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In the New York Times: Dan Solove on Spying

Concurring Opinions readers should check out Adam Liptak's article in the New York Times today, Little Help From Justices on Spy Program. Dan Solove is among the law professors quoted on the constitutional issued raised by the NSA spying program.

Posted by Jason_Mazzone at 11:33 AM | Comments (0) | TrackBack

The President's Inherent Authority Argument

There are some great posts over at Balkinization examining the President's inherent authority to conduct warrantless surveillance.

Here are some key excerpts:

Marty Lederman, "Inherent Authority" to Violate Federal Law? (Dec. 22, 2005)

"I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown "Category II" case. . . .

But the critical point for present purposes is that, as Prof. Griffin emphasizes, the Nation had exactly this debate in the mid-70s -- after gross abuses in connection with such warrantless surveillance -- and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance. . . .

That puts us in Youngstown Category III, where the President's constitutional authority to act -- even if he had it in the first place -- is at its 'lowest ebb.' . . .

The Administration's defenders are citing a 2002 dictum by the FISA Court of Review: "We take for granted that the President does have that authority [to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (emphasis added). That throwaway line -- not germane to the holding in that case -- was almost certainly written by Judge Laurence Silberman, who (I am told) testified in his personal capacity to the same effect in the mid-1970's, when FISA was being considered. The dictum is, in my view, dead wrong. . . . If Silberman and the Bush Administration are correct, then there's no need for FISA at all -- nor for the FISA Court. The President may simply proceed with surveillance on his own iniitiative, if he thinks it will help in the war on terrorism."

Jack Balkin, Youngstown and The President's Power to Torture (July 16, 2004) (provides useful background about Youngstown Sheet and Tube Co. v. Sawyer (U.S. Supreme Court 1952), where President Truman ordered the seizure of steel mills in the name of national security during the Korean War)

"[T]he question before the Court was whether the President's powers as Commander-in-Chief gave him authority in an emergency to seize private property. . . .

Justice Jackson's opinion . . . offered a famous delineation of the possible relationships between the President and Congress:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our
constitutional system.

. . . . September 11th changed everything, we are told. But it is important to remember that the Justices who decided Youngstown had also seen war, plenty of war. Pearl Harbor was only a decade previous, and since that day the United States had been twice at war, and had continuously sent its forces around the globe to protect its interests. These Justices well understood the importance of national security to national survival. Indeed, they were all appointees of Roosevelt and Truman, Presidents who had taken the country to war. Yet they saw beyond the urgencies of the moment, and the ubiquitous declarations that war had changed everything. They upheld the principle of checks and balances, and rejected the claim of an unlimited Executive. And they helped preserve our democratic system of government in the process."

Posted by Daniel Solove at 02:29 PM | Comments (1) | TrackBack

NSA Surveillance Blog Post Roundups: More Posts

For those interested in blogospheric opinion about the NSA surveillance issue, I've been updating NSA Surveillance: Blog Post Roundup II with new posts I find to be of interest.

Posted by Daniel Solove at 06:35 PM | Comments (2) | TrackBack

Judge Posner's Troubling Call for Massive Surveillance

Judge Richard Posner has written an op-ed in the Washington Post today where he calls for a massive program of surveillance of U.S. citizens -- their email, documents, phone conversations, nearly everything they say or do -- regardless of whether they are suspected of any wrongdoing or not. Posner's argument is quite startling and troublesome. Posner writes:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

In other words, Posner is saying that so long as the data is gathered by computers, there's no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: "Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy." Posner's conclusion that records that are anonymized could still violate people's privacy is a radical one, and I find it hard to square with what he says in the op-ed.

So, taking Posner's argument to the extreme, there's no problem if the government were to wiretap, install video cameras in our homes, collect every document we ever wrote, and so on -- so long as the information were collected by computers and not seen by human eyes. But what about the vast power this gives the government? What about the potential for government abuse? What about the chilling effects on people's speech and freedom? Posner ignores these things.

Posner goes on to write:

The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.

According to Posner, the FISA is too restrictive because it doesn't allow surveillance on innocent U.S. citizens. However, the FISA protects U.S. persons from broad surveillance to prevent the government from systematically spying on citizens. Posner would sweep aside these protections, many of which are in place because of the Fourth Amendment.

