Judge Leon: NSA Surveillance Unconstitutional

December 17, 2013, 3:00 p.m., with December 27, 2013, 5:00 p.m., update regarding ACLU v. Clapper

UPDATE: Today [Dec. 27] another U.S. District Court's decision (ACLU v. Clapper) is being described as contrary to the District Court decision that prompted this original blog essay (Klayman v. Obama). (See the bottom of this blog essay for citations and links.)

To characterize these two opinions as being opposite, or in conflict, with regard to the Fourth Amendment and the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1979)(discussed in the original blog essay, below), is in my opinion to fail to grasp the significance of the sub-head on that blog essay ("When Difference of Degree Becomes Difference of Kind"). (On the other hand, if their respective U.S. Court of Appeals both affirm, or both reverse, these lower court opinions, there will then be a sufficient "conflict in the circuits" to give the Supreme Court that justification for taking the cases, if it wishes, given the conflict in their ultimate outcomes.)

Both judges agree that what the NSA is doing implicates the Fourth Amendment. They agree on the wording of the Fourth Amendment. They both agree that they need to deal with the Smith case. They both agree regarding what the facts were in Smith. They both agree as to the "holding" of Smith. They both agree that it is the Supreme Court, not U.S. District Court judges, that should be deciding whether to overrule Supreme Court opinions or not (Judge Pauley expressly; Judge Leon we can assume). Where they disagree is whether the facts and holding of Smith control the outcome of the facts before those courts in Klayman (Judge Leon) and Clapper (Judge Pauley).

Judge Pauley's sketchy and conclusory Fourth Amendment discussion is primarily limited to portions of pp. 42-44 in his 54-page opinion. He argues, in effect, that "telephone meta data (1979)" is the same as "telephone meta data (2013)," 34 years and a technological and surveillance revolution later.

Judge Leon noted the Supreme Court's struggling with the impact of technology on Fourth Amendment rights. As I described Judge Leon's analysis, below, "[in] U.S. v. Jones (2012), . . . the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology, for a shorter time, was found acceptable)."

"Aha," Judge Pauley seems to have said to himself with regard to Jones, before writing in response to Judge Leon: "But the Supreme Court did not overrule Smith." To which he adds, quoting from another Supreme Court decision, "[T]he Court of Appeals should . . . leave[e] to th[e Supreme] Court the prerogative of overruling its own decisions."

Of course, both of these assertions are irrelevant if no court is engaged in "overruling" anything.

What Judge Pauley fails to note is (1) as I asked and then answered, below, "Has Judge Leon 'overruled' Smith? Not really. He has neither the power nor the need to do so. He is simply saying 'the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search . . ..,'" and (2) that the Supreme Court may have been using the same analysis in U.S. v. Jones as Judge Leon was using in Klayman. That is, the Court's failure to overrule Smith in Jones could mean either of two things: (a) it could have, as Judge Pauley believes, failed to overrule Smith because it believed it was both still good law and was controlling of facts such as those before the District Courts in Klayman and Clapper, or (b) it could have applied Judge Leon's reasoning, and failed to overrule Smith because there was no valid reason to apply Smith's 1979 "apples" to Jones's 2013 "oranges." The holding of Smith, limited as it must be to its facts, is simply irrelevant in addressing the vastly different facts before the courts in Klayman and Clapper. I believe that (b) is the far more likely explanation.

Much appellate court practice, and the writing of appellate court opinions, turns on "distinguishing" cases -- as first year law students soon discover. Both Smith and Knotts can remain good law -- in situations involving no more than the limited facts they presented -- without applying them to cases involving the very different facts in Klayman and Clapper. That does not mean that they have been "overruled." They have simply been limited to their facts; they have been "distinguished."

It may very well be that Judge Pauley also could have found Smith inapplicable to the facts in Clapper and still reached the same conclusion. But he did not.
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Here's what some others are saying:

Editorial, "This Week, Mass Surveillance Wins,"
New York Times, Dec. 28, 2013
(excerpted highlights)
"Has the . . . mass collection of . . . phone records [helped] prevent terrorist attacks?

No, according to . . . a panel of legal and intelligence experts . . ..

Judge William Pauley III . . . came to the opposite conclusion . . . in a deeply troubling decision . . ..

Judge Pauley . . . disregards the concerns central to the presidential panel’s report and [Judge Leon's] ruling . . ..

Judge Leon found the Smith decision . . . inapplicable to a daily, indiscriminate sweep of hundreds of millions of phone records. Judge Pauley . . . said its logic still applied.

Judge Pauley’s opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law . . . that shows an alarming lack of skepticism . . . in light of the testimony of James Clapper Jr., . . . who falsely [said] the N.S.A. was not collecting any [data on] millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is “no evidence” that the government has used the phone data for anything other than terrorism investigations. An inspector general . . . revealed at least a dozen instances in which government employees used the databases for personal purposes."
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"[T]his decision . . . misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections."

-- Jameel Jaffer, an ACLU lawyer (quoted here).
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What follows, below, is what I wrote Dec. 17 regarding Judge Leon's Klayman decison:
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When Difference of Degree Becomes Difference of Kind

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and security/spy agency has said of our NSA, "'You know, for us, this would have been a dream come true.' . . . [H]is department was limited to tapping 40 phones at a time, he recalled. . . . He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more. 'So much information, on so many people,' he said." Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.

He makes an important point: "a difference to be a difference has to make a difference." A difference of degree may be a difference that makes no difference. A difference of kind does make a difference. . . .

When the Stasi's wiretapping ability went from one wiretap to 40, that was a difference. It made a difference. But not that much difference. You clandestinely listen in on one person's conversations, you listen in on 40. But when the NSA goes from a constitutional presumption of one search warrant at a time, for one person at a time, with probable cause, approved by a reviewing judge, to a general search warrant that entitles them to spy on every American simultaneously, just because they have the technology that makes it possible, that is a difference that makes an enormous difference.

