Topic: Law and Civil Liberties

The Latest ‘Intelligence Gap’

Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:

“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”

I want to take claims like these with due gravity, but I can’t anymore.  Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time.  We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires.  Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either.  But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed?  Pull the other one.

That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act.  Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.

As for what the problem might be, I can think of a couple of possibilities off the top of my head.  A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context.  Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.

Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.

These are, of course, blind guesses.  What’s disturbing is how much blind guessing the FISA court itself may be doing.  The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.

We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.

The Court Looks at Freedom of Association

On Monday morning the Supreme Court will hear oral argument in a case that illustrates clearly how modern American anti-discrimination law can be used to undermine basic human rights. The case, Christian Legal Society v. Martinez, arose after the Hastings College of Law, a large public law school in San Francisco, denied CLS the same recognition and support it granted to some 60 other student organizations on the ground that CLS, contrary to the Hastings nondiscrimination policy, discriminates by requiring that its members and officers abide by certain key tenets of the Christian faith. In a word, in the name of anti-discrimination, Hastings, a government institution, is discriminating against CLS, which is simply exercising its speech, religious, and associational rights.

Cato filed an amicus brief in the case, written by Richard A. Epstein, professor of law at the University of Chicago. To barely summarize our argument, freedom is at the core of the American vision, including freedom of private association. But association has two sides: the right to associate with willing others; and the right not to associate with others, for whatever reason, which amounts to the right to discriminate. Public institutions, by contrast, belong to all of us, so they may discriminate only for reasons closely connected to their missions. Since individuals will associate only if they think themselves better off by doing so, social welfare is improved when government protects private rights of association while itself studiously avoiding discrimination.

Our history in this area has been uneven, of course. Although economic association was generally protected, slavery and Jim Crow were stark exceptions, along with certain other restrictions on personal association. As Progressive Era attacks on the distinction between private and public grew, however, freedom of association in the economic sphere came to be restricted, first by regulatory and later by anti-discrimination laws. Yet in time, courts began carving out exceptions for “personal” or “intimate” association – drawing lines not nearly as bright as that between private and public.

Those decisions today constitute a body of precedents that prohibit government from directly discriminating against parties who are exercising their rights of “expressive association.” But they also protect against indirect discrimination through the imposition of “unconstitutional conditions.” Thus, Hastings cannot tell CLS, “You’re free to go elsewhere to practice your religion, but if you enter our ‘limited public forum,’ which is open to others, you’ve got to give up one or more of your constitutionally protected rights.” In other words, although Hastings doesn’t have to recognize or support any student organizations, once it opens its doors to some, it must do so for all. To do otherwise is to engage in forbidden viewpoint discrimination. Read Cato’s brief for the full story.

How Broadly Did School Laptops Spy?

Remember the case of Blake Robbins? He’s the Pennsylvania student suing the Lower Merion School District over photos his school-issued laptop took while he was at home, thanks to a remotely activated security program that hijacked the computer’s webcam. The school always claimed that the program was only used to locate laptops that had gone missing or been stolen, and some reports suggested that Robbins might have triggered it by inappropriately taking home a temporary “loaner” laptop. I’ve argued elsewhere that this would still constitute a Fourth Amendment violation, but once the school announced it would stop using the security camera feature, parents could at least reassure themselves that Robbins’ case had been an aberration.

But now the teen’s lawyers have filed a motion alleging far broader and more disturbing surveillance—some of which the school seems to at least partly confirm.

The motion alleges that the webcam was active, not for a few minutes or hours one evening, but over two weeks, during which time it captured more than 400 screenshots and photos, including images of Blake asleep or partially undressed, and of private IM conversations. Not only that, but the discovery process appears to have uncovered “thousands of webcam pictures and screen shots” of “numerous other students in their homes, many of which [sic] never reported their laptops lost or missing.” Also obtained by the plaintiffs were e-mails between school IT personnel, in which one supposedly describes webcam images as “a little LMSD soap opera,” to which another replies “I know, I love it!”

The school has responded in a statement denying any deliberate wrongdoing, but admitting that their investigation had uncovered a “substantial number of webcam photos” of students. They intend to contact the families of any students pictured so that they can see what images were taken—images that it seems the families previously had no idea existed.