Posner says:

Many of the relevant bits [of data for learning about terrorist activities] may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

And how can we limit the government to just using it for "national security"? What constitutes "national security" versus ordinary crime? As I wrote in an article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004): "What precisely is 'national security'? Is a mass murderer on the losse a national security issue? Some have even argued that drug trafficking is a natiional security issue." The line between national security and domestic criminal activity is a fuzzy one. Moreover, many government abuses have been done under the cover of so-called "national security."

Posner continues:

The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.

If the danger is from weapons of mass destruction falling into the hands of terrorist groups, then perhaps we should devote our resources in tracking down loose nuclear weapons around the world. But establishing a massive surveillance network within the U.S. seems like a diversion from this task.

For more thoughts on Posner's op-ed, see:

Marty Lederman, Judge Posner and "Ad Hoc Initiatives" (i.e., Presidentially Sanctioned Felonies) (Dec. 21, 2005)

Kieren Healy, Posner Forgets Himself (Dec. 21, 2005)

Posted by Daniel Solove at 11:12 AM | Comments (7) | TrackBack

Hypothetical: What If President Bush Were Correct About His Surveillance Powers?

There's been some terrific analysis in the blogosphere about whether President Bush is correct that he had the power to authorize warrantless surveillance. (See here and here for a roundup of posts.) The arguments thus far focus on what the President has already done, but the President has stated that he will continue the warrantless surveillance "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

Suppose the President is right that he has the power to do this based on his "inherent authority" as Commander-in-Chief. The implications are quite alarming. It means that the President, in his sole discretion, can secretly authorize the NSA to engage in electronic surveillance on U.S. citizens until the War on Terrorism is over. This is a war without a foreseeable end. Under his argument, there seems to be no reason why he can't authorize other agencies to engage in surveillance, such as the FBI and CIA. And why does it need to be limited just to wiretaps? Perhaps video surveillance, bugs, searches of homes, gathering documents, and more.

Under his argument, Bush could continue to ignore the requirements of any law that stands in his way. What could Congress do? Congress could try to enact a law to clarify that it wants the President to abide by existing laws. Of course, the President could veto that law, but suppose Congress overrode the veto. According to the President's logic, he could still say that his "inherent authority" allows him to ignore it.

The problem with Bush's argument is that he has articulated virtually no conceivable limits to his power. The stakes of the debate aren't just about what the President has already done. They are about what the President has defiantly declared he has the power to do in the future.

Posted by Daniel Solove at 03:09 AM | Comments (13) | TrackBack

Federal Judge Resigns from the FISA Court

The Washington Post reports:

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Posted by Daniel Solove at 02:58 AM | Comments (1) | TrackBack

NSA Surveillance: Blog Post Roundup II

In addition to the blog post roundup I did yesterday, here are more blog posts about Bush's NSA surveillance worth reading:

David Cole, Bush's Illegal Spying (Salon, Dec. 20, 2005)
"Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy's communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority."

Marty Lederman, Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless (Dec. 20, 2005)
"1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities.

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program."

Bruce Schneier, NSA and Bush's Illegal Eavesdropping (Dec. 20, 2005)
"Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful. . . . Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It's time we brought back the security system that's protected us from government for over 200 years."

Lyle Denniston, Analysis: Collision Course on "Inherent Power"? (Dec. 19, 2005)
"In a remarkable public discussion over the past three days of one of the most closedly guarded, secret government programs, President Bush and his top aides have provided basically two legal arguments to justify his orders of electronic eavesdropping on Americans during the war on terrorism. One of those arguments is a familiar one, a constitutional argument that has been relied upon repeatedly by the government from the very beginning of that war -- yet not accepted, so far, by the Supreme Court, or even by any single Justice. The other is a fallback argument, but one that, interestingly, now reflects a significant change in the government's thinking over the past few years."

