Topic: Law and Civil Liberties

TechLawJournal Parses Phone Company Denials

TechLawJournal has carefully parsed the statements issued by Verizon and BellSouth denying participation in the NSA spying program. I’ll quote TLJ liberally here, with permission.

Regarding the BellSouth statement, TLJ notes that it took three working days and two weekend days to prepare a three paragraph response. As to the substance:

BellSouth uses the phrases “customer calling information” and “customer calling records”. In contrast, the USA Today article uses the phrases “phone call records” and “domestic call records”. BellSouth associates the word “customer” with the word “record”. There is a difference between what USA Today wrote, and what BellSouth now denies.

BellSouth portrays the USA Today article as asserting that BellSouth provided customer identifying information combined with the customer’s call information. In fact, the USA Today article only asserts that BellSouth turned over call information. Moreover, the USA Today article points out the difference. It states that “Customers’ names, street addresses and other personal information are not being handed over as part of NSA’s domestic program”. The article added that “But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information.”

Thus, the BellSouth statement denies something that USA Today did not assert, and leaves undenied that which USA Today did actually assert.

Of course, it is another question whether BellSouth, in writing its statement, understood there to be a difference between “customer calling records” and “phone call records”, and intended its statement to constitute a non-denial.

On Verizon’s May 16 statement:

Verizon’s six paragraph statement is longer than BellSouth’s, but employs the same approach. It restates the assertions of USA Today, with variations, and then denies its restatements.

Verizon uses the phrases “customers’ domestic calls”, “customer phone records”, and “customer records or call data”. Like BellSouth, it adds the word “customer”.  USA Today wrote about “phone call records”, without the word “customer”.

Verizon does at one point deny that it provided “any call data”, but it then immediately follows this with the phrase “from those records”, which is a reference back to “customer phone records”. This leaves open the possibility that it provided “call data” that it retrieved from a database other that “customer phone records”.

This is helpful insight from a dogged, independent reporter.  And subscription rates are not too expensive either.

(Cross-posted from TechLiberationFront

Identification: Whom do People Trust?

Ask the average American where to go to get an identification card and they will tell you, of course, to go to the local Department of Motor Vehicles. Across the country, DMVs are the dominant source of identification cards, with perhaps the State Department in second because it issues passports. People who think about this carefully might realize that many corporations also issue identification cards.

So, with governments eclipsing all other issuers, who do you suppose Americans trust to issue identity credentials? 

Banks.

A Ponemon Institute study, funded by Unisys, has found that banking institutions are most trusted to issue and manage identity credentials (graph, page 6).  The least trusted organizations are police and law enforcement. 

Banks were trusted on every continent, and tax authorities were distrusted on every continent. Police authorities are distrusted deeply in the United States and Latin America, but not as much in Asia and Europe. Curiously, the postal service is trusted very highly in the United States, while registering little reaction, positive or negative, on other continents.

To avert a national ID, “identity management” is the way to go: cards, tokens, and devices that share only the information required for transactions. Who should be issuing those things? Banks and other private entities. 

More info and brilliant insight here.

(Cross-posted from TechLiberationFront)

Rapanos v. United States: The Blog

The Pacific Legal Foundation is the lead counsel in one of the biggest cases of the Supreme Court’s current term: Rapanos v. United States, a case involving egregious interference with private development by federal and state environmental regulators. In anticipation of the Court’s decision, PLF has started a blog on the case, which you can access here. For more Rapanos fun, read a short Wall Street Journal write-up about the story behind the case here. You can read the Cato Institute’s amicus brief in the case (written by yours truly) here.

Reflexive Militarism

Some have charged that President Bush’s plan to deploy 6,000 National Guardsmen to support roles along our border with Mexico constitutes “militarizing the border.” Well, sort of. But “security theater” is probably a better term. It’s a highly visible move designed to provide the appearance of increased security without actually increasing it, much like the use of guardsmen at the airports following September 11th.

In this case, the troops will be “operating surveillance systems, analyzing intelligence, installing fences and vehicle barriers, building patrol roads, and providing training,” according to the president’s speech Monday night. They will be under the command of the state governors, they will not have arrest authority, and they will not be involved in direct law enforcement activities, which means that there’s no objection based on the Posse Comitatus Act, the longstanding federal statute that restricts use of federal troops to “execute the laws.” On the whole, this is a far cry from some of the proposals for hard-core border militarization floating around on the right.

