Professor Randy Barnett on NSA Surveillance

Randy Barnett, The NSA's Surveillance Is Unconstitutional (Op.-Ed.), Wall Street Journal (July 11, 2013):

Due largely to unauthorized leaks, we now know that the National Security Agency has seized from private companies voluminous data on the phone and Internet usage of all U.S. citizens. We've also learned that the United States Foreign Intelligence Surveillance Court has approved the constitutionality of these seizures in secret proceedings in which only the government appears, and in opinions kept secret even from the private companies from whom the data are seized.

If this weren't disturbing enough, the Consumer Financial Protection Bureau, created by the 2010 Dodd-Frank financial reform, is compiling a massive database of citizens' personal information—including monthly credit-card, mortgage, car and other payments—ostensibly to protect consumers from abuses by financial institutions.

All of this dangerously violates the most fundamental principles of our republican form of government. The Fourth Amendment has two parts: First, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Second, that "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."

By banning unreasonable "seizures" of a person's "papers," the Fourth Amendment clearly protects what we today call "informational privacy." Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers' trust.

[snip, snip]

Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property "without due process of law." Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.

In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants. For the people to control their servants, however, they must know what their servants are doing.

[snip, snip]

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Evidence marshaling software MarshalPlan

The Role of "Relevance" for the Scope of Government Surveillance

Federal Rule of Evidence 401 provides:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

I pointed out in 1983 (I was not alone) that the test of whether evidence makes a fact in issue more or less probable to any degree is extremely liberal and that this liberal test, if taken literally, renders little if any evidence "irrelevant." I have also pointed out at various times (see, e.g., Sections 9 & 10, WIGMORE ON EVIDENCE (Tillers rev. 1983); again, I was certainly not alone in doing so) that elimination or dilution of the equivalent of a materiality requirement - the requirement that only evidence that bears on an issue that matters in the eyes of the substantive law - either eliminates or further dilutes the exclusionary force of the relevance requirement.
If the Wall Street Journal is to be believed, the FISA court opened the door to broad data collection by the federal government - almost unconstrained domestic data collection - by taking two steps:
adopting the equivalent of a literal interpretation Federal Evidence Rule 401's codification of the so-called logical relevance principle - the principle that evidence is relevant if it has any tendency to affect the probability of a fact in issue;
and
adopting (to boot) extremely broad characterizations of the factual questions (e.g., "terrorism") to which any sought-for evidence must be relevant.
See Valentino-DeVries & Gorman, Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering (July 8, 2013):

Snippets:

"The National Security Agency's ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: 'relevant.'

"This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

...

"'Relevant' has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department's primary authority on federal criminal surveillance law.

...

"Under the Patriot Act, the Federal Bureau of Investigation can require businesses to hand over 'tangible things,' including 'records,' as long as the FBI shows it is reasonable to believe the things are 'relevant to an authorized investigation' into international terrorism or foreign intelligence activities.

"The history of the word 'relevant' is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a 'reasonable possibility' that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent.

"But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court's rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means 'relevant' can have a broader meaning for those investigations, say people familiar with the rulings.

...

"Former Sen. Jon Kyl spoke on the floor of the Senate in favor of the 'relevance' standard. 'We all know the term "relevance." It is a term that every court uses,' he said in 2006. 'The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation,' he said.

"But a few people cautioned that 'relevant' could be defined to the point of irrelevance. 'Relevance is a very broad standard that could arguably justify the collection of all kinds of information about law-abiding Americans,' former Sen. Russ Feingold said on the Senate floor in February 2006. He argued for stricter wording, and failed."

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Evidence marshaling software MarshalPlan

Mass Surveillance of Internet Traffic & Activity: A Disaster Foretold by Eben Moglen

N.S.A.'s mass surveillance of internet traffic is a disaster effectively foretold by Eben Moglen. The same Eben Moglen prescribed a solution. The solution he prescribes is a reconfiguration of the net. The prescribed reconfiguration involves decentralization of the net, one in which, for example, each "user" will have a server and will use software apps that reside exclusively on each user's server.

It is important that you (the public at large, I mean) watch and listen to Eben Moglen's lecture.

N.B. My earlier (brief) blog post on Eben Moglen is here.

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Osaka Prosecutors Demand Punishment of Defense Lawyer for Releasing Videotape of Confession to Media

Media info collecting at stake? / Case raises questions over laws on evidence use, The Japan News (June 23, 2013):

A demand by Osaka [Japan] prosecutors that a lawyer be punished for providing a copy of a DVD of video records of questioning by investigators to NHK has sent shock waves through the legal profession and the media.
...

The trial was for a case involving inflicting injury resulting in death. One point of dispute was whether an investigation report by prosecutors was trustworthy. The report said the defendant confessed to strangling the victim.

The prosecutors office submitted the DVD as evidence. However, in July 2011, the Osaka District Court denied the credibility of the prosecutors’ report based on the defendant’s responses in the DVD, and ruled he was not guilty.

After the ruling was finalized, NHK received a copy of the DVD from Sadamoto and aired part of the video while concealing the man’s face in the “Kansai Netsu Shisen” news program on April 5.

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Evidence marshaling software MarshalPlan

Is N.S.A. Domestic Surveillance Criminal as well as Illegal?

Jennifer Stisa Granick, director of civil liberties at the Stanford Center for Internet and Society & Christopher Jon Sprigman, professor at the University of Virginia School of Law, The Criminal N.S.A. (Op-Ed), NYTimes (June 28, 2013):

... Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

...

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.

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Evidence marshaling software MarshalPlan

So you have nothing to hide?

