Topic: Telecom, Internet & Information Policy

If You Think Smith v. Maryland Permits Mass Surveillance, You Haven’t Read Smith v. Maryland

… and you’re not following developments in Fourth Amendment law.

Jeffrey Toobin is the latest to claim that Smith v. Maryland settles the Fourth Amendment issues around the National Security Agency’s acquisition of data about every call made in the United States. He even links to the text of the decision in a recent blog post.

The majority opinion in Smith did say that people don’t have a reasonable expectation of privacy in phone records, but that rationale is weak, and the facts of Smith are inapposite to the present controversy. I think that’s easily gathered from reading the case with awareness of legal currents.

Here’s what happened in Smith:

On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith.

The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence. The search revealed that a page in petitioner’s phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. (citations omitted)

Nat Hentoff on the NSA and Privacy

Today’s Washington Post reports that the National Security Agency violated the rules on domestic surveillance thousands of time a year since Congress granted the agency broader surveillance powers in 2008. Note this revelation did not come to light because of forthright disclosure from the professionals that run the agency, the congressional oversight committees, or the FISA court. Rather, whistleblower Edward Snowden provided this information to the Post. The U.S. government has made it clear that it wants Snowden locked away in a prison cell incommunicado. 

Over at the Wall Street Journal, Peggy Noonan interviewed Cato senior fellow Nat Hentoff about the implications of the surveillance state. Here’s an excerpt:

A loss of the expectation of privacy in communications is a loss of something personal and intimate, and it will have broader implications. That is the view of Nat Hentoff, the great journalist and civil libertarian. He is 88 now and on fire on the issue of privacy. “The media has awakened,” he told me. “Congress has awakened, to some extent.” Both are beginning to realize “that there are particular constitutional liberty rights that [Americans] have that distinguish them from all other people, and one of them is privacy”…

He wonders if Americans know who they are compared to what the Constitution says they are.

Mr. Hentoff’s second point: An entrenched surveillance state will change and distort the balance that allows free government to function successfully. Broad and intrusive surveillance will, definitively, put government in charge. But a republic only works, Mr. Hentoff notes, if public officials know that they—and the government itself—answer to the citizens. It doesn’t work, and is distorted, if the citizens must answer to the government. And that will happen more and more if the government knows—and you know—that the government has something, or some things, on you. “The bad thing is you no longer have the one thing we’re supposed to have as Americans living in a self-governing republic,” Mr. Hentoff said. “The people we elect are not your bosses, they are responsible to us.” They must answer to us. But if they increasingly control our privacy, “suddenly they’re in charge if they know what you’re thinking.”

This is a shift in the democratic dynamic. “If we don’t have free speech then what can we do if the people who govern us have no respect for us, may indeed make life difficult for us, and in fact belittle us?”

More thoughts from Nat Hentoff here.

Do Not Walk, California—Run from EDLs

As early as next week, the California State Senate could vote on S.B. 397, a hitherto little-noticed bill that approves “enhanced drivers’ licenses” in California. The bill’s ostensible purpose is to bring California’s licenses up to the standards set by the Western Hemisphere Travel Initiative (WHTI), which mandated the use of a passport or “enhanced driver’s license” for sea and land crossings in 2008 within continental North America and the Caribbean. (Air travel still requires the use of a passport.) WHTI was and still is a paragon of costly overreaction to terrorism.

What’s “enhanced” about an “enhanced driver’s license”? It contains a radio frequency identification (RFID) chip, which in turn contains a personal identification number. Think of it as your Department of Homeland Security tracking number. The RFID chip broadcasts the information to any receiver that properly interrogates it. At the Canadian and Mexican border, this in theory allows for quicker transit and passage through EDL-specific “Ready Lanes.” The receiver pulls up information held in a DHS database, including identity data, the bearer’s picture, and signature. (Unsurprisingly, the bill reserves the right for the state to include other information in the future, should it deem it to be necessary.) At the border and beyond, it allows pretty much anyone to figure out your comings and goings.

Using RFID in identity documents was identified as a no-no by DHS’s privacy advisory committee in 2006. That doesn’t seem to have stopped the agency from moving forward with it. If S.B. 397 passes, EDLs in California would become legal but optional, as they currently are in New York, Michigan, Vermont, and Washington State. Given the government’s propensity for turning optional pilot programs into permanent mandatory programs (witness the current debate over the 17-year-old E-Verify “pilot progam”), it’s not difficult to imagine a time when the EDL programs cease to be optional—and when EDLs contain information well beyond a picture, a signature, and citizenship status. The government also tends to expand programs far beyond their original purposes.

Californians should not walk—they should run away from “enhanced” driver’s licenses.

UPDATE: Rep. Justin Amash (R-Mich.) is on the case for Michiganders.

President Obama Thinks Spying Revelations Are “Noise”

In a report on the latest of President Obama’s attempts to circumvent Congress and govern by decree – this time by getting the Federal Communications Commission to raise “fees” on cellphone users by billions of dollars to expand federal subsidies for high-speed Internet access in local schools – the Washington Post also lets us know what the president thinks of revelations that the National Security Agency is scooping up all our emails and Internet traffic. We found out only later, though the president presumably knew back on June 6, that contrary to what we were told at the time, government officials also read some of the email. 

