Topic: Law and Civil Liberties

NSA Snooping: a Majority of Americans Believe What?

By
David Kirby

Yesterday, the Washington Post and the Pew Research Center released a joint poll that purportedly showed that “a large majority of Americans” believe the federal government should focus on “investigating possible terrorist threats even if personal privacy is compromised.”

But a careful look at the poll shows citizens are far less sanguine about surrendering their privacy rights, as the facts continue to be revealed.

Pollsters faced a difficult challenge—to accurately capture public opinion during a complex and evolving story. Recall, on Wednesday of last week, the story was about the NSA tracking Verizon phone records. So the pollsters drew up a perfectly reasonable and balanced question:

As you may know, it has been reported that the National Security Agency has been getting secret court orders to track telephone call records of MILLIONS of Americans in an effort to investigate terrorism. Would you consider this access to telephone call records an acceptable or unacceptable way for the federal government to investigate terrorism?

Fifty-six percent found this “acceptable.” Thus, the “majority of Americans” lead in the Washington Post.

However, on Thursday, the Washington Post revealed explosive details about the massive data-collection program PRISM—and the public was alerted that the NSA was not just collecting phone records, but email, Facebook, and other online records. So the pollsters quickly drew up a new question, asked starting Friday, from June 7-9:

Do you think the U.S. government should be able to monitor everyone’s email and other online activities if officials say this might prevent future terrorist attacks?

Fifty-two percent—a majority—said “no.” So Americans feel differently about the story based on the facts on Wednesday, when the story was about tracking “telephone calls,” and facts on Thursday, when the story was about monitoring all “email and other online activity.”

The Washington Post could have fairly gone with a story that a majority of Americans do not agree that the federal government should monitor everyone’s email and online communication, even if it might prevent future terrorist attacks.

Unfortunately, that’s not the story that the Washington Post went with. Subsequent media coverage of the Post-Pew poll has neglected this nuance and cemented this misinterpretation of what “majority of Americans” believe.

A more reasonable interpretation of the Post-Pew poll is that citizens’ views seem to be changing as more details are revealed about the massive extent of the NSA snooping program. Indeed, most citizens have not been following this story as closely with only 48 percent report following thing “very closely” or “fairly closely.”

I’ll be watching eagerly to see what the next polls find out about that ever elusive “majority of Americans.”

Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

Happy Birthday Nat Hentoff!

By
Tim Lynch

Cato Senior Fellow Nat Hentoff turns 88 today. 

John Whitehead, president of the Rutherford Institute, recently had some high praise for our colleague:

I’ve had the privilege of working with some remarkable individuals in my lifetime—celebrities, politicians, writers, artists, musicians, journalists, people whose names are legendary and others whose impact, no less significant, was only felt by a small few—yet for sheer nerve, integrity, tenacity, vision and a love of America that has weathered the best and worst this nation has had to offer, no one can match Nat Hentoff.

Even at the ripe age of 88, Hentoff is a radical in the best sense of the word, a feisty, fiercely loyal, inveterate freedom fighter and warrior journalist with a deep-seated intolerance of injustice and a well-deserved reputation for being one of the nation’s most respected, controversial and uncompromising writers.

Armed with a keen understanding of the law and an enviable way with words, brandishing a rapier wit and teeming with moral outrage, Nat has never been one to back down from a fight, and there have been many over the course of his lifetime—one marked by controversy and fueled by his passion for the protection of civil liberties and human rights. …

A self-described uncategorizable libertarian, Hentoff adds he is also a “Jewish atheist, civil libertarian, pro-lifer.” Born in Boston on June 10, 1925, Hentoff received a B.A. with honors from Northeastern University and did graduate work at Harvard. From 1953 to 1957, he was associate editor of Down Beat magazine. He went on to write many books on jazz, biographies and novels, including children’s books. His articles have appeared in the Wall Street Journal, New York Times, Commonwealth, the New Republic, the Atlantic and the New Yorker, where he was a staff writer for more than 25 years. In 1980, he was awarded a Guggenheim Fellowship in Education and an American Bar Association Silver Gavel Award for his coverage of the law and criminal justice in his columns. In 1985, he was awarded an Honorary Doctorate of Laws by Northeastern University. For 50 years, Hentoff wrote a weekly column for the Village Voice. When that position was terminated on December 31, 2008, Hentoff joined the Cato Institute as a Senior Fellow.

Read the whole thing.

Just a few days before Glenn Greenwald broke the explosive story about NSA surveillance, Hentoff was already complimenting Greenwald for his work defending free speech and a free press:

What all of this comes down to, as it may affect future administrations as well as generations of Americans, has been precisely underlined by Glenn Greenwald, an incisive journalist who would have given James Madison hope for the First Amendment’s future.

Writing about how “media outlets and journalists have finally awakened to the serious threat posed by the Obama administration to press freedoms, whistle blowing and transparency,” the question now, Greenwald demands, is:

“What, if anything, will they (journalists) do to defend the press freedoms they claim to value? … Thwarting government attacks like these … requires a real adversary posture, renouncing their subservience to government interests and fear of alienating official sources.

