What is a reasonable expectation of privacy in the modern world?
- Smith v Maryland
- Google creates more data in two days than was produced from the beginning of humanity until 2003. In 2,200 words, Google's privacy policy puts few restrictions on how much it can collect or use.
- Facebook says it has more than 1.15 b
Is Congress equipped to deal with constantly evolving modern technology?
No. Gridlock. Checks and balances and party polarization.
Is Edward Snowden a whistleblower or a traitor?
Traitor. Espionage Act of 1917 which prohibits the publication of anything contrary to the war effort. He has over a half million documents which can injure our ability to fight terrorism.
Geneva Convention
- A convention that established the establish the standards of international law for the humanitarian treatment of war.
- Defined a combatant of war as all members of the armed forces of a party to the conflict that wear their parties distinctive emblem a
Hepting v AT&T
- Filed by Electronic Frontier Foundation against AT&T for giving up phone data
-Ninth Circuit cited retroactive legislation
- The FISA Amendments Act of 2008 grants telecommunication companies immunity when giving up personal information
Protect America Act of 2007
- Result of 2005 NYT articles exposing Bush's executive ordered warrantless wiretapping program
- Section 702: International communications that are reasonably believed to not target anyone within the United States may be wiretapped with out a warrant
USA today articles of 2006
Revealed that the NSA has been collecting metadata of calls for 7 years before this article was published and approximately 1.9 million calls were collected
FISA Amendment Act of 2008
- Grants civil immunity to telecommunication companies when they give up information to federal agencies
- Re-authorized many parts of the protect America Act of 2007 including section 702
Section 215 of the Patriot Act
Government may request data or achieve a warrant if what they seek is relevant to ongoing terrorist activity
Privacy Act of 1974
- Passed after watergate when individuals were worried about government surveillance
- Prohibits the disclosure of info without an individuals consent unless through a statutory exception
- Permits and individual to review and amend records pertaining to
Prism
- An NSA program that collects internet information and requests tangible information from the major internet companies which include Microsoft, Google, Yahoo, Facebook, Youtube, Skype, AOL, and Apple
- Prism accounts for 91% of the information that the N
Against NSA surveillance
Chilling effect. Market place of ideas. Justice Holmes talks about in his dissent in Abrams v United states.
Klayman v Obama
Decided: Dec 16, 2013
Judge: Judge Leon
Supporting decision:
- Although Smith v Maryland establishes that information given up to a third party does not have a reasonable expectation of privacy, the decision is out-dated and un-true. We should follow the
Surveillance in the UK
Advanced cameras are on 24/7 and they track unusual behavior. David Marry, french man, suspected of acting unusual in subway station. Police arrested him and search him and then his home to find nothing incriminating. Anyone suspected of terrorism quickly
NYPD's surveillance programs
- Nexus program which encourages business owners to report suspicious purchases
- Ring of steel which is made up of 4,000 sophisticated cameras that detect questionable activity
- NYPD said they have stopped 16 local terrorist attacks thanks to their surv
Anti-cameras
Create a chilling effect. Surveillance cameras and video analytics can be abused. Authoritarian regimes in countries like China and Iran employ these tools to monitor peaceful critics to suppress dissent.
NYPD surveillance of muslims
Background: After 911 the NYPD began extra surveillance of Muslim in order to protect national security. The NYPD has rankers that surveil muslims neighbor hoods and mosque crawlers that surveil inside the mosques.
For:
- As Chief Justice Stone states in
Privacy in Schools
Texas NorthStar School District
- In the North Star School district students are forced to wear ID tag that allow the school to monitor where their students are on campus
- Against: In the case of Tinker v Des Moines the Supreme Court established that con
Florida v Jardines
Facts: Joelis Jardines was convicted for growing Merijuana based on information obtained on his front porch
Ruling: The court held that the curtilage around one's home is part of the home, and therefore, 4th amendment protections apply, requiring a warran
US v Jones
Year: 2012
Facts: Antoine Jones was convicted for possession of drugs based off of information obtained from a GPS that was installed on his car
Holding: The cour held that the installation of a GPS constitutes as a search under the 4th Amendment
Agree: I
Maryland v King
Facts: Alonzo King was arrested for assault and Maryland collected his DNA under the Maryland DNA Collection Act which allows the collection of DNA from an someone arrested for a crime of violence or burglary, linking King to an unsolved rape.
