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NSA Surveillance: Blog Post Roundup

There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links:

News Articles

James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y. Times, Dec. 16, 2005) (original article to break the story)

Scott Shane, Behind Power, One Principle as Bush Pushes Prerogatives (N.Y. Times, Dec. 17, 2005)

Peter Baker, President Acknowledges Approving Secretive Eavesdropping (Wash. Post, Dec. 18, 2005)

AP, Bush Says U.S. Spy Program Is Essential and Legal (AP, Dec. 19, 2005)

Statutes, Cases, and Other Materials

Foreign Intelligence Surveillance Act (FISA) (1978)

Authorization for Use of Military Force (Sept. 14, 2001)

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)

United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress’s Authorization to Use Military Force)

Blog Posts (in no particular order and by no means comprehensive)

Orin Kerr, Legal Analysis of the NSA Domestic Surveillance Program (Dec. 19, 2005)

“My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.”

(This is the most lengthy and detailed analysis to date.)

Orin Kerr, Domestic Surveillance by the NSA? (Dec. 15, 2005)

“While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff.”

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21

Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

NSA2a.jpgIn this post, I aim to explore more in depth whether Bush had the legal power to authorize warrantless NSA surveillance. As I was putting the finishing touches on this post, I noticed that Orin Kerr beat me to the punch, and I find that we’ve identified the same issues and are in substantial agreement. His post is a lot longer and more detailed than mine (which is quite long itself), so read mine for a broader overview and Orin’s for the treatise-length account.

1. Fourth Amendment

The Fourth Amendment standards are somewhat vague. The Supreme Court declared in United States v. United States District Court, 407 U.S. 297 (1972) (often called the Keith case) that the Fourth Amendment required a warrant for the government to engage in electronic surveillance for domestic criminal investigations. However, the Court noted:

. . . [D]omestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. . . . Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. . . . .

Different standards [for gathering domestic security intelligence] may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

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1

Welcome to the Google-Borg

USAToday.com is running a banner headline today for an article: “Google becoming an auxiliary brain.” Here’s the article, and here’s the thesis of the reporter, Elizabeth Weise:

If we are the sum total of our knowledge and experiences, then the Internet is a collection of other people’s knowledge and experiences. And Google — so ubiquitous that it has become its own verb — allows us to tap into that collection.

I generally enjoyed reading this, and it’s way too easy to nitpick USA Today, but here are a few reactions:

1) It’s a pretty clear example of the cyborg trope isn’t it? Google isn’t billed as just a novel information source, like a television, it’s billed as a “brain” — a technological extension of human biology. And like the brain of the Star Trek Borg, it is a collective mind we now share. This collective brain-sharing is billed not as scary, but nifty.

2) Despite the excerpt above, if you read this, Google appears to be getting a great deal of credit for the Web itself. Throughout, Weise’s language makes this an article about Google as information repository, not as search provider. To be clear: Larry, Serge, and company built a great search tool that helps you find information that other people put on the Web (and one that hands you an advertisement along the way).

3) In somewhat of a contradiction, it appears that people who provide information on the Web are not to be trusted. Weise quotes a research librarian from Georgia:

And even when malicious intent isn’t the problem, mastery of a subject can be, says Jacobson. “The opinions that get heard are from people who have a lot of time to create websites, not necessarily the people with the best information.”

Can’t trust those people who have time to create websites, can you? Oh wait — isn’t that the definition of my Googlebrain? What is curious is that the answer seems to be no, because this comment doesn’t follow the discussion of Google, but… Wikipedia. So Wikipedia is less trustworthy than the Web (aka “Google”)? Oh well.

Further reading: Danah Boyd on the Seigenthaler fuss.

6

Should Google, Yahoo, and Microsoft Help China Filter Searches?

china1a.bmpAn interesting article from Salon discusses how Google, Yahoo, and Microsoft assist the Chinese government with censorship. The companies filter out search results that the government wants to censor, and they help the government track down individuals engaging in criticism and dissent:

To conduct business in China, popular Internet companies Yahoo, Microsoft and Google have had to accommodate a regime that forbids free speech, bars political parties and jails journalists. This means filtering searches on their sites, censoring news and providing evidence in the trials of political dissidents — or risk having their sites blocked in China. Forced to choose between ignoring the world’s hottest market or implicitly endorsing a system of censorship that a recent Harvard study called “the most sophisticated effort of its kind in the world,” the companies have decided to cooperate.

“Business is business,” Jack Ma, CEO of Alibaba.com, which controls Yahoo China, told the Financial Times. “It’s not politics.”

How do companies cooperate? The article explains:

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6

Wikipedia Vandals

Wikipedia-vandal.jpgAccording to The Times (UK), a group of vandals have been attacking Wikipedia deliberately adding in falsehoods to articles:

[There has been a] surge in the number of spoof articles and vandal attacks which have followed the furore over a biographical Wikipedia article linking John Seigenthaler, a respected retired journalist, with the assassinations of both John F and Robert Kennedy.

In one such fake article, it was suggested today that Jimmy Wales, Wikipedia’s creator, was shot dead at his home by Siegenthaler’s wife.

This is most unfortunate. That’s the problem when you have something open and free — anybody can abuse the system. In an interesting post, Eric Goldman predicts the demise of Wikipedia:

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Freakonomics, The Apprentice, Student Grades, and Privacy

freakonomics3.jpgapprentice2.jpg

The ending of this season’s The Apprentice (with Donald Trump) has everybody talking. Rebecca Jarvis and Randal Pinkett were the finalists, both of whom Trump thought were outstanding stars. He hired Randal and later asked Randal whether he should also hire Rebecca. Randal said “no” because “there can be only one Apprentice” and the show is called “the Apprentice, not the Apprenti [sic].” Ann Althouse has more details and extensive commentary here and here.