-- "Surveillance: Differences of Degree and of Kind," July 3, 2013

Takeaway: Thirty-four years ago the Supreme Court said it was OK for law enforcement to get one person's phone records over a short time without using a search warrant (Smith v. Maryland); Federal Judge Leon rules that times and technology have changed enough that Smith no longer justifies NSA's sweeping, constant collection of all Americans' phone records.

At least one federal district judge has now declared the National Security Agency's (NSA's) surveillance of our cell phone usage ("metadata") to be a violation of our Constitutional, Fourth Amendment rights (Klayman v. Obama).

Since The Guardian broke the Snowden revelations earlier this year, there have been a number of essays in this blog regarding the issues. [For links to the opinion, related stories, and prior blog essays, see the bottom of this blog essay.]

Let's start withe the language of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. It was a response, in part, to the British use of so-called "general search warrants."

[G]eneral search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause." . . .

[T]he NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th -– those British “general search warrants.”

The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for. And so it is that, 224 years later, an ever-increasing number of Americans -– now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.

"The Future of Surveillance and How to Stop It," August 4, 2013.

A prohibition on "unreasonable searches" requires not one, but two, findings: (1) that the search was unreasonable, but also (2) that there was, in fact, a "search." [Moreover, the person complaining must have had both (a) an "expectation of privacy," and (b) one that most people would consider to have been "reasonable."]

For example, . . . Most people would not expect that which they have left in plain sight from the street would be legally protected from being seen by passersby. And if they did have such an expectation, most people would not consider that expectation to have been reasonable.

So far, OK. But we're left with a couple of problems. (1) In a world of ubiquitous surveillance video cameras, mail covers, collection of all phone call meta-data, and comparable intrusions on privacy does a "reasonable expectation of privacy" provide us any protection? (2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.

This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve the information from them (information that the government might not have been able to acquire constitutionally without their involvement).

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age. [1] If you hold information you consider to be private, and you turn it over to a newspaper reporter (who makes no promise of protecting your privacy), you can't really complain when it ends up in the local paper. [2] On the other hand, we do protect the privacy of information you hand over to your doctor, lawyer, or cleric. [3] [T]here needs to be a third category these days. The information you necessarily have to provide a credit card company, for example, may not be entitled to the protection accorded information you give your doctor. But neither, in my opinion, should it be accorded no more protection than what you hand over to a newspaper reporter, neighbor, or colleague. I believe there is, in fact, a reasonableness in demanding a level of trust in our relationships, business or otherwise, that are necessities in our economy -- such as banking and phones. We need these services. We are not gratuitously handing them private information; it is a necessity that we do so in order for them to provide the service. It is given to them for a specific and limited purpose.

"Surveillance: Differences of Degree and of Kind," July 3, 2013.

The Supreme Court needs to rethink the Fourth Amendment's protection of our privacy in a post-cyber world. The mere fact that today's technology means that no American can have a "reasonable expectation of privacy" anywhere, at any time, requires that standard -- and its deadly presumption regarding records shared with third parties -- be discarded.

"Law's Losing Race With Technology," June 7, 2013.

It's always reassuring to have one's instincts and intuition proved correct. As expose after expose hit the media earlier this year, it seemed to me that what the NSA was doing was a violation of both the letter and the spirit of the Fourth Amendment. It was troublesome that those charged with congressional oversight of the NSA, and those within the Obama Administration, of all people, thought -- or at least were saying -- that there was something wrong with the analysis that I, and others, had put forward.

Now there is at least one federal judge who thinks we got it right. There will be more federal judges -- and ultimately Supreme Court justices -- to express their own views on the issues. Undoubtedly, some will disagree with Judge Leon. But his analysis is a strong beginning.

His opinion runs 68 double-spaced pages with 71 substantive footnotes. Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013].

The plaintiffs sought a preliminary injunction prohibiting the NSA's collection of their phone metadata, relying on an Administrative Procedure Act (APA) remedy and the violation of their constitutional rights under the Fourth Amendment. The judge concludes they have the requisite "standing" to proceed as parties, that Congress has precluded his jurisdiction to address their APA claim, but that it has not precluded his jurisdiction to consider their constitutional claim, for which they have met the threshold requirements justifying a preliminary injunction, which he grants -- what non-lawyers would describe as in effect telling the NSA to "stop it." Judge Leon then adds, "However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal." So, on the one hand, the plaintiffs won; on the other hand, they will not enjoy what they have won until the case has weaved its way through an appeal to the U.S. Court of Appeals for the D.C. Circuit -- and possibly the United States Supreme Court.

A discussion of these issues, and the FISA law and procedures, consume the first 43 pages of the opinion.

At that point, under the heading, "The Collection and Analysis of Telephony Metadata Constitutes a Search," is where the constitutional analysis begins -- one that accords with the earlier analysis of myself and others.

Here's some brief background. The Fourth Amendment prohibits the government from engaging in "unreasonable searches," thereby logically requiring two findings: (1) that there was a "search," and (2) that it was "unreasonable." The Supreme Court once gave the Fourth Amendment something of a anti-trespass interpretation, as it only keeps Americans "secure in their persons, houses, papers, and effects." (Tapping a defendant's phone, without a warrant, while at a distance from his property, was found not to violate the Fourth Amendment, Olmstead v. U.S. (1928).) By 1967, in Katz v. U.S., the Court held that "the Fourth Amendment protects people, not places" (in that instance a person inside a public phone booth). Justice Harlan, in concurring, wrote that "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'" (the source of the "reasonable expectation of privacy" standard).

The problem, in the context of NSA collection of every American's mobile phone metadata, is that the Court has also held that once someone knowingly provides information to a third party, they can no longer claim a "reasonable expectation of privacy" with regard to that information. This was found to apply to the information bank customers give to their banks regarding their checking accounts, U.S. v. Miller (1976), and more to the point in this Klayman case, the information telephone customers provide their carriers (what was then the monopolist AT&T) regarding the phone numbers they call, or from which they receive calls. Smith v. Maryland (1979).