Against: Ki
Virginia Abortion Law
Before a women can receive an abortion she must undergo an ultrasound and state-directed counseling to discourage her from having one
Assassination of Anwar al-Awlaki
- Anwar al-Awlaki, a US citizen, was a terrorist and senior operative of al-Qaeda. He was assassinated in Yemen for treason.
- 3.3 "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in
Mohamed Mohamud
Background
- Born in Somalia, naturalized, grew up in Beaverton, dropped out of Oregon State University
- First caught the FBI's attention when he was exchanging emails with a recruiter for terrorism who was returning back to the middle east
- Mohamed wor
How do you get a warrant?
Then, the warrant is prepared. A warrant is an official document signed by a judge permitting law enforcement to enter the premises for a search to take place.
Do you support the exclusionary rule
The exclusionary rule was established in Weeks v. United States and incorporated the states in Mapp v. Ohio. It holds that evidence obtained in violation of a defendant's Fourth Amendment rights is inadmissible in court.
No right to privacy in the constitution
Justice Taft in Olmstead and in Justice Hugo Black's dissent in Katz they stated that the Fourth Amendment only applies to an actual physical examination of a person's papers, tangible material effects, or home
Understand what substantive due process is and how the right to privacy relates to it
In Justice Harlan's concurrence in Griswold v Connecticut (1965), he found a right to privacy in the liberty clause of the 14th Amendment which states that "no state shall...deprive any person of life, liberty, or property, without due process of law." Th
Barack Obama on Surveillance
- During his 2008 election, Obama was fierce critic of the surveillance program in the Patriots Act and vowed to end "illegal wiretapping".
- However, he supports the NSA program and legislation from the Bush administration granting immunity to telecommun
Edward Snowden
? Edward Snowden is a former NSA worker who leaked information about the NSA surveillance to the public.
? Since he made these leaks, he has fled the United States, and sought political asylum in Russia.
? He has been given two charges of espionage and on
NSA international surveillance
- NSA surveils Europe and has been hacking mainland Chinese and Hong Kong
computers since 2009
? Foreign governments' responses:
? Many countries are angry and are demanding answers from the administration including (Spain, Brazil, Mexico, Germany, France
Bivens v Six Unknown Agents
Bivens' house was searched without a warrant. The court ruled than an individuals whose constitutionally guaranteed rights are violated can seek a remedy in a civil court called implied cause of action.
False light tort
False light invasion of privacy occurs when information is published about a person that is false or places the person in false light
Virgin Declaration of Rights
Section 10 of the Virginia declaration of rights places a ban on general warrants as is reflected in the 4th Amendment to the constitution. This is routed abuse of general warrants in the colonies, violating the citizens right to privacy
Exception to the warrant requirement
Anything that is illegal in the public view way can be searched and seized without a warrant
Olmstead v United States
Year: 1927
Facts: Roy Olmstead, a suspected bootlegger was convicted of violating the Nation Prohibition Act through information obtained from unwarranted wiretaps that were located around his home
Ruling: The court found that the 4th Amendment only appli
Katz v United States
Year: 1967
Facts: Appellant Katz was convicted for transmitting wagering information by telephone across state lines. The evidence used to charge him was obtained from unwarranted wiretaps of the phone booth he was using.
Ruling: The court held that the f
Grizwold v Connecticut
Year: 1965
Facts: Appelant Grizwold, Director of the Planned Parent Hood League of Connecticut, gave counseling information on the use of contraceptives to a married couple which violated a Connecticut law.