Hentoff discusses the NSA story here.

And beyond his work on civil liberties, Hentoff still finds time to review jazz music for the Wall Street Journal.  Last month, Hentoff had this article about Joe Alterman.

Topics: 
Law and Civil Liberties

Government’s Legal Arguments Shrivel on the Vine

By
Ilya Shapiro

Yet again the unanimous Supreme Court has slapped down a government attempt to deprive property owners of their civil rights.  What was at stake in Horne v. Dept. of Agriculture wasn’t even the property – raisins! – but the mere ability to challenge the government’s desire to take that property without meaningful judicial review.

Nobody should have to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that’s exactly what the U.S. Department of Agriculture sought to impose on raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the Hornes turn over 47% of their crop without compensation.

These New Deal-era regulations are bad enough – forcing raisin “handlers” to turn over some of their crop to the government so it can control raisin supply and price – but here the government kept throwing up obstacles to the Hornes’ attempts to assert that they shouldn’t legally be subject to them.  The government demanded about $650,000 from the Hornes and didn’t want to give them a day in court until they paid the money and jumped through assorted administrative hoops.

The Supreme Court correctly rejected that absurd position and reversed the California-based U.S. Court of Appeals for the Ninth Circuit that upheld it, reinforcing the line drawn by five other circuit courts.  “In the case of an administrative enforcement proceeding,” Justice Thomas wrote on all his colleagues’ behalf, “when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another.”

Indeed, there’s no reason to treat Fifth Amendment takings claims any differently than lawsuits against government violations of other constitutional provisions.

Here’s more background on the case and Cato’s amicus brief.

Topics: 
Government and Politics, Law and Civil Liberties, Regulatory Studies

In Its Bubble of Secrecy, the National Security Bureaucracy Redefined Privacy for Its Own Purposes

By
Jim Harper

Rep. Jim Sensenbrenner (R-WI) is nothing if not a security hawk, and this weekend he decried the NSA’s collection of all Americans’ phone calling records in a Guardian post entitled, “This Abuse of the Patriot Act Must End.” On Thursday last week, he sent a letter to Attorney General Eric Holder demanding answers by Wednesday.

It also became apparent over the weekend that the National Security Agency’s program to collect records of every phone call made in the United States is not for the purpose of data mining. (A Wall Street Journal editorial entitled “Thank You for Data Mining” was not only wrong on the merits, but also misplaced.) Rather, the program seizes data about all of our telephone communications and stores that data so it can aid investigations of any American who comes under suspicion in the future.

Details of this program will continue to emerge–and perhaps new shocks. The self-disclosed leaker–currently holed up in a Hong Kong hotel room waiting to learn his fate–is fascinating to watch as he explains his thinking.

The court order requiring Verizon to turn over records of every call “on an ongoing daily basis” is a general warrant.

The Framers adopted the Fourth Amendment to the Constitution in order to bar general warrants. The Fourth Amendment requires warrants 1) to be based upon probable cause and 2) to particularly describe the place to be searched and the persons or things to be seized. The leaked warrant has neither of these qualities.

A warrant like this would never be adopted in an open court system. With arguments and decisions available to the public and appeals going to public courts, common sense and simple shame would foreclose suspicionless data-gathering about every American for the benefit of future potential investigations. 

Alas, many people don’t believe all that deeply in the Constitution and the rule of law when facile promises of national security are on offer. It is thus worthwhile to discuss whether this is unconstitutional law enforcement and security practice would work. President Obama said last week, “I welcome this debate and I think it’s healthy for our democracy.”

Read the rest of this post »

Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

Fighting Terrorists Not the Same as Fighting Terror

By
Christopher A. Preble

I have a new piece up this morning at CNN’s Global Public Square, co-authored with Mieke Eoyang of Third Way, making the case against an expanded Authorization for Use of Military Force (AUMF). Rather than thinking of new powers to hand over to the president, Congress should revisit the original rationale for the AUMF, and realize that, with the end of combat operations in Afghanistan by late 2014, such authorities are no longer required. In the future, should additional threats emerge that the president is unable to address without taking the country to war, then Congress can and should declare war, on an enemy, and with a clear end-goal in mind.

As it currently stands, the AUMF has become a catch-all for any U.S. government activities that can be cast as counterterrorism. It has allowed what should have been a small and achievable mission–killing or capturing those who planned the 9/11 attacks, and those who helped them, and degrading al Qaeda’s ability to carry out future such operations–to become a quixotic and unbounded global crusade, the longest war in the nation’s history, with no end in sight. One proposed revision would only compound this problem, making it easier for the president, this one or his successors, to expand the list of targets, and this war, at his or her discretion. So long as the nation remains on a war-footing, the government will always find new wars to fight. 