Yet the Bush administration does have a tendency, when faced with political trouble, to reach for the military. Trying to look decisive in the wake of Katrina last fall, the president asked for major revisions to Posse Comitatus twice in the space of a month, once to fight hurricanes and once to order military quarantines for Avian flu. Monday’s proposal is merely the latest iteration of the administration’s reflexive militarism, and it’s a comparatively mild one at that.

But here’s something a little more troubling than the upcoming exercise in security theater at the border. In the administration’s internal legal analysis, the Posse Comitatus Act may be vulnerable to going “poof,” as yet another statute touched by the Magic Scepter of Inherent Authority. There are a lot of bad ideas floating around about domestic militarization of the war on terror. If there’s another serious terror attack, that legal theory could be used to make some of those bad ideas happen.

Are Three Federalist Society Lawyers Threatening the Supreme Court?

In a monograph released yesterday—but not-quite-technically-endorsed by—the Federalist Society, leading NSA defenders Andrew McCarthy, David Rivkin and Lee Casey appear, Sopranos style, to issue veiled threats to the Supreme Court, warning the justices not put their dirty mitts on the NSA surveillance program, or else.

Here’s some of the evidence:

Page 44: MRC argue that the President has a duty to “fight back” against branches that encroach on his constitutional turf. Specifcially, they say:

the departments were not expected [by the Framers] to take intrusions [on their constitutional authority] lying down … . To the contrary, when the actions of one branch invaded another’s turf, the offended branch was expected to fight back – in truth, was obliged to do so if liberty and constitutional governance were to be vindicated.

Might that duty to “fight back” include a duty by the President (who is constitutionally “preeminent” and “supreme” in foreign affairs, they say) to fight against the incursions of the Supreme Court? Seemingly, the answer is yes, because …

Page 64: The Constitution “contemplates no role for the federal courts in connection with the political judgments whether to conduct surveillance to secure the nation against hostile outsiders.” If the President must “fight back” against other branches’ unconstitutional incursions, and courts have no constitutional authority over surveillance, then MRC seem to be saying the President must fight back not just against Congress but against the Supreme Court.

Page 89: That hint gains more force when MRC conclude by suggesting the Court is the enemy both of security and liberty: “[I]njecting unelected federal judges into the prototypically political arena of foreign intelligence collection,” where “the collective security of the Nation is paramount,” is the “antithesis” of “the protection of the individual and his liberties.” Indeed, (moving on to page 93) “it is not at all clear why Bush administration critics view federal judges as inherently more liberty-conscious than politically accountable executive branch officials.” That’s why, say MRC, “the notion that every single executive activity … has to be checked either by Congress or the judiciary, is absurd.”

In other words, they say, Court interference with the President is unconstituitonal, dangerous to public welfare, antithetical to the preservation of liberty, and simply absurd. The President, in turn, is “obliged” to fight back against other branches when constitutional principle, public welfare, and liberty is at stake. You can fill in the blank spaces: The tenor of the piece is a veiled threat, sotto voce, that the President has the right—indeed the constitutional and even moral duty—to ignore not just Congress but the Supreme Court in its conduct of NSA surveillance.

We are entering a new era of indefinite terrorist crisis. The stakes couldn’t be larger for the principle of judicial supremacy. The Supreme Court faces a tough fight to preserve its role to “say what the law is” and to maneuver the political branches into a settled, agreed-upon framework of twenty-first century security law—made all the more tough by the perilous anti-judicial atmosphere to which Andrew McCarthy, David Rivkin and Lee Casey have now added their own distinctive contribution.

Sensenbrenner Wants Your Cache

James Sensenbrenner, the same congressman who gave us the “two years in jail for not snitching” bill, now wants to force Internet service providers to keep a database of all the websites their users have visited. The bill leaves it up to the U.S. Attorney General to determine just how detailed those databases should be, but it could include not only detailed logs of websites visited, but of email, encrypted information, and the contents of conversations over VOIP.