Ruling: The court ruled that there is a right to
Smith v Maryland
Year: 1979
- Smith was convicted for burglary off of facts that were gather from the pen register in his phone
- He appealed on the basis that the state of Maryland did not obtain a warrant to search his phone, yet the court found that a warrant was not n
Hirabayashi v United States
Facts: Gordon Kiyoshi Hirabayashi who was a student at the University of Washington was convicted of violating the curfew and relocation order of President Roosevelt after the attacks on Pearl Harbor.
Ruling: The court found that the President acted withi
Ex Parte Milligan
Facts: Lambden Milligan engaged in acts of disloyalty against the union and was sentence to death by a military commission in Indiana. He petitioned for a writ of habeas corpus.
Ruling: The court found that civilians must be tried by civilian courts not m
Frohwerk v United States
Facts: Jacob Frohwerk, a writer for the Missouri Staats Zeiung, a newspaper published in Kansas City, Missouri, issued a series of twelve editorials that were in violations of the Espionage Act of 1917.
Ruling: The court decided that there is a valid inte
Alien and Sedition Acts
The Alien and Sedition Acts of 1798 established the government's power to suppress dissenting views deport and detain those already in the United State simply for their political beliefs which were determined through spying. This is an example of spying e
Pierce v. Society of Sisters
Struck down the Compulsory Education Act which forced kids to attend public schools essentially eliminating parochial schools. The Supreme court reasoned that the right to choose where to educate one's child is a private matter under the Fourteenth Amendm
Gibson v Florida Legislative Committee
Facts: The Legislative Investigative Committee subpoenaed Gibson, president of the Miami branch of the NAACP at the time, to turn over a membership list.
Ruling: Justice Goldberg, with the majority opinion state that if there is a legitimate state interes
Roe v Wade
Year: 1973
Facts: Roe, a Texas resident, sought to terminate her pregnancy by abortion. She challenged the Texas law which only allowed for an abortion when the women was at risk of dying.
Ruling: The court held that a women's right to an abortion fell wi
Did the framers understand a need for secrecy?
- In Article 1, Section 5 of the Constitution states that both houses have a duty to publish a journal of proceedings unless in their judgment it required secrecy showing the that framers did understand a need for secrecy
- And, the Philadelphia Conventio
Bradley Manning Leaks
- He leaked documents on US military operations in Iraq and Afghanistan which was a bit over 250,000 diplomatic cables from 250 embassies
- Leaks such as these are treason and should be treated as such under Article 3, Section 3 of the constitution. There
How NSA collects data
Prism
- Prism which requests that companies turn over information under the power granted to them in the section 207 of the FISA Amendment Acts of 2008
- The program is court-approved but does not require individual warrants. Instead, it operates under a
Why the NSA collects data
- They collect it all and are storing it
- This allows them to go back into what they have collected to analyze the data, but it requires court approval
- This is why the NSA has a facility in Utah that has the capability to store 5 data-bytes of informat
FISA court
- 11 judges, 7 year terms
- Judges are appointed by the chief justice of the Supreme Court out of a pool of judges in the federal district courts
- Last three Chief Justices have been republican which is why 64% of the judges are republican. The FISA act
NSA Successes
- Found Basaaly Maolin, a San Diego man who was responsible for sending $8,500 to Somalia to support Al Shabab, the terrorist group that has taken responsibility for the attack on Kenya in September which killed 39 people and wounded more than 150 accordi
Is our personal information online safe?
Although we use encryption to keep it safe, the documents released by Snowden show that the NSA along with their British intelligence allies have successfully broken much of the online encryption
Senator Dianne Feinstein and Judge Claire Eagan on metadata
Senator Dianne Feinstein, the chair of the Senate intelligence committee, wrote in the USA today that only metadata is collected not content, location, or name of the caller, simply information that is on the phone bill which is given up to a third party,
US senators want change in FISA and NSA
- Ron Wyden: introduced the USA Freedom Act, a bipartisan reform bill aimed at reigning in surveillance
- Jeff Merkly: more transparency in the FISA court
- Dianne Feinstein: After the NSA had listened to Angelo Merkel, the British Chancellor's, voicemail
ACLU v Clapper
Decided: Dec 27, 2013
Judge: Pauley
Facts: Suit brought on by the American Civil Liberties Union, a federal district Judge Pauley in the Southern District of New York reviewed the same NSA program that was challenged in Klayman
Ruling:
Constitutional clai
Who represents the public at the FISC?
