balance. Rarely does protecting privacy involve totally banning a security measure. So when civil libertarians call for greater protections against government access to Internet use records or when they argue the Fourth Amendment should protect against GPS surveillance, they are not proposing that the government can never get its hands on the records or can never use GPS to monitor people. It’s not all-or-nothing. Instead, privacy protection merely means that these forms of surveillance should be regulated by requiring the government to justify before a court that it has probable cause to believe the surveillance will reveal evidence of criminal activity.

What does this mean for balancing privacy and security?
More
Tags:
National security and civil liberties, Privacy rights, Electronic privacy, Economic, Workplace and Environment Regulation, Equality and Liberty, BookTalk, government surveillance