The buzz about The Apprentice finale has also reached the Freakonomics blog, one that I greatly enjoy. I was surprised when I read a post by Steven Levitt about Rebecca:

More important, I know a celebrity! Rebecca Jarvis, the runner-up, is my former student at University of Chicago. If I remember correctly, she got an A.

Far stranger than her being my student is that we also went to the same high school in the Twin Cities.

I’ll have to dig out her old exam and get her to autograph it for me.

My surprise was at the fact that he just revealed a student’s grade on the Internet. There is likely no actionable privacy law claim for such a disclosure (perhaps breach of confidentiality), and it would be odd for a student to sue over the disclosure that she got an A in a class and quite difficult to establish damages. Nevertheless, it strikes me as a lapse in judgment to reveal a student’s grade — even a good grade — over the Internet without first obtaining that student’s consent. Perhaps Levitt did obtain Rebecca’s consent, but as I read the post, it doesn’t seem likely he did. While Levitt’s infraction isn’t one I’m too worked up about, it does demonstrate the importance of having some self-restraint in blogging. It’s easy for all of us to dash off a post in haste without thinking of the implications.

Speaking of student grades, I’ve got a pile of exams I should be getting to . . .

9

SupremeCourtOf TheUnitedStates.blogspot.com?

The New York Times Book Review this week has an article (“What Are They Saying About Me?) about book authors and blogging. In addition to discussing the varying practices of authors in the blogosphere–some authors read obsessively what is said about their books, some don’t bother at all–the article discusses the possibility of blogs improving books before publication.

Cass Sunstein is quoted as saying that pre-publication comments at the Volokh Conspiracy affected the content of his recent book, Radicals in Robes. (Sunstein doesn’t actually say the comments improved his book but presumably that’s what he means.)

That got me thinking. I have previously complained about the poor quality of Supreme Court opinions.

Maybe a blog can help the nine Justices?

Here, then, is a simple proposal: The Supreme Court should operate a blog to generate input on the Court’s opinions before they are published. The postings could range from limited issues (“if we decide in the petitioner’s favor, is it better to remand to the lower courts?”) to entire drafts of opinions and requests for comments.

We’re accustomed to secrecy in decision-making at the Supreme Court. But there is no particular reason that has to be the norm. Improving the Court’s ultimate product is a good reason for lifting the curtain.

Moreover, the Court already gets input from non-parties in the form of amicus briefs. A blog would expand on that principle and allow input from a wider audience. A blog would also allow the Justices to get help when issues arise during the course of preparing an opinion—the point at which they most likely need assistance.

The Justices will need to give some thought to how to structure their blog. An unmoderated Supreme Court blog would attract a lot of comments, many of which would be less insightful and helpful than others. (Look at the reader comments at the Volokh conspiracy for evidence of that problem.) So perhaps comments should be limited to registered users. Perhaps registration should require some kind of screening process. Law professors might qualify more easily than, say, astrologers. Anonymous posts probably should not be allowed.

But with some careful planning, a Supreme Court blog could vastly improve the quality of the Court’s ultimate product.

Indeed, it has already worked for Radicals in Robes.

6

How Much Government Secrecy Is Really Necessary?

classified1a.jpg

Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said:

“The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”

I’m growing weary of arguments like this. How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance — possibly exceeding the limits of his lawful powers — put “our citizens at risk”? Why is every disclosure about the extent of the government’s surveillance somehow assisting the terrorists?

The argument seems to be that we can’t have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government’s activities.

Recently, I blogged about a story involving a secret DOD database of protesters. And there’s a debate going on about a secret regulation in the Gilmore case. The debate has focused on whether the secret information in the case is really a regulation, a law, or something else, but the larger question remains: Why does it need to be a secret?

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Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

whitehouse4.jpgYesterday, I blogged about a startling story in the NY Times about President Bush’s authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the “legal opinions that support the N.S.A. operation remain classified.”

Today in the NY Times is a follow-up story about the legal basis for the President’s actions. According to the story:

[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush’s assertion of his powers.

“Obviously we have to do things differently because of the terrorist threat,” said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. “But to do it without the participation of the Congress and the courts is unwise in the extreme.” . . .

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration’s past assertions of presidential powers.

“I was frankly astonished by the story,” he said. “My head is spinning.”

Professor Banks said the president’s power as commander in chief “is really limited to situations involving military force – anything needed to repel an attack. I don’t think the commander in chief power allows” the warrantless eavesdropping, he said. . . .

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a “foreign power” or an “agent of a foreign power.” 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party’s activities “may” or “are about to” involve a criminal violation. Id.

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Hollywood and “Asians”

geisha.bmpI used to live in South Korea; a fact, I think, that tends to make me a bit touchy about the linguistic, cultural, and — yes — physical differences between various Asian countries. People are fond of talking about things “Asian” without always realizing that there is a huge difference between say Thailand and Korea, or Japan and China. For example, linguistically Chinese has more in common with English than it does with Japanese or Korean. (Setting aside the vocabulary that both languages have borrowed from China.) Needless to say “Asians” also do not constitute a single ethnic group.

Which brings me to Memoirs of a Geisha, just released by Sony pictures. According to all of the reviews, it is a beautifully filmed movie. However, I can’t help but notice that in this very Japanese story all of the lead actresses are Chinese. I don’t think that there is any need to become some sort of fundamentalist about ethnic or national identities, but could you imagine Hollywood producing a movie about a group of Greek women and casting a trio of Norwegian actresses in the lead roles?