Suppose the school is telling the truth—that all this happened without anyone deliberately attempting to spy on school children.  Shouldn’t that be even more disturbing? If this really can happen by accident, shouldn’t we be asking how many of the hundreds of other one-to-one schools in the country have similar security programs? Asking how many other such “accidents” there may have been?

It seems like only a matter of time before schools issuing computing devices is no rarer than schools issuing textbooks; not all of those schools will necessarily think deeply about the privacy implications of building surveillance capabilities into a network of devices toted by kids. They’ll understandably be thinking about how to protect their investment in those laptops or tablets. If parents don’t ask questions about student privacy when the systems are being built and the computers being purchased, there’s every reason to think we’ll start seeing more cases like this one.

Obama Same-Sex Order Right in Spirit, Wrong in Letter

President Obama has ordered the Department of Health and Human Services to craft new rules that would facilitate hospital visitation rights for same-sex couples and smooth the way for gays and lesbians to make medical decisions on behalf of their partners.

On public policy grounds, the president’s directive is indeed welcome.  Two people who have joined in a long-term, committed, and mutually reinforcing relationship are entitled to equal treatment, regardless of sexual preference.

Regrettably, however, the president has exceeded his constitutional authority.  His order to his health secretary is deficient in two respects:

First, the government is invoking its power to spend for Medicare and Medicaid, then demanding that all hospitals receiving such funds adopt the new rules.  But there is no explicit power to spend in the Constitution.  Despite the Supreme Court’s contrary pronouncements, spending is permitted only as a “necessary and proper” means to execute other enumerated powers.  Quixotic though it might sound given post-New Deal jurisprudence, there is no enumerated power for the federal government to be engaged in providing health care to private citizens.

Second, the Constitution requires that “All legislative Powers … shall be vested in a Congress.”  That means laws conferring benefits or imposing obligations on private parties are supposed to be passed by the legislature, not the executive.  Yes, the Court has condoned delegations of legislative authority for a vast array of programs, but that merely reinforces the need to interpret the Constitution as it was originally understood.

The Crusade against Sexting

As my colleague Tim Lynch pointed out in this post, the Third Circuit recently upheld an injunction against a prosecutor who threatened charges against teenagers who engaged in “sexting.” A conviction would have turned these minors into registered sex offenders for flirting via cellphone. Professor Eugene Volokh has more on the decision.

“Sexting” is sending an explicit photo of yourself to your significant other, and is an increasingly common occurrence with high school–aged teens. It’s dumb — those digits don’t ever go away, and they can come back to embarrass you — but it shouldn’t make you a sex offender.

Unfortunately, the laws don’t reflect this sensible distinction between poor teenage judgment (but I repeat myself) and intentional criminality. I don’t think this guy is a threat to society, but he’s a registered sex offender now.

Even staunch conservative Andy McCarthy expressed concern about the heavy mandatory minimums for possession of child pornography over at The Corner. First-time offenders can get 15-year minimum sentences, more than some of the mobsters that McCarthy prosecuted as an assistant U.S. attorney. As McCarthy puts it:

I think that’s nuts. And mind you, compared to the average person (and even the average prosecutor), I am Atilla the Hun: I would not have the slightest problem imposing capital punishment on the people who actually produce and “perform” in these depictions in which young children are sexually abused…

But the mandatory minimums have to be sensible — “Doing it for the children” is not a rationale for failing to distinguish the truly evil from the venial.

This is why Vermont legislators carved out an exemption for sexting so that teens would not be charged as child pornographers and registered as sex offenders. The video at the link shows Vermont State Senator John Campbell making the case for such a legal distinction:

If a 14- or 15-year old girl, let’s say, decides to send a photograph of her breast to her boyfriend who is 15, she has just then become a transmitter of child pornography and he is in possession of child pornography, and as such, then they are now on the lifetime registry, the sex offender registry. So take that a little bit further, and see what’s going to happen. We have a child who now, as a registered sex offender, if they are lucky to get into college, because they have to register when they get to college. If they’re fortunate enough to get there, and they want to, let’s say, go into a teaching profession. Do you think that they’re going to be hired as a teacher when they have been charged with possession of child pornography? The answer is probably not.

Internet safety advocate Donna Rice Hughes responds: “They don’t have to go into a sex offender registry. There is prosecutorial discretion currently in the child pornography laws.”

