Topic: Law and Civil Liberties

Why The NSA Collecting Your Phone Records Is A Problem

By
Julian Sanchez

Privacy advocates and surveillance experts have suspected for years that the government was using an expansive interpretation of the Patriot Act’s §215 “business record” authority to collect bulk communications records indiscriminately. We now have confirmation in the form of a secret order from the secret Foreign Intelligence Surveillance Court to Verizon — and legislators are saying that such orders have been routinely served on phone carriers for at least seven years. (It seems likely that similar requests are being served on Internet providers — increasingly the same companies that provide us with wireless phone services).

Some stress that what is being collected is “just metadata”—a phrase I’m confident you’ll never see a computer scientist or data analyst use. Metadata—the transactional records of information about phone and Internet communications, as opposed to their content—can be incredibly revealing, as the recent story about the acquisition of Associated Press phone logs underscores. Those records, as AP head Gary Pruitt complained, provide a comprehensive map of reporters’ activities, telling those who know how to look what stories journalists are working on and who their confidential sources are. Metadata can reveal what Websites you read, who you communicate with, which political or religious groups you’re affiliated with, even your physical location.

In a way, the ground was prepared for this indiscriminate collection of Americans’ data way back in the 1970s, when the Supreme Court held, implausibly, that we surrender our expectation of privacy—and with it, the protection of the Fourth Amendment—just by using modern technology that leaves traces of our activity on someone else’s computers. But Americans were also sold a false bill of goods when Congress passed and reauthorized the Patriot Act powers used here—which we were repeatedly assured were only intended to be used to track “bad guys.” What we weren’t told was that, if the government thinks datamining ALL our records might help identify “bad guys,” then that information too is “relevant” to an investigation.

This collection is probably well enough intentioned. The problem is that these records are likely to be retained in databases indefinitely. Which means we don’t just need to worry about whether the government’s motives are pure when they collect the information. Even if they are, someone with access to that data, maybe in five or ten years, may be unable to resist the temptation to use that information for other purposes. That could mean investigating ordinary crimes: If you can data mine for suspicious terrorist activity patterns—which as Jim Harper and Jeff Jonas have pointed out is likely to be extremely difficult—you can plug in “suspicious patterns” that may identify drug dealers and tax cheats as well. Still more disturbing is the possibility that, the intelligence community has repeatedly done historically, those records could be exploited for illegitimate political purposes, or even simple greed. (Imagine probing communications for signs of an impending corporate merger, product launch, or lawsuit.)

We are, predictably, being told that this program is essential to protecting us from terrorist attacks. But the track record of such claims is unimpressive: They were made about fusion centers, and the original NSA warrantless wiretap program, and in each case collapsed under scrutiny. No doubt some of these phone records have proven useful in some investigation, but it doesn’t follow that the indiscriminate collection of such records is necessary for investigations, any more than general warrants to search homes are necessary just because sometimes searches of homes are useful to police.

In the short term, we should hope for an Inspector General audit of this program, both to look for abuses—as a similar audit of National Security Letters uncovered “widespread and serious” misuse of authority—and to skeptically interrogate the claim that such sweeping collection is somehow indispensable to national security. In the longer term, we need to follow the suggestion of Justice Sotomayor in United States v. Jones and think hard about the “third party doctrine,” which leaves all this increasingly voluminous and revealing metadata stripped of constitutional protection.

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

NSA Spying on a Gazillion Americans

By
David Boaz

Today’s widespread outrage over reports that the National Security Agency is conducting widespread, untargeted, domestic surveillance on millions of Americans reminds me of this post from July 2012, in which Sen. Rand Paul reported on a private briefing he’d received. He couldn’t reveal what he’d learned, but he was able to report that the number of Americans subject to surveillance was closer to “a gazillion” than to zero. Now we have a bit more information. As I wrote then:

Sen. Rand Paul (R-KY) gave a great speech on surveillance last week at FreedomFest. Actually, he gave two good speeches, but the one embedded below is his short 6-minute talk at the Saturday night banquet. He talks about our slide toward state intrusion into our phone calls, our emails, our reading habits and so on. You know how big the surveillance state has gotten? The answer is “a gazillion.” Watch the speech—complete with high-falutin’ references to Fahrenheit 451 and the martyr Hugh Latimer!

Rand Paul Sat pm
Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

Rising Religious Intolerance in Indonesia

By
Doug Bandow

Indonesia could become a significant Asia power and counterweight to China. It is the world’s most populous Islamic nation but sports a tolerant reputation.  Indonesians evicted the Suharto dictatorship and created a democratic and increasingly prosperous state. So far, the artificial country has successfully countered multiple secessionist pressures.

Perhaps even more important, Indonesians could encourage Islam to move in a more liberal direction. Muslims make up nearly 90 percent of the population, but Indonesia’s politics traditionally have been secular. In its new report, “In Religion’s Name: Abuses Against Religious Minorities in Indonesia,” Human Rights Watch noted that “Indonesia is rightly touted for its religious diversity and tolerance.”

Unfortunately, however, as in the Middle East, the end of dictatorship in Indonesia has loosed intolerant religious forces. The victims are many. Reported HRW: “Targets have included Ahmadis (the Ahmadihay), Baha’is, Christians, and Shias, among others.” Offenses include state discrimination and mob violence. 

As I explained in my new column on American Spectator online:

HRW pointed to the use of blasphemy and conversion laws “to impose criminal penalties on members of religious minorities in violation of their rights to freedom of religion and expression.”  Such abuses are common in Pakistan, where violent jihadist sentiments are strong.  All religious minorities, as well as atheists, are at risk.