No one. Applications for surveillance orders from the FISA court are non adversarial. Judges on their own are suppose to ensure that the government meets legal standards. Yet, 63% of the judges are republican which can cause a bias panel that does not que
4th Amendment history
- During protest against general warrants of 1761 in the Massachusetts Superior Court led by James Otis, a lawyer from Boston
-James Otis: "Now one of the most essential branches of English liberty, is the freedom of one's house. A man's house is his cast
9th Amendment
- Just because there are certain enumerated rights in the Constitution it does not mean that there are not others that exist. This implies that we have natural rights beyond those acquired rights that government give us. I believe this is the most importa
A connected world
More than 550,000 miles of undersea fiber-optic cable wrap around the globe to electronic communications and phone calls and over 80% of them come through the United States which shows that it is hard to sort between international and domestic communicati
James clapper lies
Ron Wyden asked if he had collected any information at all on Americans and James Clapper, Executive Director of the NSA said no in an open confession in congress which is evidently a lie after Snowden's leaked the dragnet surveillance
What do you think about the recent Utah polygamy decision? Should the right to privacy apply here?
Facts: In a recent Federal District Court ruling Brown v. Buhman, the court struck down part of a Utah law banning cohabitation which is the act of entering into a relationship with more than one person but upheld part of the law banning bigamy.
Ruling: T
Should freedom of expression ever be limited to protect national security? If so, when?
In the case of Employment Division v Smith the court held that if the government has a compelling state interest they may limit in religious freedom and under the same standards I believe that freedom of expression should always be limited for national se
Is it ever justifiable for the government to target minority group for special surveillance?
Yes, it can be justified
- After 911 the NYPD began extra surveillance of Muslim in order to protect national security. The NYPD has rankers that surveil muslims neighborhoods and mosque crawlers that surveil the inside of mosques
- As Chief Justice Stone
Would you make any changes to FISA?
Additionally, I would amend section 215 of the Patriot Act from allowing the government to collect information relevant to an authorized government investigation to requiring them to show a necessary purpose. And, I would change the purpose of the surveil
What privacy rights do students in public school have?
They have very little privacy rights, in the Texas North Star School district students are forced to wear ID tags that track each student's location on campus to help stop students from skipping class
What are your biggest concerns about privacy in the 21st century?
My biggest fear is that surveillance laws are interpreted secretly within the FISC causing there to be no check on how surveillance law is interpreted and executed violating our right to privacy without us even knowing
Is NSA warrantless wiretapping constitutional?
Yes (ACLU v. Clapper)
- I agree with Judge Pauley's argument. Even in the opinion for Klayman, the judge admits that "what metadata is has not changed over time". Metadata is the information about data, such as time and number, and Smith v. Maryland still
Explain how the 14th amendment has helped advance the right to privacy.
Pierce v. Society of Sisters: parents have the liberty guaranteed to them in the Due Process Clause of the 14th Amendment to choose where to educate their children which implies the privacy in family decisions such as these
Surveillance in Oregon
A 2009 law limits the collection, storage, and sharing of information obtained from ID scanners by private corps.
- However, the Portland Police has started a program, with the consent of many local bars, to scan ID's at the door when entering a bar. The
Oregon HB 2710
would require a warrant and established probable cause to use a drone because it is a very intrusive tactic that the state can use against an individual. Such an intrusive tactic as Justice Brandei's argued the 4th Amendment protect individuals against in
Pinker v Huerta
- A federal district court ruled that there was no law banning the use of drones under 400 feet by private entities, although the FAA was cracking down on private groups for using them.
Sorrell v IMS Health
- Supreme Court struck down a Virginia law that prohibited the disclosure of prescribing practices of individual doctors. Court held it violated the First Amendment.