As I wrote this past June, contrasting the 1970s with 2013,

Today the combination of electronics, digitization, the Internet, computers and telecommunication result in your sharing a large portion of your "papers" with others. Neither librarians nor store owners used to keep records of what books or other merchandise you examined. Today you share a record of every search with Google, a record of every product you examine on a company's Web site, your Kindle book library with Amazon, your music choices with iTunes. You've shared your email and text messages with some company, your photos with Picasa and Facebook, your videos with YouTube, your documents with Dropbox or some other firm that offers you real estate in their "cloud." In addition to your bank, "your" financial records are held by your credit card companies, airlines, rental car companies, hotels, and many local merchants.

"Law's Losing Race With Technology," June 7, 2013.

And that is essentially what Judge Leon had to say about the Smith case.

When do present-day circumstances -- the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply?

Klayman, pp. 43-45. He then responds to his own question, "The answer, unfortunately for the Government, is now." p. 45.

Has the Supreme Court ever made this kind of technological distinction before? He finds an example in U.S. v. Jones (2012), in which the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology for a shorter time was found acceptable). pp. 45-46.

Smith involved law enforcement using "pen register" and "trap and trace" techniques that collect limited data (numbers called, or calling), from one phone, during a limited time. What the NSA is doing involves more data (e.g., length of call, and possibly cell phone locations), from every telephone in America (and beyond), continuously (with daily updates), which it stores for five years, and can search in ways undreamed of when Smith was decided (1979).

Has Judge Leon "overruled" Smith? Not really. He has neither the power nor the need to do so. He is simply saying "the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. . . . I believe that . . . [it] almost certainly does violate a reasonable expectation of privacy. . . . Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send 'text messages,' they wrote letters and attached postage stamps." pp. 47, 52.

The tidal wave that's swept over us during this Century's technological tsunami has changed everything from family relations to foreign relations, from the way we do business to the way we teach school, from the nature of crime to the nature of war. The necessary response from lawyers and legislators has been lagging far behind what is needed. That is the context -- and the contrast -- in which Judge Leon's Klayman decision takes on its powerful and encouraging significance.

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LINKS TO OPINION AND RELATED STORIES

Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013]. Charlie Savage, "Judge Questions Legality of N.S.A. Phone Records," New York Times, Dec. 17, 2013, p. A1. [Photo credit: Jim Lo Scalzo/European Pressphoto Agency/New York Times]

And see, Sheryl Gay Stolberg, "‘Passionate’ Judge Has Record of Wrestling With Thorny Issues, and the U.S. Government," New York Times, Dec. 17, 2013, p. A22; and Michael D. Shear, "Score One for the Legal Thorn in Government’s Side; Larry Klayman, Plaintiff in N.S.A. Case, Savors Victory," New York Times, Dec. 17, 2013.

Since The Guardian broke the Snowden revelations earlier this year, there have been a number of essays in this blog regarding the issues. See, e.g., "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

[Cites/links for the Dec. 27/28 Update:] Today [Dec. 27] the U.S. District Court for the Southern District of N.Y.'s decision in ACLU v. Clapper, ___ F.Supp.3d ___ (S.D.N.Y. 2013), http://www.nysd.uscourts.gov/cases/show.php?db=special&id=364 [Judge William H. Pauley, Dec. 27, 2013], is being perceived as contrary to Klayman, the District Court decision that prompted this original blog essay. Adam Liptak and Michael S. Schmidt, "Judge Upholds N.S.A.’s Bulk Collection of Data on Calls," New York Times, Dec. 28, 2013, p. A1 ("the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data").

Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013]. Charlie Savage, "Judge Questions Legality of N.S.A. Phone Records," New York Times, Dec. 17, 2013, p. A1. # # #

The Future of Surveillance, and How to Stop It

August 4, 2013, 3:30 p.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

The speech was videotaped by Aleksey Gurtovoy, embedded in speech text below, and by Julie Spencer of Iowa City's Public Access Television (PATV). An edited version was scheduled to be cablecast on the Iowa City PATV channel, 6:30 p.m., August 24, 31, and September 7, and at 12:00 noon on August 28, and September 4 and 11. That version is available on YouTube as "NSA Restore the Fourth Rally in Iowa City August 4, 2013," Newsline Iowa City, and here:



Excerpts appeared within local TV station KGAN-TV2 CBS' newscast of the event, "Anti-Spying Rally Targets NSA," August 4, 2013.

The Future of Surveillance, and How to Stop It
Text of Nicholas Johnson's Remarks
1984 Day: Restore the Fourth's Nationwide Action Against the NSA’s Unconstitutional Surveillance
Ped Mall, Iowa City, Iowa
August 4, 2013, 12:00-2:00 p.m.

It has been 64 years since George Orwell’s classic novel, 1984, was published in 1949.

“George Orwell was an optimist,” once a humorous line, is today a terrifying reality.

As a law professor, I’m used to speaking for entire semesters at a time. Aleksey Gurtovoy has requested a short course of 20 minutes.

That’s a tough assignment, given the legal and policy issues regarding the NSA’s spying.

Let’s start with a story: how the Fourth Amendment came to be.



[Photo and video credit: Aleksey Gurtovoy.]

Once upon a time, in a land far away, a sheriff broke into the home of a Mr. Semayne.

It was 1604, and the British judge told the King that was a no-no. The court’s opinion declared, “The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose” – more commonly repeated as, “an Englishman’s home is his castle.”

In a later case, Entick v. Carrington, the British court examined the search warrant and declared it overly broad, because it authorized the taking of all of Entick's papers, not just those involving criminality. Moreover, it said, the warrant lacked probable cause for any search.

Those principles found their way into the Fourth Amendment to our Constitution, finally ratified in 1791. It provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Clearly, early British law and our Fourth Amendment contemplate our right to a zone of privacy. It is not an absolute right. But it can only be breached by the government if the search is "reasonable," supported by "probable cause" to believe that we have engaged in wrongdoing, and that what is being sought can be "particularly described."

So what was the problem?

Before we had a Constitution, the King considered colonists to be taxpaying British subjects. His tax officials, sent to collect from American merchants what British law said they owed, wanted to be able to look in all homes and businesses for smuggled goods.

To legalize these searches, in 1660 the English Parliament authorized the use of "writs of assistance" -- "assistance" in the sense of a sheriff, say, assisting the customs officials. The net effect was to eliminate the need for a search warrant, thus making the writ of assistance a "general search warrant."