And what does the president think of these revelations that set off the “debate” he’s so supportive of? He thinks they’re “noise” getting in the way of announcements of programs that are, though of dubious constitutionality, “real and meaningful”:

On the same day of Obama’s visit [to a school to announce his ConnectEd program], news reports were dominated by details of a wide-ranging National Security Agency surveillance program that has since become one of the major controversies of the president’s second term.

As Air Force One flew toward North Carolina that day, Obama lamented to his education secretary that one of the administration’s biggest ideas was going to be overtaken by other news.

“I remember him sort of saying, ‘It’s a shame that there’s going to be a focus on the noise rather than something that’s real and meaningful,’ ” [Arne] Duncan said.

 

NSA Spying in the Courts

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel.

Cato senior fellow and Georgetown University law professor Randy Barnett joined me this week on a brief to the Court urging it to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation.

The Data Says Open-Ended Spending Bills Are Common

Let’s start with a little civics lesson: Congress spends money through a two-step process. Spending must first be authorized. That’s called an authorization of appropriations. Then, in a second step, the money is actually appropriated. There are exceptions, but on the whole this is how spending works. Authorizing bills go to authorizing committees, and appropriations bills go to the appropriations committees. When both do their thing, money gets spent. It’s good to keep an eye on.

In our project to generate better data about what Congress is doing, we’ve “marked up” over 80 percent of the bills introduced in Congress so far this year, adding richer and more revealing computer-readable data to the text of bills. That’s over 4,000 of the 5,000-plus bills introduced in Congress since January. We’re to the point where we can learn things.

I was surprised to find just how often the bills that authorize spending leave the amounts open-ended. A recent sample of the bills we’ve marked up includes 428 bills with authorizations of appropriations. Just over 40 percent of them place no limit on how much money will be spent. They say things like “such sums as may be necessary,” leaving entirely to the appropriations committees how much to spend. (There are many bills with both defined amounts and open-ended spending. To be conservative, we treated any bill having limited spending as not unlimited.)

This leads me to two related conclusions. First, authorizations of appropriations being a potential brake on spending, this surprisingly common practice is part of Congress’s fiscal indiscipline. The members of Congress and Senators who introduce such bills and vote to authorize open-ended spending are avoiding their responsibility to determine how much a program is worth to us, the taxpayers.

Obama Chastises Rogue Trade Agency for iPhone Ban

On Saturday, the president vetoed a decision of the U.S. International Trade Commission for the first time in over 25 years. As a result, the United States will not be imposing an import ban on older iPhones despite the ITC’s finding that Apple infringed certain patents owned by Samsung. This action by the Obama administration is undoubtedly a good development, not just because you will still be able to get a free iPhone 4 when signing a 2-year contract, but because the veto simultaneously disciplines and discredits the ITC’s disruptive role in the U.S. patent system.

The president’s intervention corrects a bad decision by the ITC. The patents that Samsung accused Apple of infringing in the ITC investigation are standard technology required to run phones on a 3G wireless network. Owners of standard-essential patents must agree to license the technology on fair, reasonable, and non-discriminatory (FRAND) terms to anyone who asks. Samsung claimed at the ITC that Apple refused to pay any royalties at all, and Apple claimed that Samsung demanded an unreasonable royalty. The ITC sided with Samsung.

The ITC’s ruling has been controversial not because Samsung won the case, but because the ITC’s remedy—total exclusion of the infringing products from the U.S. market—is excessive.

If Samsung had brought its case in federal district court instead of the ITC, the judge would most likely have ordered Apple to pay the royalties it owed Samsung. An injunction against future sales would not be granted, because Samsung never had the right to keep Apple from using the technology in the first place, only to collect royalties.

As I wrote last month in anticipation of a potential presidential veto, this action by the president has a number of policy implications that go beyond the Apple–Samsung patent dispute. The Obama administration, leaders in Congress, and much of the tech industry have been converging lately on the idea that remedies for patent infringement at the ITC are too strict. The ITC should not be able to ban future sales in a situation where a district court would refuse to do the same thing. As it stands now, the ITC’s excessive remedies allow patent holders to wield more power than they should and exacerbate the ongoing struggle against patent trolls.

Korean press coverage of the issue has implied that the administration’s veto of Samsung’s patent victory against Apple amounts to “flagrant protectionism.” In a separate case, the ITC is set to decide later this week whether Samsung infringed patents owned by Apple. If the administration allows an import ban on Samsung products despite intervening to help Apple, many in Korea will surely cry foul.

A trade conflict would be a fitting consequence of mixing patent litigation with trade policy. It doesn’t make sense for President Obama to have the power to intervene in a patent case simply because he doesn’t approve of the outcome. Section 337 of the Tariff Act of 1930, the law that enables the ITC to litigate patents, was designed as a protectionist trade remedy. The president’s veto power is meant to ensure that the ITC’s decisions don’t impede U.S. foreign or economic policy. If the ITC were a legitimate patent court, its decision would not be subject to executive override. The ITC is simply the wrong place to litigate patents, standard-essential or otherwise.