surveillance

President Obama finally weighed in on where the line should be drawn between surveillance and privacy in a speech today. The New York Times reports: the president "will require intelligence agencies to obtain permission from a secret court before tapping into a vast storehouse of telephone data, and will ultimately move that data out of the hands of the government."

The president also said surveillance of foreign leaders will be curtailed.

The president also suggested the creation of a "panel of advocates on privacy and technology issues who would appear before the Foreign Intelligence Surveillance court." The Times reports that the advocates would only appear in novel cases, but it's unclear who would decide which cases are novel.

John Bates, the former presiding judge of the Foreign Intelligence Surveillance Court, has "warned against a proposal to include in the court's proceedings an outside privacy and civil liberties advocate, who might take positions counter to the government when it seeks permission to collect huge swaths of Internet traffic, email addresses, and phone communications," Foreign Policy reports.

Bates, in consultation with other FISC judges, wrote that "the participation of a privacy advocate is unnecessary--and could prove counterproductive--in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interest of few persons other than the specificed target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation," according to a letter sent to U.S. Sen. Dianne Feinstein, chair of the Senate Intelligence Committee.

Instead, the judges suggest that a privacy advocate only be appointed at the discretion of FISC judges and not have independent authority to intervene in cases.

A defendant convicted in a terrorism case is challenging the use of warrantless surveillaince in his case, The Washington Post reports: "Late Monday, [Mohamed Osman] Mohamud’s attorneys filed a 66-page motion in U.S. District Court in Portland, Ore., seeking discovery of information that they believe will aid in an eventual challenge to the constitutionality of the law that authorized the surveillance used in his case. At the very least, they say, Mohamud deserves a new trial because he was not informed that the government used the warrantless program in bringing its case the first time." 

The D.C. Circuit ruled Friday that President Obama's Justice Department can keep secret a memo that established "the legal basis for telephone companies to hand over customers’ calling records to the government without a subpoena or court order, even when there is no emergency," The New York Times reports. The memo was deemed to be subject to the executive branch's internal deliberations privilege.

The Atlantic has this piece arguing that continuing to rely upon the U.S. Supreme Court precedent in Smith v. Maryland to justify the NSA's mass surveillance of phone calls in the USA no longer makes sense. The case involved the use of a pen register to investigate a burglar-stalker who allegedly made obscene phone calls to a crime victim, and the U.S. Supreme Court ruled that "a search only occurs when a citizen has a reasonable expectation of privacy" (which in Smith was not the case for phone calls made by a burglar from his home phone), The Atlantic further reports. Smith, cited by the Southern District New York decision upholding the NSA's surveillance of telephone metadata, is out-of-date for where technology now stands: "At the time Smith v. Maryland was decided, the courts did not anticipate this seemingly absurd result [of massive surveillance], in part because the case was decided prior to the era of cheap data storage, modern computing power, and sophisticated network analysis," The Atlantic concludes.

Navi Pillay, the United Nations human rights chief who has been asked by the international membership organization to prepare a report on protection of the right to privacy, said that international action led to the end of apartheid in South Africa and that it can again lead to the end of massive surveillance of online activity, The Guardian reports. The experience of international action on apartheid "inspires me to go on and address the issue of internet [privacy], which right now is extremely troubling because the revelations of surveillance have implications for human rights … People are really afraid that all their personal details are being used in violation of traditional national protections," Pillay said.

A federal judge in New York has issued a conflicting ruling with that of a federal judge in D.C. over the legality of the National Security Agency's surveillance of nearly every phone call made in America, CNN reports: "In his ruling Friday, U.S. District Judge William Pauley said the NSA's bulk collection of phone records under Section 215 of the Patriot Act was legal. The program was revealed in classified leaks by former NSA contractor Edward Snowden."

The National Law Journal's Zoe Tillman reports on the likely appeal of U.S. District Judge Richard Leon's decision that the National Security Agency's surveillance most likely violates the Fourth Amendment. The D.C. Circuit's makeup could be quite different by the time an appeal is ready to be heard: "Three new judges appointed by President Obama could be sitting on the D.C. Circuit by the time a panel is chosen to review Leon's 68-page ruling, giving the court a new dynamic."

The New York Times reports that the White House has asserted the state secrets privilege in two federal cases pending in California. The plaintiffs are challenging the constitutionality of the National Security Agency's warrantless surveillance programs. "The government said that despite recent leaks by Edward J. Snowden, the former N.S.A. contractor, that made public a fuller scope of the surveillance and data collection programs put in place after the Sept. 11 attacks, sensitive secrets remained at risk in any courtroom discussion of their details — like whether the plaintiffs were targets of intelligence collection or whether particular telecommunications providers like AT&T and Verizon had helped the agency," The Times reports.