These general search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause."

Are you beginning to connect the dots?

You see, the NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th – those British “general search warrants.”

The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for. And so it is that, 224 years later, an ever-increasing number of Americans – now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.

It has proven very difficult for the public, media – and even our elected officials – to find out basic facts about NSA surveillance.

As New Mexico Senator Tom Udall has observed, “It’s very, very difficult, I think, to have a transparent debate about secret programs, approved by a secret court, issuing secret court orders, based on secret interpretations of the law.”

Our task is made even more difficult by intelligence officials’ willingness to flat out lie. When asked by Senator Ron Wyden whether the government was collecting the meta data from citizens’ phone calls, Director of National Intelligence James Clapper responded simply, “No, sir.” Others, with scarcely more subtlety, speak in terms deliberately nuanced to deceive the public and media.

Measured by any rational benefit-cost analysis, what the government is doing to American citizens in the name of protecting us from terrorism is wildly overreaching. Since 9/11 the overwhelming percentage of deaths from terrorists has been inflicted on our uninvited military personnel in foreign countries, where our presence has both increased recruitment of terrorists abroad – while saving terrorists the cost of airfare to the U.S.

Our intelligence services’ spokespersons are asked to identify instances in which surveillance of Americans was the sole contributor to preventing violence. They struggle, dissemble, mention something between one and 13 possible instances – for which they refuse to provide details.

Moreover, the programs aren’t always effective. Alerted to the Boston bombers, they failed to connect the dots.

Even if you don’t care about personal privacy, consider the money and personnel devoted to surveillance of American citizens. Those costs are clearly grossly disproportionate to any benefits – especially when compared with other programs.

If the government was truly concerned about the preventable death of Americans, the trillions spent fighting wars abroad and conducting surveillance at home could have saved far more lives if spent on other programs. There are over 400,000 deaths a year related to smoking; 32,000 from automobile accidents; 30,000 gun deaths. Americans are 271 times more likely to die from workplace accidents than terrorist attacks. Preventable injury, disease, illness and death include such factors as obesity, lack of exercise, poor nutrition, alcohol and other drug abuse, and the failure to use seat belts and motorcycle helmets. Adequate funding of best-practices public health programs could save far more lives that surveillance ever will.

We will never totally eliminate those deaths. Nor will we totally eliminate all terrorist attacks – no matter how much surveillance we have -- whether carried out by American citizens such as Timothy McVeigh in Oklahoma City, or unsuccessfully attempted by Najibullah Zazi against the New York City subway.

Given the grossly disproportionate and ineffective expenditure on surveillance, rationalized as a life-saving effort, one need not be paranoid to wonder what the government’s real motives might be for spying on us.

It may be true there is high global risk this weekend of a massive al Qaeda attack. But it’s not unreasonable to wonder if the warnings are also efforts to support NSA surveillance.

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and spy agency Stasi, has said of our NSA, "'You know, for us, this would have been a dream come true. . . . So much information, on so many people.'” [Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.]

The Stasi's wiretapping ability went from one wiretap to 40 at a time. Compare Stasi’s efforts with the NSA. Watch Laura Poitras' "The Program," and read the alarming, Peter Maass, "How Laura Poitras Helped Snowden Spill His Secrets," in next Sunday's NYTimes Magazine, August 18, 2013, p. MM22.

The NSA has gone from a constitutional, specific search warrant for one person to the electronic equivalent of the old British general search warrant. Because the NSA has the technology that makes it possible, it wants to be able to search every American simultaneously and retain what they find.

The government tries to reassure us everything it is doing is "legal." That's not so clear. President Obama is both relying on a legal opinion interpreting the Patriot Act – but one so secret he can’t share what it says – and, according to this morning’s Guardian, refusing to permit the FISA court’s release of an opinion finding some NSA surveillance unconstitutional. Moreover, many who voted for the Act believe they did not authorize what the NSA is doing. [Glenn Greenwald, “Members of Congress denied access to basic information about NSA; Documents provided by two House members demonstrate how they are blocked from exercising any oversight over domestic surveillance,” The Guardian, August 4, 2013.]

But assume it is "legal." As I sometimes say of corporate abuses, “The problem is not so much that corporations violate the law as that they write the law.”

The issue is not whether an act was passed by Congress. The issue is whether it, and what is done in its name, is constitutional. And even if constitutional, is it right, is it moral, is it how we want to live? As Dr. Martin Luther King has reminded us, "We should never forget that everything Adolf Hitler did in Germany was 'legal' . . .. It was 'illegal' to aid and comfort a Jew in Hitler's Germany." [Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963.] Presumably what the Stasi did was also "legal."

Consider the potential for abuse from citizen surveillance justified as an anti-terrorism program.

• President Nixon authorized a burglary of Democratic National Committee headquarters. Can you imagine the value to a presidential political campaign of access to the phone calls and emails of an opponent?

• When surveillance was called Echelon, Europeans complained NSA was doing industrial espionage for American corporations, resulting in Airbus losing contracts to Boeing.

• What if, as the New York Times reports this morning, terrorist surveillance reveals a planned crime by a non-terrorist, as in the fictional TV show, “Person of Interest”? How can the constitutional rights of the discovered potential criminal be protected? [Eric Lichtblau and Michael S. Schmidt, “Other Agencies Clamor for Data N.S.A. Compiles; Concerns Over Privacy; Tension Abut Sharing in Cases Not Tied to National Security,” New York Times, August 4, 2013, p. A1.]

When I wrote this particular "potential for abuse" my only concern was that what I thought to be kind of a fictional insert for a revised edition of 1984 would provoke my critics into charging me with exaggeration and extremism: "Oh, Nick, now you've gone too far; you know our government would never do that!"

Little did I then imagine that my government was already doing it:

"Reuters has uncovered previously unreported details about a separate program, run by the U.S. Drug Enforcement Administration, that extends well beyond intelligence gathering. Its use, legal experts say, raises fundamental questions about whether the government is concealing information used to investigate and help build criminal cases against American citizens.