The GPS piece was written before the revelations of U.S. government surveillance of U.S. citizens’ phone records, and, perhaps, Internet usage. But the themes are connected: how does the U.S. government strike a balance between protecting the rights and liberties of American citizens, and securing those same citizens from physical harm, especially from individuals (i.e. terrorists) who use violence or the threat of violence against innocent people for political purposes? The American people, usually jealous of government intrusions in their private lives, have been far more tolerant of such intrusions over the past 12 years for a simple reason: they are scared. Indeed, they are terrified. Counterterrorism should address that psychological condition as much as it does the people that cause it. And we don’t need an expanded AUMF to do that.

The government has done an able job of rounding up terrorists and their accomplices; core al Qaeda has been practically eliminated, and its would-be successors are notably unsophisticated. The AUMF had little to do with that, with the important exception of those initial operations conducted in and around Afghanistan. The government has also collected, chiefly through traditional law-enforcement methods, an additional cohort of idiots, nitwits, and utter incompetents, many of whom were unlikely to harm even themselves, let alone innocent bystanders. The small likelihood that they might succeed has justified further extraordinary efforts, about which we now know a bit more. Again, such capabilities do not hinge on an AUMF.

By contrast, the government has done a terrible job of reducing people’s fears, and the context of the AUMF–reminding the public that we are at war–probably makes the problem worse. By and large, despite a few hopeful signs, we are still terrorizing ourselves. This was the overarching theme in a collection of essays that I edited with Jim Harper and Ben Friedman. The book was published nearly three years ago. Its message, unfortunately, still remains relevant today.

Topics: 
Foreign Policy and National Security, Law and Civil Liberties

Hat Tip, Glenn Greenwald

By
Tim Lynch

Today’s New York Times has a nice profile on Glenn Greenwald, the man who has helped expose the federal government’s widespread surveillance of tens of millions of Americans. Here is an excerpt:

Late Wednesday, Mr. Greenwald, a lawyer and longtime blogger, published an article in the British newspaper The Guardian about the existence of a top-secret court order allowing the National Security Agency to monitor millions of telephone logs. The article, which included a link to the order, is expected to attract an investigation from the Justice Department, which has aggressively pursued leakers.

On Thursday night, he followed up with an article written with a Guardian reporter, Ewen MacAskill, that exposed an N.S.A. program, Prism, that has gathered information from the nation’s largest Internet companies going back nearly six years.

“The N.S.A. is kind of the crown jewel in government secrecy. I expect them to react even more extremely,” Mr. Greenwald said in a telephone interview. He said that he had been advised by lawyer friends that “he should be worried,” but he had decided that “what I am doing is exactly what the Constitution is about and I am not worried about it.”

A few years ago, Cato invited Greenwald to participate in a Cato Unbound exchange on government surveillance. Here’s an excerpt from the introduction to his essay:

The digital surveillance state is out of control. It intercepts our phone calls, keeps track of our prescription drug use, monitors our email, and keeps tabs on us wherever we go. For all that, it doesn’t appear to be making us safer. Accountability has been lost, civil liberties are disappearing, and the public-private partnerships in this area of government action raise serious questions about the democratic process itself. It’s time we stood up to do something about it.

Read the rest of this post »

Topics: 
Law and Civil Liberties

Government Spying on Foreign Customers Is Bad for U.S. Business

By
Simon Lester

I’ll leave the privacy/con law issues related to the latest government spying reports to my Cato colleagues who know about these things. I just wanted to mention one economic aspect of all this. Orin Kerr notes the following over at the Volokh Conspiracy: 

Here’s an excerpt from a forthcoming article of mine … :

The reality of global Internet access means that U.S.-based Internet services often have a heavily foreign customer base. Consider Gmail, the popular e-mail service provided by Google. Google is headquartered in California, and its servers currently reside there. But Gmail’s business is truly international, and slightly less than 30% of Gmail’s users reside in the United States. This chart shows the percentage of Gmail’s users that are in a handful of different countries as of 2012:

United States 29.7%

India 8.9%

Japan 3.4%

Russia 3.3%

Brazil 3.2%

United Kingdom 2.9%

China 2.7%

Iran 2.6%

Facebook’s user base is even more heavily foreign than is Gmail’s user base. To be sure, using Facebook has become as American as apple pie: About 54% of Americans presently have a Facebook account. At the same time, only about 16% of Facebook’s users are located in the United States. The rest, about 84%, access Facebook from abroad. For United States-based services like Gmail and Facebook, United States users form a small subset of its global customer base.

It sounds like the PRISM program takes advantage of that by giving the NSA access to the computers of the major U.S. based providers so it can search for the information of non-U.S. persons—subject to the NSA’s judgment of who is a non-U.S. person—and monitor them in realtime.

It seems to me that this revelation can’t be good for these companies in terms of use by non-Americans. Who wants to use a communication service that the U.S. government uses to spy on you? Not many people, I’m guessing. As a result, there may be a great opportunity here for foreign-based internet companies to market themselves with a slogan along the lines of, “We won’t give the U.S. government access to your email account.” So, in addition to all of the obvious downsides of a massive government spying operation, we may also be driving foreign customers away from U.S. businesses.

Topics: 
International Economics and Development, Law and Civil Liberties

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