Expansive state control gives government many other avenues for discrimination if not persecution. HRW reported: “state discrimination on the basis of religion extends beyond the building of churches, mosques, and temples. Various government regulations discriminate against religious minorities, ranging from the provision of ID cards, birth and marriage certificates, and access to other government services.”

For instance, officials refuse to register marriages if the government doesn’t recognize the religion of one of the parties.  Without registration children are not issued birth certificates listing both parents.  National ID cards are required, but sometimes cannot be obtained without choosing among five officially recognized religions.  Refusing to list a religion can lead to charges of atheism and blasphemy.

The worst problem may be the government’s failure to protect religious minorities from violence. Such attacks are becoming more frequent. I have visited a church and Bible school destroyed by mobs, as well as a church that was bombed. In none of these cases was anyone ever punished. 

Indonesia could become a regional and even global leader. However, to do so, it needs to protect the lives and liberties of all of its citizens, irrespective of their religious beliefs.

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

A Brief Civil Liberties Quiz

By
Michael F. Cannon

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

Topics: 
General, Government and Politics, Law and Civil Liberties, Political Philosophy

George Will: We Need More Justice in Our ‘Justice System’

By
Tim Lynch

George Will’s latest column is a scathing attack on explosive growth in the federal criminal code, mandatory minimum sentencing, and plea bargaining. Here is an excerpt:

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”

He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Good stuff. For related Cato scholarship, go here, here, and here.

Topics: 
Law and Civil Liberties

Your Congress, Your NSA Spying

By
Jim Harper

The National Security Agency is collecting records of every domestic and cross-border Verizon phone call between now and July 19th. The secret court order requiring Verizon to hand over these records has been leaked to the Guardian.

You may find that outrageous. 1984 has arrived. Big Brother is watching you.

But the author of this story is not George Orwell. It’s Representative Lamar Smith of Texas, Senator Diane Feinstein of California, and you.

Here’s what I mean: In June of last year, Representative Smith (R) introduced H.R. 5949, the FISA Amendments Act Reauthorization Act of 2012. Its purpose was to extend the FISA Amendments Act of 2008 for five years, continuing the government’s authority to collect data like this under secret court orders. The House Judiciary Committee reported the bill to the full House a few days later. The House Intelligence Committee, having joint jurisdiction over the bill, reported it at the beginning of August. And in mid-September, the House passed the bill by a vote of 301 to 118.

Sent to the Senate, the bill languished until very late in the year. But with the government’s secret wiretapping authority set to expire, the Senate took up the bill on December 27th. Whether by plan or coincidence, the Senate debated secret surveillance of Americans’ communications during the lazy, distracted period between Christmas and the new year.

Senator Dianne Feinstein (D) was the bill’s chief defender on the Senate floor. She parried arguments doggedly advanced by Senator Ron Wyden (D-OR) that the surveillance law lacks sufficient oversight. My colleague Julian Sanchez showed ably at the time that modest amendments proposed by Wyden and others would improve oversight and in no way compromise security. But false urgency created by the Senate’s schedule won the day, and on December 28th of last year, the Senate passed the bill, sending it to the president, who signed it on December 30th.

The news that every Verizon call is going to the NSA not only vindicates Senator Wyden’s argument that oversight in this area is lacking. It reveals the upshot of that failed oversight: The secret FISA court has been issuing general warrants for communications surveillance.

That is contrary to the Fourth Amendment to the Constitution, which requires warrants to issue “particularly describing the place to be searched, and the persons or things to be seized.” When a court requires “all call detail records” to be handed over “on an ongoing daily basis,” this is in no sense particular. Data about millions of our phone calls are now housed at the NSA. Data about calls you make and receive today will be housed at the NSA.

The reason given for secret mass surveillance of all our phone calls, according to an unofficial comment from the Obama administration, is that it is a “critical tool” against terrorism. These arguments should be put to public proof. For too long, government officials have waved off the rule of law and privacy using “terrorism” as their shibboleth. This time, show us exactly how gathering data about every domestic call on one of the largest telecommunications networks roots out the tiny number of stray-dog terrorists in the country. If the argument is based on data mining, it has a lot to overcome, including my 2008 paper with IBM data mining expert Jeff Jonas, “Effective Counterterrorism and the Limited Role of Predictive Data Mining.”

The ultimate author of the American surveillance state is you. If you’re like most Americans, you allowed yourself to remain mostly ignorant of the late-December debate over FISA reauthorization. You may not have finished digesting your Christmas ham until May, when it was revealed that IRS agents had targeted groups applying for tax exempt status for closer scrutiny based on their names or political themes.

The veneer of beneficent government is off. The National Security Agency is collecting records of your phone calls. The votes in Congress that allowed this to happen are linked above in this post. What are you going to do about it?

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

Movement to Ban Economic Mandates Grows

By
Ilya Shapiro

Earlier this year, I wrote about Rep. Steven Palazzo’s (R-MS) proposed constitutional amendment whose entire text reads as follows: “Congress shall make no law that imposes a tax on a failure to purchase goods or services.”  So this would abolish Obamacare’s individual mandate “tax.”

Now we have movement in the Senate on this idea, with Marco Rubio (R-FL) introducing the exact same language, calling it the “Right to Refuse” Amendment.

Anyone who opposes this amendment wants the government to have the power to tax people for not buying something—whatever that something is: an electric car, dental floss, a gun, or broccoli.  It wasn’t clear until NFIB v. Sebelius, of course, whether the government constitutionally had this power—and Obamacare itself (as opposed to Chief Justice Roberts’s legislative rewrite) wasn’t written this way.

Obamacare delenda est.

Topics: 
Law and Civil Liberties

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