The DEA program is run by a secretive unit called the Special Operations Division, or SOD. . . .

The SOD forwards tips gleaned from NSA intercepts . . . to federal agents and local law enforcement officers.

John Shiffman, "How DEA program differs from recent NSA revelations," Reuters, August 5, 2013.

• How can natural curiosity be eliminated – as when UI hospital personal, curious as to the condition of Hawkeye football players with rhabdo [rhabdomyolysis], took an unauthorized peek at their medical records?

• Will there never be an instance of someone helping a friend going through a bitter divorce, by checking out their spouse’s email or bank records?

So, what can, what should, we do?

1. Citizens must take a stand.

The first thing we need to do is what you’ve already done by showing up today, following in the footsteps of America’s colonists in the 1770s. When the people will lead, their leaders will follow. Especially with a cautious Congress as election-focused and dysfunctional as ours, you and I are going to have to step up and take the lead.

2. Legislators, judges, and lawyers must refashion our law of privacy.

We have two, related, problems.

(1) In a world of ubiquitous surveillance -- video cameras, mail covers, collection of phone meta-data and comparable intrusions on privacy -- does a "reasonable expectation of privacy," our current legal standard, provide any protection?

(2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.

This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve it from them -- information not constitutionally available to the government without the companies’ participation.

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age.

If you give your private information to a newspaper reporter, who makes no promises, you can't complain when it appears in the paper. On the other hand, we do protect the privacy of the information you provide your doctor, lawyer, or cleric.

Today, there needs to be a third category.

Credit card data may not be entitled to the protection of medical records, but it deserves more than what you give to a newspaper reporter. It’s reasonable to demand a level of trust in the business relationships that are necessities in our economy -- such as banking and phones. We are not gratuitously handing them private information; we must do so to have their service. It is given to them for a specific and limited purpose.

Certainly, the government should not be entitled to corporate records that would have violated customers’ constitutional rights if taken directly from the person whose records they are.

3. Government surveillance of American citizens should be conducted in accord with the requirements of the Fourth Amendment.

Could the government find more potential terrorists if its computers constantly monitored the phone conversations of 300 million Americans? Probably. It could find even more if FBI agents could conduct unannounced searches of 100 million American residences whenever they chose.

But as the Fourth Amendment’s history reveals, it is a specific response to the general search warrants of its time that take the form of NSA surveillance today.

To paraphrase the old saying about gravity, “Protection from unreasonable government surveillance is not just a good idea; it’s the law” – in this case, constitutional law.

Does protecting our rights to privacy mean that some criminals and terrorists will be more difficult to catch? Yes. That’s the trade-off.

But it’s a trade-off the nation’s founders made for us, and considered a more than reasonable price to pay for our rights of privacy.

4. We need a procedure to protect whistleblowers dealing with classified information.

Whether you consider Edward Snowden a hero or a traitor, the fact is that he has enabled a national deliberation even the President acknowledges is necessary. What has followed in the form of media investigations, reporting, and opinion pieces, Congressional hearings and proposed legislation, and modestly more NSA transparency, has created a better informed public.

We have laws protecting whistleblowers from retribution for revelations of conventional governmental wrongdoing. Revelations of wrongdoing in secret, classified programs, possibly unconstitutional, are if anything even more necessary and valuable in a democratic society than revelations of garden variety, unclassified mischief.

Of course, we can’t let everyone with a Top Secret clearance reveal whatever classified information they choose. But we can provide them more alternatives than (1) ongoing complicity in classified programs they believe to be unconstitutional, and (2) leaving the country when confronting the risk of life imprisonment after being charged with espionage or the treason of “aiding the enemy.”

There are many possibilities. One would be to permit whistleblowers’ confidential revelations of concerns to any member of Congress of their choosing. There are others.

We have much work to do, starting with our standing together today here in Iowa City. Thank you for this opportunity to participate in your efforts.

# # #

Surveillance: Differences of Degree and of Kind

July 3, 2013, 11:30 p.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

We've Become What Nation's Founders Feared
On this year's July 4th eve, it seems appropriate to note that what our government is doing to the American people today with its NSA surveillance, is the modern day equivalent of what drove our founding fathers to the revolution we commemorate.

It is what motivated their inclusion of the Fourth Amendment's protections in our Constitution's Bill of Rights, and a Declaration of Independence from the oppressive "general search warrants" of the British.

What were these British "general warrants"? It's a long story, but here's the gist.

The British customs and tax officials wanted to collect from the American merchants what British law said they owed. Smuggling was a way to avoid payment. So they wanted to be able to search businesses and homes for smuggled goods.

British law provides the philosophical and legal origins of the requirements of our Fourth Amendment, dating from at least Semayne's case (1604) and Entick v. Carrington (1765). So far, so good.

The problem was that, from the perspective of the King, American merchants might be British subjects for purposes of paying taxes, but they did not enjoy the rights of British subjects when it came to British officers' searches of their homes and businesses. [Cartoon credit: Jeff Parker, recipient of numerous awards for syndicated cartoons during his 21 years with Florida Today. July 3, 2013.]

In 1660 the English Parliament authorized the use of "writs of assistance" by customs officials in America -- "assistance" in the sense of a sheriff, say, assisting the customs officials. The net effect was to eliminate the need for a search warrant, thus making the writ of assistance a "general search warrant," or "general warrant."

Which brings us to an appropriate time to examine the details of our Fourth Amendment (similar in most respects to the 18th Century requirements for British search warrants).

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Note that the 1765 Entick case, referenced above, found the warrant over broad, in that it authorized the taking of all of Entick's papers, not just those involving criminality. Our language is "particularly describing the . . . things to be seized." It also found the warrant lacked probable cause for any search. Our language is "no Warrants shall issue, but upon probable cause."

Clearly, what early British law, and our Fourth Amendment, contemplate is, as Sir Edward Coke stated in Semayne, that "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." That is to say, we all have a legal. moral (and in the U.S. today, constitutional) right to a zone of privacy surrounding our "persons, houses, papers, and effects." It cannot be casually violated. Indeed, it can be breached by the government only when the search is "reasonable," supported by "probable cause" to believe that we -- not people in general, but we in particular -- have engaged in wrongdoing, and that what is being searched for can be "particularly described" in advance.