UPDATE: More New Posts Worth Reading (Dec. 21, 2005)

Will Baude, Inconsistency, Legal Argument, and the War on Terror
"To be sure, it is possible that the administration will eventually reveal that there is method to its madness, but it increasingly looks as though the top of the administration sees the laws of the United States as if they were political hurdles to dodge, not something that the President is Constitutionally obligated to 'take care . . . be faithfully executed.'"

Orin Kerr, A Few Additional Thoughts on NSA Surveillance
"Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn't want to do that in public given that the program is classified. I don't know how likely this is, but it's certainly possible when you're dealing with a secretive agency like the NSA. So in the end, my take is the same as it was before: the program probably violated FISA, but it depends on some details we don't know."

Cass Sunstein, Presidential Wiretapping: Disaggregating the Issues
"But if surveillance is taken to be an ordinary incident of war, and if the President has a plausible claim to inherent authority, this argument is substantially weakened. Note that the President isn't forbidden, by the precedents, from arguing that [FISA] is unconstitututional insofar as it forbids him from engaging in the relevant activity. . . ."

Geoffrey Stone, King George's Constitution
"Despite this history, Mr. Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil is "lawful." It is not. It is a blatant and arrogant violation of American law. If Mr. Bush wanted the authority to undertake such activities, he should have gone to Congress and sought authorization, out in the open. He did not follow this course, both because it would not have been granted and because it would have warned the evil-doers that we were monitoring their communications. Give me a break! Bush apparently believes that the evil-doers assume we act within the bounds of our own Constitution. So, we’ll trick them. We won’t. Now, there's a wise theory of government for you!"

Posted by Daniel Solove at 02:38 PM | Comments (1) | TrackBack

Wikipedia Irony: Jimmy Wales Edits His Own Entry

A story in Wired reveals that Jimmy Wales, the founder of Wikipedia, has been editing his own Wikipedia entry:

Public edit logs reveal that Wales has changed his own Wikipedia bio 18 times, deleting phrases describing former Wikipedia employee Larry Sanger as a co-founder of the site.

The changes were reported Monday by technology writer Rogers Cadenhead on his blog, Workbench, spurring Sanger to launch a dialogue on Wikipedia about revisionist history.

In an interview with Wired News, Wales acknowledged he's made changes to his bio, but said the edits were made to correct factual errors and provide a more rounded version of events.

While he said that Wikipedia generally frowns on people editing entries about themselves, there is no hard and fast rule against it.

"People shouldn't do it, including me," he said. "I wish I hadn't done it. It's in poor taste.... People have a lot of information about themselves but staying objective is difficult. That's the trade-off in editing entries about yourself.... If you see a blatant error or misconception about yourself, you really want to set it straight."

According to technology writer Cadenhead, who ferreted out the record of changes, Wales has altered sentences that gave Larry Sanger credit for co-founding Wikipedia seven times.

Recently, Adam Curry got shamed across the blogosphere for editing part of an entry pertaining to himself.

Should people be editing or creating entries for themselves in Wikipedia?

On the one hand, people's self-interest might prevent them from editing objectively. People also might use Wikipedia as a kind of vanity press of sorts, creating entries about themselves filled with praise. I'm actually surprised that there isn't more of this going on, as it can be quite flattering to have an entry for oneself or one's organization in Wikipedia.

One the other hand, who knows better about Jimmy Wales than Jimmy Wales? If the people actually involved in various entries are shamed into not being able to edit them, we lose a valuable source of information.

Related Posts:
1. Wiki Thyself
2. Other posts about Wikipedia are collected in the Wiki Category Archive

Posted by Daniel Solove at 11:06 AM | Comments (6) | TrackBack

What Else?

Congress is gearing up to investigate the NSA domestic surveillance program. That’s better than Congress doing nothing—but it doesn’t give much reason to cheer. The NSA program is only one of a recent series of disturbing revelations about the Administration and the war on terror: detention of suspects with little or no process; secret prisons in Europe; people being hooded, stuffed in planes, and delivered to foreign governments; and, quite possibly, the use of torture.

If Congress is serious about checking Presidential powers, it needs to look far beyond what it already knows has taken place.

Rather than simply get to the bottom of domestic surveillance, Congress needs to get a better handle on what else the Administration is doing and plans to do in this war.