We should not create a criminal code broad enough to give prosecutors the ability to charge anybody with something, and then leave it to the prosecutors’ good sense to rein themselves in.

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.”

— Chief Justice Morrison Waite, United States v. Reese, 92 U.S. 214, 221 (1875)

The problem goes beyond sexting. Last year the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on “cyberbullying” legislation that would have criminalized using the internet to hurt someone else’s feelings. Setting aside the First Amendment issues with such a concept, this was a bill directed at making a federal felony out of teenagers’ rude conduct, in spite of the fact that there are no federal juvenile detention facilities to deal with this newly criminalized class of citizens.

Vermont’s sexting fix is a good start, but we have a long way to go before our laws again reflect traditional notions of criminal justice.

University of Maryland Beating Editorial

The Washington Post has an excellent editorial on the beating that Prince George’s County officers gave University of Maryland student John J. McKenna. As I said in this post, the beating, and the false charges filed against McKenna, would never have resulted in the suspension of (and possible charges against) the officers involved without video that showed the officers’ unwarranted aggression. As the Post puts it:

Instead, it was not until the video surfaced this week that Prince George’s Police Chief Roberto L. Hylton learned of it, he said, adding that he was “outraged and disappointed.” Why wasn’t he “outraged and disappointed” that his own police had not come forward earlier to report the incident? After all, media reports at the time included eyewitness accounts of excessive police violence. Wasn’t it Chief Hylton’s responsibility to investigate those allegations? The unavoidable conclusion is that had there been no video, the conspiracy of police silence and coverup would have succeeded.

McKenna was fortunate that his family had the resources to hire a private investigator to find the video. Not everyone is so lucky, and it makes the case for changing Maryland’s unanimous consent law for recording conversations, as this case highlights. Laws that prevent the recording of interactions with police prevent transparency in what is supposed to be an open and free society.

Crime and Punishment in the Intel Community

On Thursday, the government indicted former National Security Agency executive Thomas Drake for obstructing justice and mishandling classified documents—though the underlying crime, for which Drake was not actually charged, was leaking embarrassing information to national security reporter Siobhan Gorman (then of the Baltimore Sun, now at The Wall Street Journal). As Glenn Greenwald observes, the decision to move forward with a rare leak prosecution in Drake’s case stands in rather sharp contrast to the decision to look the other way when it comes to other sorts of wrongdoing in the world of intelligence.

For years, the NSA managed a sweeping program of warrantless wiretaps and large-scale data mining, which a federal judge recently confirmed was in gross violation of the Foreign Intelligence Surveillance Act. The telecoms who participated in the scheme were, equally clearly, violating the Electronic Communications Privacy Act. The FBI separately and systematically flouted the same law by obtaining call records for thousands of phone numbers without any legitimate legal process. And, of course, there’s the little matter of torture. For these crimes, the administration has pronounced a verdict of “boys will be boys,” on the grounds that it’s better to gaze boldly into our shining future than get bogged down in recriminations over all that old stuff.

Drake didn’t spy on the conversations of Americans without a court order, or subject detainees to simulated drowning or sleep deprivation. Far worse, apparently, he embarrassed the NSA. The first article for which he acted as a source, “Computer ills hinder the NSA,”detailed how the agency had squandered billions on faulty computer systems that were getting in the way of effective intelligence work:

One [system] is Cryptologic Mission Management, a computer software program with an estimated cost of $300 million that was designed to help the NSA track the implementation of new projects but is so flawed that the agency is trying to pull the plug. The other, code-named Groundbreaker, is a multibillion-dollar computer systems upgrade that frequently gets its wires crossed.

The downfall of the Cryptologic Mission Management program has not previously been disclosed. While Congress raised concerns about the agency’s management of Groundbreaker in a 2003 report, the extent and impact of its inadequacies have not been discussed publicly.

To be sure, Drake broke the law—just as Daniel Ellsberg did when he leaked the Pentagon Papers. But it’s hard to say how the law here was working to protect national security, as opposed to the agency’s image. In any event, the contrast between the reaction to Drake and the non-reaction to other forms of lawbreaking makes the standard in effect for Bush-era misdeeds clear: If you illegally gathered information on members of the public, Obama’s DOJ would rather let sleeping dogs lie. If you illegally tried to get information to the public, you’d better lawyer up.  From Main Justice to Fort Meade, message received.