The general warrants, by contrast, authorized the customs officials to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause." No judicial oversight.

This past month I wrote a three part blog essay series about privacy and government surveillance. "Law's Losing Race With Technology; Redefining Privacy," June 7; "From Zazi to Stasi; Trusting a Governent That Doesn't Trust You," June 9; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?" June 11.

In the second ("From Zazi to Stasi") I noted the similarities between what the Stasi was doing and what our NSA is doing. It was only a couple weeks later that I came upon a former Stasi officer's take on how the American government is spying on its citizens.

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and security/spy agency has said of our NSA, "'You know, for us, this would have been a dream come true.' . . . [H]is department was limited to tapping 40 phones at a time, he recalled. . . . He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more. 'So much information, on so many people,' he said." Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.

He makes an important point: a difference to be "a difference" has to make a difference. A difference of degree may be a difference that makes no difference. A difference of kind does make a difference.

On your way out the door to a picnic, you ask someone, "What's the temperature?" In this case the difference between 73 degrees and 75 degrees is -- in addition to being literally a difference of degree -- a difference that makes no difference.

When the Stasi's wiretapping ability went from one wiretap to 40, that was a difference. It made a difference. But not that much difference. You clandestinely listen in on one person's conversations, you listen in on 40. But when the NSA goes from a constitutional presumption of one search warrant at a time, for one person at a time, with probable cause, approved by a reviewing judge, to a general search warrant that entitles them to spy on every American simultaneously, just because they have the technology that makes it possible, that is a difference that makes an enormous difference.

We are assured by our government that everything it is doing is "legal." That's not so clear. A part of the problem is that the lawyers' opinion interpreting the Patriot Act that President Obama and his surveillance folks are relying on, they contend is so secret that they can't tell us what it says. Some of those who voted for the Act believe that what is happening is not authorized by the Act.

But assume it is "legal," in the sense that what is being done is in accord with an act of Congress. The question is whether that act, and what is being done in pursuance of that act, is constitutional. And even if it is constitutional, is it right, is it moral, is it how we want to live? As Dr. Martin Luther King has reminded us, "We should never forget that everything Adolf Hitler did in Germany was 'legal' . . .. It was 'illegal' to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers." Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963. Presumably what the Stasi was doing was also "legal."

There was more bad news on the surveillance front today than I like to confront in a 24-hour period before July 4th.

First I read that there is a "Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images." Ron Nixon, "U.S. Postal Service Logging All Mail for Law Enforcement," New York Times, July 4, 2013.

Then I find out that "As Congress considers a new immigration law that would expand the fleet of unmanned drones along the border, the agency in charge of border protection is increasingly offering the drones it already owns to a variety of domestic law-enforcement agencies . . . . Three years ago, the drones were used by other agencies 30 times; in 2012, that jumped to 250 times. . . . [T]he border agency said data collected by the drones could be shared with other government agencies, raising concerns about the privacy of Americans within the nation’s borders. . . . [It] raised the possibility of eventually equipping its drones with 'nonlethal weapons' to 'immobilize' people and vehicles trying to cross the border illegally. . . . A bill proposed in the House of Representatives would prohibit firearms on drones in domestic airspace, but not necessarily other weapons like tear gas or pellets. The agency has used Predator drones, the same vehicles used overseas by the United States military since 2005. . . . [They] can fly for 20 hours nonstop. They are based in Arizona, Florida, North Dakota and Texas." Somini Sengupta, "U.S. Border Agency Lets Other Units Use Its Drones," New York Times, July 4, 2013.

Finally, I learn that those wonderful folks who brought us our laptops and smart phones, software and apps -- our friends -- have been hip deep in the spy business from the beginning. We only got a hint of this recently. Now we find out, "Former U.S. officials and intelligence sources say the collaboration between the tech industry and spy agencies is both broader and deeper than most people realize, dating back to the formative years of Silicon Valley itself. As U.S. intelligence agencies accelerate efforts to acquire new technology and fund research on cybersecurity, they have invested in start-up companies, encouraged firms to put more military and intelligence veterans on company boards, and nurtured a broad network of personal relationships with top technology executives. And they are using those connections to carry out specific espionage missions, current and former officials say . . .." Joseph Menn, "Strong Ties Bind Spy Agencies and Silicon Valley," Reuters/New York Times, July 3, 2013.

I've read the Fourth Amendment over and over. Nowhere in it can I find that its protections only extend to the content of: a letter inside a postal envelope, a phone conversation, or an email message. Nowhere in it can I find authorization for surveillance of the entire American population simultaneously, without suspicion or probable cause, to discover to and from whom everyone is writing, talking and emailing. [See below for commentary on "what is a 'search'?"]

What our government is doing, and doing more and more with the passage of time, is the modern day equivalent of the 18th Century British "general search warrants." It is what our Fourth Amendment was deliberately, and specifically, designed to prohibit. The founders insisted that these rights "shall not be violated."

They are being violated. And tomorrow, July 4th, is a good day to reflect upon that fact, and our history.

# # #
What is a "search"?

An issue I have deliberately kept out of the blog essay, above, involves the definition of a "search." The discussion of that issue is not necessary to the general point made in the essay. But it may be necessary to anticipate critics' comments.

It arises as follows. A prohibition on "unreasonable searches" requires not one, but two, findings: (1) that the search was unreasonable, but also (2) that there was, in fact, a "search."

For example, assume a city has an ordinance prohibiting homeowners from keeping old, non-functioning vehicles in their yards. A city official walks, or drives, by a home with three cars in the yard; one's on blocks, another has the hood up, revealing no engine, and the third is severely rusted out. She cites the homeowner with a violation of the ordinance. Can the homeowner claim a Fourth Amendment violation? Was this an "unreasonable search"?

Most would say, "No." Why? Because the Supreme Court's Katz opinion, and its progeny, suggest the standard should be, in this case, (1) did the homeowner have an "expectation of privacy," and if so (2) was that expectation something most people would consider to have been reasonable? Most people would not expect that which they have left in plain sight from the street would be legally protected from being seen by passersby. And if they did have such an expectation, most people would not consider that expectation to have been reasonable.