At this point, very little seems unimaginable. Are there, for instance, American citizens held secretly in this country or abroad? What kinds of interrogation techniques have American officials practiced and what are they trained to do? What plans are currently in place to get information from a captured suspect in the event of a ticking bomb? Are other agencies involved in spying without warrants? Have people been removed from the United States without a hearing? Under what circumstances are detainees denied counsel? Has the government asked anybody to give up U.S. citizenship in exchange for dismissing criminal charges?

Have family members of a suspect been taken into custody to exert pressure on the suspect? Has there been spying on leaders of political organizations or members of government? Who will be rounded up in the event of another attack? Is there a plan for martial law?

Congress has the resources to explore these kinds of issues. Congress might of course—and, to a large extent, it probably should—conduct its investigation without revealing what it finds to the general public.

But the bottom line is this: when all is said and done, history must show that whatever happened in the war on terror, Congress knew about it and gave approval.

Posted by Jason_Mazzone at 10:58 PM | Comments (1) | TrackBack

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."

Daniel Solove, Beyond His Power: Bush's Authorization of Warrantless NSA Surveillance (Dec. 19, 2005)
"It is hard to imagine that authorizing military force authorizes the President to disregard a litany of laws at the President's whim. If so, the Congress must be extremely careful in authorizing military force in the future, because such authorization would turn over to the President the right to contravene an unspecified number of laws."

Daniel Solove, How Much Government Secrecy Is Really Necessary? (Dec. 17, 2005)
"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?"

Daniel Solove, Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance? (Dec. 17, 2005)
"Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I'm not an expert on the intricacies of the executive's military powers, so perhaps there's a justification. . . . I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law."

Daniel Solove, President Bush, the National Security Agency, and Surveillance (Dec. 16, 2005)
"So, in other words, the President can secretly authorize secret domestic surveillance by an agency that typically conducts surveillance abroad . . . and do so based on a legal rationale that is secret. This is deeply troubling."

Marty Lederman, Which Is It, Mr. President? (Dec. 19, 2005)
"[I]f the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act."

Marty Lederman, Definition of "Audacity" (Dec. 19, 2005)
"The odd thing, of course, is that the Administration specifically went to Congress with a package of statutory authorities -- many related to wiretaps and surveillance -- that it thought were necessary to fight the battle against Al Qaeda. It was called the PATRIOT Act. Therefore, it's understandable that two reporters at today's conference asked the AG why they didn't simply ask Congress for a simple amendment to FISA, if this eavesdropping authority was as critical as the Administration now claims."

Juliette Kayyem, Wiretaps, AUMF and Bush's Comments Today (Dec. 17, 2005)
"And, in any event, can't we at least know how many other statutes have been trumped by interpreting the AUMF or the CiC clause so expansively?"

Peter Swire, Why the NSA Wiretapping Is Illegal (Dec. 19, 2005)
"Government officials can only wiretap “as authorized by statute” and the only statutes that count are Title III and FISA. The NSA wiretaps did not use the judicial procedures of either Title III or FISA."

Seth Weinberger, Declaring War and Executive Power (Dec. 16, 2005)
"Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal. And legal or not, it is certainly troubling."

Steve Vladeck, No, Mom, the Government Isn't Listenin--Umm, I'll Have To Get Back To You (Dec. 15, 2005)
"[W]hen the government conducts a campaign of domestic, internal surveillance that seems lacking for both historical and legal precedent, is it really responsible journalism to not report on that campaign for an entire year?"

Adam Shostack, Government Secrecy and Wiretaps (Dec. 17, 2005)
"[T]he correct response would be to follow the law in wiretapping, because the government already has the authority to do it anywhere it has any reasonable reason to want to. If the law had been obeyed, there would be no news."

Michelle Malkin, Red Alert: Chicken Littles on the Loose (Dec. 16, 2005)
"If the Bush administration chose to pursue FISA warrants, failed to obtain them, let the information go to waste, and allowed another attack to occur as a result, is there any question the finger-waggers at the NYTimes would be the first to attack the President for failing to do everything necessary to prevent it?"