Scott v Harris
- SCt found that terminating a high speed chase that the expense of the fleeing motorist's life did not violate the 4th
Tenesse v Garner
- SCt held that if there is probable cause that a suspect may pose life threatening danger, police may use deadly force for protection
Coffin v US
- Established an adversarial system in which a defendant is innocent until proven guilty
- The term was first coined by English Lawyer Sir William Garrow
- The term is also used in Article 11 of the UDHR
Ex Parte Merryman
During civil war President Abraham Lincoln suspended the writ of habeas corpus. Court held he was not acting within his 2.2 powers to do so because the power was an Article 1 power and therefore reserved to the legislative branch
Carroll v United States
Facts: George Carroll, suspected of violating the National Prohibitoin Act which provided that officers could make warrantless searches of vehicles, boats, or airplanes when they had reason to believe illegal liquor was being transported and that law enfo
Fernandez v California
Facts: Walter Fernande was suspected for robbery, arrested, at his home after the police saw it to be evident he had beaten Ms. Rojas who lived with him. After arrest, police returned and Ms. Rojas let them in.
Holding: police may enter one's home if an o
Riley v California (pending)
Facts: David Riley was convicted of attempt at murder and assault. He was not arrested at the scene but later in his car. The police arrested him and searched his phone which had a passcode on it.
Against: The fact that he had a passcode on the phone mean
Legislation that should exist to protect our privacy right against private corporations
Something like Canada's Personal Information Protection and Electronic Documents Act (PIPEDA) that sets out ground rules for how private sector organizations may collect, use or disclose personal information in the course of commercial activities. The law
California Bill Against NSA
Would prohibit the state and its localities from providing "material support" to the National Security Agency which would essentially cut off their water and electricity supply from public facilities and research partnerships with universities.
Utah suit: privacy against license plate reader
Argument: whether a Utah Law banning the use of automatic cameras to collect images, locations, and times of license plates in constitutional
No it isn't:
- Digital Recognition Network: speech to do so, additionally license plates do not have a reasonable
Private data brokerage firms
- According to a 36 page report by the Senate Commerce Committee on just how unregulated the industry of data brokerage, they found it to be worth 156 billion dollars in 2012 alone which is twice the intelligence budged of the US according to Senator Jay
Senator Al Franken's privacy bill
- Minnesota Senator
- Would prevent the collection of an individuals location by companies without getting affirmative consent from the individual
- Has so far cleared Senate Judiciary Committee
Talmudic history of double jeopardy
The Talmud relates that Rabbi Akiba relied upon this verse to explain why Jewish
law prohibited a person liable to a death penalty by a human tribunal from also
being flogged.
Haig v Agee
- "No interest more compelling than the security of the nation"
- Case decided the Constitutionality of revoking Philip Agee's passport because he was purposely seeking to expose CIA programs wherever and whenever possible
Machiavelli
When do you tell the truth in government and when do you, for reasons of state, lie? You do in government things you would never do in your personal religious morality. The position of government and politics almost force you to.
Federal judges suggest reforms to collection of metadata
Two federal magistrate judges, John Facciola in Washington, D.C., and David Waxse in Kansas City, Kan. have suggested Internet service providers and other Web firms could do their own searches based on specific guidance from the Justice Department and tur
Sen. Al Franken's Bill
The Location Privacy Protection Act of 2014 is meant to close legal loopholes that allow stalking applications to exist on smartphones. Sen. Franken's bill would address this problem by requiring all companies to get customers' permission before collectin
Danger of private companies
- Commercial data mining
- Data brokerage
- Tailored adds
- Ability to have their info. easily subpoenaed
- Google creates more data in two days than was produced from the beginning of humanity until 2003. In 2,200 words, Google's privacy policy puts few
History of surveillance post 911 era
- Section 215 of the Patriot Act: request any evidence relevant to foreign intelligence
- Authorization of Use of Military Force: "Blank check" to President Bush to combat terrorism and bring Al Qaeda to justice
- Protect America Act of 2007: civil immuni
Legislative power to pass FISA + Amendments
- Necessary and Proper: 1.8
- Raise support an army: 1.8
- Commander and chief: 2.2