So far, OK. But we're left with a couple of problems. (1) In a world of ubiquitous surveillance video cameras, mail covers, collection of all phone call meta-data, and comparable intrusions on privacy does a "reasonable expectation of privacy" provide us any protection? (2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.

This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve the information from them (information that the government might not have been able to acquire constitutionally without their involvement).

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age. If you hold information you consider to be private, and you turn it over to a newspaper reporter (who makes no promise of protecting your privacy), you can't really complain when it ends up in the local paper. On the other hand, we do protect the privacy of information you hand over to your doctor, lawyer, or priest. And I think there needs to be a third category these days. The information you necessarily have to provide a credit card company, for example, may not be entitled to the protection accorded information you give your doctor. But neither, in my opinion, should it be accorded no more protection than what you hand over to a newspaper reporter, neighbor, or colleague. I believe there is, in fact, a reasonableness in demanding a level of trust in our relationships, business or otherwise, that are necessities in our economy -- such as banking and phones. We need these services. We are not gratuitously handing them private information; it is a necessity that we do so in order for them to provide the service. It is given to them for a specific and limited purpose. And that is what I argue in "Law's Losing Race With Technology; Redefining Privacy," June 7.

# # #

Law's Losing Race With Technology

June 7, 2013, 5:25 p.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

Redefining 'Privacy'
Our decades-long suspicions that our government has been spying on us have recently been confirmed. Once again, public opinion -- not to mention our policy analysis and law -- are lagging far behind leaping technological advances.

The London Guardian broke the story that the U.S. super-secret FISA Court (Foreign Intelligence Surveillance Act) has given the NSA (National Security Agency) the legal right to gather all of our phone records indiscriminately -- even if there is no reason for the NSA to suspect we've done anything wrong -- in this specific case, the records of every Verizon customer (with legitimate reason to suspect similar authorizations have been granted for all other major phone companies). Glenn Greenwald, "NSA Collecting Phone Records of Millions of Verizon Customers Daily; Exclusive: Top Secret Court Order Requiring Verizon to Hand Over All Call Data Shows Scale of Domestic Surveillance Under Obama," The Guardian (London), June 5, 2013 (with link to text of FISA Court order). [Photo credit: multiple sources.]

Ultimately, of course, the story was picked up and repeated by mainstream U.S. media, as U.S. officials scrambled to reassure Americans that they (members of the U.S. House and Senate) had known of this all along and always considered it a dandy way to protect us from terrorists -- carefully noting that at least this order did not include the government’s right to listen to the content of our calls. "All they were doing" was gathering the date and times our calls begin and end, the locations of the parties to the calls, and the phone numbers involved. Charlie Savage and Edward Wyatt, "U.S. Is Secretly Collecting Records of Verizon Calls," New York Times, June 6, 2013, p. A16; Editorial, "President Obama’s Dragnet," New York Times, June 7, 2013, p. A26 ("The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001 attacks, by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.") [Photo credit: www.loohan.com]

Not to be outdone by The Guardian, the Washington Post soon had a story of its own to break:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates, according to a top-secret document obtained by The Washington Post.

The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.

Barton Gellman and Laura Poitras, "Documents: U.S. Mining Data From 9 Leading Internet Firms; Companies Deny Knowledge,” Washington Post, June 6, 2013.

As I sometimes say, "The major problem is not so much that big corporations violate the law, it's that they write the law." The same thing's true of government. The White House, Justice Department, and the Intelligence Committees of the House and Senate tell us that all their spying on us is perfectly legal. They may well be right. Only problem is that the court that can tell us is so secret we aren't even supposed to know it exists; and unless the Guardian gets another leaked copy of an opinion we can't ever know what those judges decide, let alone their reasoning.

Legal or not, once again the technology is so far ahead of the ethicists, policy analysts, legislators and lawyers that we really need to "take it from the top," and totally rethink what we mean by "privacy" and what aspects of it are so important to us that we want legal protection.

Let's begin with a very brief review of the law.

The Fourth Amendment asserts a "right of the people to be secure in their persons, houses, papers, and effects" -- seemingly a kind of place-based security, a protection from trespassers -- albeit a protection that only extends to the exclusion of evidence so obtained. In 1928 the Supreme Court was still reading those words literally. Olmstead v. United States was a case in which the defendant had violated the prohibition laws. The prosecutor wanted to use evidence obtained by federal officers who had put wire taps on the defendant's phone lines a short distance from his property. The Supreme Court ruled that a phone tap, off the defendant's property, did not violate the language of the Fourth Amendment -- although it noted that Congress could pass a law prohibiting wiretaps (as it ultimately did).

By 1967, in Katz v. United States, Justice Stewart wrote for the Court, "the Fourth Amendment protects people, not places," even people who, as in that case, use public phones far from their homes. Justice Harlan, concurring, thought that was not enough: "The question, however, is what protection it affords to those people." Then, answering his own question, he posed the standard that has become the primary legacy of Katz: "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'" -- generally truncated into the shorter expression, "a reasonable expectation of privacy."

So far so good. But in the 1976 U.S. v. Miller case the Court explained that once you've shared information with another, even though you did so in confidence and for very limited purposes, you no longer have an expectation of privacy in that information, let alone an expectation that courts will consider "reasonable." In Miller the defendant, Miller, attempted to claim a Fourth Amendment right of privacy in the cancelled checks and other records and documents maintained by his bank.

Few people find it possible to function without a bank account; a relationship with a bank is more of a necessity than an option. A necessary feature of a bank account is that the bank maintain some records of your financial transactions. You may consider those records private, and that you have an implied understanding of confidentiality with the bank. However, the Miller court concluded that by giving those records to the bank Miller could no longer claim a reasonable expectation that they would remain private. Because he had no "reasonable expectation of privacy" law enforcement could get access to those records from the bank, without providing Miller the protections he would have received under the Fourth Amendment if Miller had no bank account and law enforcement had come to his home for his copies of those "papers."