Will Baude, Presidential Authority, A Lament (Dec. 19, 2005)
"It seems exceedingly likely that somebody in the executive branch is confusing normative arguments about what good law is as (impermissible) claims about what kind of laws we have. I believe in Presidential interpretive power, the unitary executive, and so on. So it is particularly disappointing to see a President like this one and his lawyers make so much out of the importance of a strong executive, and then proceed to abuse their office in this way. . . ."

Cass Sunstein, Presidential Wiretaps (Dec. 19, 2005)
"The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)"

Eric Muller, Lawless Like I Said (Dec. 19, 2005)
"Orin Kerr's verdict is in over at the Volokh Conspiracy. He says it's a tentative view, but here's my quick and dirty summary: the President's domestic eavesdropping program is lawless."

Stephen Bainbridge, Foreign Policy Rant of the Day (Dec. 16, 2005)
"Coercive interrogations. A gulag of secret prisons. And now warrantless surveillance. We're supposed to be better than this. . . . Of the Founders who pledged "their lives, their fortunes and their sacred honor" as signers to the Declaration of Independence, five were captured as traitors and tortured before they died; twelve had their homes ransacked and burned; two lost their sons in the Revolutionary War; another had two sons captured; and nine died from wounds or the hardship of the war. But too many want to trade their sacrifices away for a mess of security pottage."

Spencer Overton, Judge Damon J. Keith: No Warrantless Wiretaps of Citizens (Dec. 18, 2005)
"After law school I had the good fortune to clerk for U.S. Court of Appeals Judge Damon J. Keith. . . . Judge Keith decided that President Richard Nixon and Attorney General John Mitchell could not engage in warrantless wiretap surveillance."

Ryan Singel, It's Not the Crime, It's the Rationale (Dec. 17, 2005)
"The government has the power to start such wiretaps immediately, so long as they promptly notify a special court judge and send paperwork to that court within 3 days. . . . That's why this story is not about the wiretaps, so long as one presumes the administration is working in good faith and not using the wiretaps to monitor American citizens exercising their legal rights. . . . The story is about executive privilege and this administration's belief that its anti-terrorism actions cannot not be curtailed by Congress or the Courts."

UPDATE: More blog posts worth reading are at my second roundup post, NSA Surveillance: Blog Post Roundup II.

Posted by Daniel Solove at 08:21 PM | Comments (2) | TrackBack

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

In 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.

The Court explicitly left open the question about whether the Fourth Amendment would require a warrant for surveillance of agents of foreign powers: “[T]his case involves only the domestic aspects of national security. We have not addressed and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents but that surveillance without a warrant might be constitutional in cases where the target was an agent of a foreign power.”

2. Foreign Intelligence Surveillance Act (FISA)

Partly in response to the Keith case, Congress passed FISA in 1978 to address these open questions. I analyzed whether FISA would authorize Bush's surveillance here. My conclusion was that Bush's surveillance was in violation of FISA. FISA requires the government to first obtain a court order from the Foreign Intelligence Surveillance Court before engaging in the surveillance. Bush didn't do this.

FISA authorizes surveillance in limited contexts without court orders, 50 U.S.C. § 1802(a), but such surveillance cannot involve U.S. persons, and Bush's surveillance did. FISA also authorizes the installation of pen registers and trap and trace devices within 15 days after Congress declares war. 50 U.S.C. § 1844. But Bush's surveillance apparently went beyond pen registers and trap and trace devices.

Finally, FISA authorizes electronic surveillance more generally "for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811. The Administration faces several hurdles in using § 1811. First, it is debatable whether the Authorization to Use Military Force constitutes a declaration of war. For some thoughtful analysis about this, see Seth Weinberger's post. Second, it depends upon when the surveillance took place. If it was beyond the 15 day period, then the provision no longer applies. Anyway, President Bush has declared that he will continue the surveillance program "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

3. Congress's September 2001 Authorization to Use Military Force (AUMF)

According to today's AP article: "The president said the authority to bypass the court derived from the Constitution and Congress' vote authorizing the use of military force after the 2001 terror attacks." Essentially, Bush's argument is that he had the power to ignore a law of Congress based on Congress' Authorization of the Use of Military Force (AUMF).