That standard may or may not have made sense during the last decades of our pre-cyber life. Most of our "papers and effects" were kept in our homes, protected by the Fourth Amendment. Not all; the phone company had records of our long distance calls, the gas and electric company would have records of our consumption, and there were probably other exceptions. But for the most part we weren't giving information to third parties that we considered private and confidential.

Today the combination of electronics, digitization, the Internet, computers and telecommunication result in your sharing a large portion of your "papers" with others. Neither librarians nor store owners used to keep records of what books or other merchandise you examined. Today you share a record of every search with Google, a record of every product you examine on a company's Web site, your Kindle book library with Amazon, your music choices with iTunes. You've shared your email and text messages with some company, your photos with Picasa and Facebook, your videos with YouTube, your documents with Dropbox or some other firm that offers you real estate in their "cloud." In addition to your bank, "your" financial records are held by your credit card companies, airlines, rental car companies, hotels, and many local merchants.

As Chief Justice Taft noted in Olmstead, we still have some legislative protections from invasions of our privacy by corporations and government, and the opportunity for more. But there is very little left of the Fourth Amendment protections Americans once enjoyed -- at least with regard to the records maintained by corporations, and often handed over by them to agencies such as the NSA, CIA and FBI.

As yesterday's stories regarding the government's massive, sweeping collections of phone records and Internet traffic make clear, technology has left the Fourth Amendment in the dust as it speeds past. When law enforcement had to get a search warrant to tap one individual's phone, the Fourth Amendment's requirements were administratively feasible. When the government wants to tap everyone's phones, and collect everyone's Internet traffic, that system collapses.

Remember the song with the line, "If it weren't for bad luck, I'd have no luck at all"? Well, if it weren't for the FISA court we'd have no court at all; indeed, we didn't, not that many years ago. The government contended it didn't need any judicial approval to spy on Americans. But a "Top Secret" (that is the classification on the FISA court's Verizon order) court that reportedly grants virtually every request, and never releases its cases, their resolution, or its reasons, is a pretty thin reed on which to rest the public's confidence in their government.

The Supreme Court needs to rethink the Fourth Amendment's protection of our privacy in a post-cyber world. The mere fact that today's technology means that no American can have a "reasonable expectation of privacy" anywhere, at any time, requires that standard -- and its deadly presumption regarding records shared with third parties -- be discarded.

There's much, much more to be said on this subject. And I'm told there are more revelations coming from the Guardian's Glenn Greenwald. But that's all for now.

# # #

Home Grown Drones

February 16, 2013, 2:15 p.m.

Drones Abroad, Drones at Home

The drones are coming! The drones are coming!

"The chickens will come home to roost," they say. So apparently do drones.

Drones Abroad

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. No frontline, or field of battle. No enemy equivalent of the Pentagon, or our Joint Chiefs. No easily identified uniforms worn by enemy soldiers. No way to produce an obvious victory, enemy surrender, armistice agreement, or even fashion an exit strategy. [Photo credit: multiple sources.]

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so.

After Lee Harvey Oswald assassinated President John Kennedy, Jack Ruby shot Oswald before he could be tried in court. Suppose the Secret Service, or Dallas local law enforcement, had reason to believe that Oswald, and then Ruby, were giving serious thought to murder. Would those suspicions (or "knowledge," if you wish) have justified assassinating Oswald -- or later, assassinating Ruby before he could kill Oswald, in order to enable a trial of the latter? Because that is, in effect, what we are doing with our drones abroad. [Photo credit: multiple sources.]

When Timothy McVeigh blew up the federal building in Oklahoma City, it was considered a crime, not an act of war. Our response? He was given his constitutional rights and convicted of that crime in a court of law. Although he had come from a community of like-minded folks in Idaho, we did not respond by bombing Idaho or otherwise killing his former "fellow travelers" (to borrow Senator Joseph McCarthy's phrase) who shared his rhetoric.

We're not paranoid. We have real enemies. What they are doing to our property and people abroad is much more than a "crime" -- even if that is what it would be if we stopped offering them targets abroad, and they had to come here to vent their hostility. But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one; see, "Department of Justice White Paper; Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force," (undated).

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home.

Drones at Home
We read that "A future in which unmanned drones are as common in U.S. skies as helicopters and airliners has moved a step closer to reality with a government request for proposals to create six drone test sites around the country. . . . Possible users at home include police, power companies wanting to monitor transmission lines, farmers needing to detect which crops need water or even ranchers counting cows. Privacy advocates worry that a proliferation of drones will lead to a 'surveillance society' in which Americans are routinely monitored, tracked, recorded and scrutinized by the authorities." Joan Lowy, "FAA takes step toward widespread US drone flights," Associated Press/Yahoo!News, February 15, 2013.

I can't say as I mind the idea of ranchers using drones to count cows. Neither does the FAA. It's just worried about drones getting in the way of piloted planes, and there are not a lot of them out where the deer and the antelope roam.

However, I'm not so thrilled about this small step forward for surveillance that is such a giant step backward for privacy.

The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials.

The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind.

The Fourth Amendment works pretty well when a judge is required to approve a search warrant before one person's emails can be seized and read. But how effective has it been, or could it possibly work administratively, when the government can simultaneously monitor all the emails flowing throughout the Internet?

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

The law is years, often decades, behind technology. And so it is again, with drones.

Drones abroad, drones at home. Drones offer us, like the airline captain told his passengers, "Both good news and bad news. The good news is we're making very good time. The bad news is we have no idea where we're going."

We're skiing too far over our skis, folks. Plummeting downhill before our ethicists and legislators, just droning on, can even find their snow shoes.

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Excerpts from this blog essay appeared in the hard copy edition of The Gazette, in its "Blogfeed" section: Nicholas Johnson, "From DC 2 Iowa," February 24, 2013, p. A10, as follows:

The drones are coming! The drones are coming! "The chickens will come home to roost," they say. So apparently do drones.

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. . . .

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so. . . .

We're not paranoid. We have real enemies. . . . But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one.

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home. . . .

The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials. The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind. . . .

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

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