As Professor Seth Weinberger observes:

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that "all of the resources of the country are hereby pledged by the Congress of the United States." This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal.

Professor Peter Swire (law, Ohio St.) argues:

[T]he Administration seems to say that the general Congressional resolution amended [FISA], without anyone realizing it. That approach is contrary to the usual reading of statutes, where there is no “repeal by implication” – you have to say you are repealing a specific statute for the repeal to be effective.

Marty Lederman argues:

That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code.

It is hard to imagine that authorizing military force authorizes the President to disregard a litany of laws at the President's whim. If so, the Congress must be extremely careful in authorizing military force in the future, because such authorization would turn over to the President the right to contravene an unspecified number of laws.

4. Article II of the U.S. Constitution

Article II of the U.S. Constitution delineates the power of the Executive, and Bush's argument appears to be that he has the power, as Commander-in-Chief, to ignore any law he deems a hindrance to his exercise of that power.

As Marty Lederman describes Bush's argument:

The AG claims that the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context. "There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.

I'm not an Article II expert, but this argument strikes me as quite dubious. If this is true, then what becomes of FISA? Or other laws that regulate the power of the Executive? Orin Kerr writes that he was "unable to find any caselaw in support of [Bush's Article II] argument."

UPDATE: Marty Lederman offers more thoughts here.

Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance
2. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?
3. Solove, A Secret Department of Defense Database of Protesters
4. Solove, How Much Government Secrecy Is Really Necessary?

Posted by Daniel Solove at 05:40 PM | Comments (7) | TrackBack

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.

Posted by Greg_Lastowka at 10:44 AM | Comments (0) | TrackBack

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

An 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:

A Yahoo search for "Taiwan Independence" will return only sites the government has approved. And this summer, Microsoft, which has more than 1,000 employees in China, began barring words like "democracy," "freedom" and "human rights" from the titles that users gave their blog postings. . . .

Google began accommodating the censors long before it had a formal presence in the country. Chinese-language Google news searches filter out results from sources like Voice of America and the dissident Epoch Times.

Filtering out sites is one thing, but what about assisting the government in tracking down dissents engaging in free speech? The article states:

In September, Reporters Without Borders revealed that Yahoo had supplied information used to convict Shi Tao, a journalist who used a Yahoo account to e-mail a description of reporting restrictions during the 15th anniversary of the Tiananmen Square massacre to a U. S.-based dissident group. After Yahoo linked the e-mail with Shi's computer, he was convicted of revealing state secrets and sentenced to 10 years in prison. . . .

Should Google, Yahoo, and Microsoft be cooperating? Is business always business? Or should businesses refuse to cooperate with certain foreign legal regimes? If it is acceptable for businesses to cooperate, is there a limit to the level of cooperation that should be provided?

These questions don't have an easy answer. Is it acceptable when Yahoo or Google help France and Germany filter out pro-Nazi websites? Hypothetically, would it have been acceptable for Yahoo or Google to have helped the Nazi regime in identifying Jews? Where should the line be drawn?

For more on China's filtering, see Internet Filtering in China in 2004-2005: A Country Study.

Posted by Daniel Solove at 01:54 AM | Comments (2) | TrackBack

Wikipedia Vandals

According 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:

Wikipedia inevitably will be overtaken by the gamers and the marketers to the point where it will lose all credibility.

Andrew Raff of IPTABlog writes:

Unless Wikipedia starts to implement a strong editorial policy, the entire project will become suspect because of entries like the one about Siegenthaler. Wikipedia is at a critical point in that it has enough entries and reputation that by continuing to allow anyone to edit any entry may harm the future development of the project.

This phenomenon is often at the heart of any open and free system -- it will invariably have to tighten up because of abuse. The key is finding the right balance of freedom and control. It's an age-old problem, of course, but the Internet raises it again in interesting ways.

For related posts on Wikipedia see the new category archive, Wiki.

Hat tip: NeXus

Posted by Daniel Solove at 03:15 PM | Comments (6) | TrackBack

Freakonomics, The Apprentice, Student Grades, and Privacy

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 . . .

Posted by Daniel Solove at 12:51 PM | Comments (8) | TrackBack