So you wouldn't mind if the local housing inspector listened to all of your telephone calls and read all of your email? So you wouldn't mind if the local health inspector listened to all of your telephone calls and read all of your email? So you wouldn't mind if the local tax assessor listened to all of your telephone calls and read all of your email? So you wouldn't mind if the Internal Revenue Service listened to all of your telephone calls and read all of your email? So you wouldn't mind if Senator Charles Schumer had access to all of your telephone calls and all of your email? So you wouldn't mind if Governor Andrew Cuomo had access to all of your telephone calls and all of your email? So you wouldn't mind if Senator Ted Cruz or Frank Ryan or John McCain had access to all of your telephone calls and all of your email? So you wouldn't mind if your friendly local police officer listened to all of your telephone calls and read all of your email? So you wouldn't mind if your child's school teacher could listen to all of your telephone calls and read all of your email? So you wouldn't mind if your children could listen to all of your telephone calls and read all of your email? So you wouldn't mind if your employer had access to all of your telephone calls and read all of your email? (Caution: This may already be happening to a large extent.) So you wouldn't mind if President Nixon's men had access to all of your telephone calls and all of your mail? So you wouldn't mind if your life were an open book and anyone who might wish to do you harm (or who might merely be inclined to do so) were able to listen to all of your telephone calls and read all of your email? &&& The dynamic evidence page

Evidence marshaling software MarshalPlan

NSA Collects Billions of Communications Every Day

Glenn Greenwald, Fisa court oversight: a look inside a secret and empty process, Obama and other NSA defenders insist there are robust limitations on surveillance but the documents show otherwise guardian.co.uk, Tuesday 18 June 2013 19.36 EDT:

What is vital to recognize is that the NSA is collecting and storing staggering sums of communications every day. Back in 2010, the Washington Post reported that "every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications." Documents published by the Guardian last week detail that, in March 2013, the NSA collected three billions of pieces of intelligence just from US communications networks alone.

In sum, the NSA is vacuuming up enormous amounts of communications involving ordinary Americans and people around the world who are guilty of nothing. There are some legal constraints governing their power to examine the content of those communications, but there are no technical limits on the ability either of the agency or its analysts to do so. The fact that there is so little external oversight is what makes this sweeping, suspicion-less surveillance system so dangerous. It's also what makes the assurances from government officials and their media allies so dubious.

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Evidence marshaling software MarshalPlan

Edward Snowden

I would not have done what Edward Snowden did. But I find it odd that almost all of our political leaders – Dianne Feinstein, Charles Schumer, Lindsey Graham, etc., etc. – condemn Edward Snowden without even considering the question of whether the government surveillance he revealed is legal or illegal. I wonder: Would they condemn him if they believed the government surveillance he revealed violates the Fourth Amendment?

Another point: Why do so many apparently intelligent people take the position that if the Executive Branch and Congress (or some part of Congress) "approve" of government surveillance (often by inaction, it is supposed), that such approval legitimates otherwise unconstitutional surveillance? Have they forgotten that it is black-letter law that ordinarily neither executive nor congressional approval transforms unconstitutional government action - state action that violates a Bill of Rights guarantee - into constitutional government action? The default rule is that neither the Executive Branch, nor Congress, nor the Executive Branch and Congress acting together, have the authority to approve government action that violates the Fourth Amendment.
Expedient legal thinking rules in the halls of our government.
Postscript: it is hard to say – it is impossible to say – whether there has been judicial review of the constitutionality of this or that type of covert surveillance by the NSA. That's because the opinions of the FISA court are secret!
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American War Policy in 2013 & Shortly Thereafter

This is a perceptive essay about why America should have a less active (a/k/a less belligerent) foreign military policy, but it is odd that Haass makes no mention of the moral considerations for reduced resort to wars and foreign military operations:

Richard N. Haass, America Can Take a Breather. And It Should. (Op-Ed.) NYTimes (June 22, 2013)

A snippet:

The United States is currently enjoying an unprecedented respite in the foreign policy arena — a temporary relief from the normal rigors of history that allows us to take stock at home and abroad.

It may seem outlandish to claim that we’re in the midst of a lull, given that America faces a civil war in Syria, an Iran that seems to be seeking nuclear weapons, an irresponsible North Korea that already possesses them, continuing threats from terrorists, a rising China and rapid climate change.

Yet the United States enjoys a respite all the same. For the three and a half centuries of the modern international era, great powers have almost always confronted rivals determined to defeat them and replace the global order they worked to bring about. In the last century, this process unfolded three times. The results were violent, costly and dangerous, and included two world wars and a cold war.

Today, there are threats, but they tend to be regional, years away or limited in scale. None rises to the level of being global, immediate and existential. The United States faces no great-power rival. And this is likely to remain so for the foreseeable future.

The biggest strategic question facing America is how to extend this respite rather than squander it. This will require restraining foreign involvement and restoring domestic strength. We can no longer seek to remake countries in the Middle East and South Asia, as was tried at great cost and with little success in Iraq and Afghanistan.

Instead, we must revive the American economy, something that will not only improve the living standards of our citizens but also generate the resources to discourage would-be competitors from choosing the path of confrontation and to deal with them if they opt for confrontation all the same.

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Blog Visitors from Latvia

Latvia now has a population of ca. 2.2 million. In the last week this blog had the following number of visitors from the following countries:

 

 

Hmm....

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(Big) Exceptions to Restrictions on Domestic Surveillance

Scott Shane, Documents Detail [Exceptions to]  Restrictions on N.S.A. Surveillance, NYTimes (June 20, 2013):

“Nobody is listening to your telephone calls,” Mr. Obama said when the news broke.

But as experts on American intelligence knew, that was not the whole story. It left out what N.S.A. officials have long called “incidental” collection of Americans’ calls and e-mails — the routine capture of Americans’ communications in the process of targeting foreign communications.

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The Reliability or Unreliability of Our Always-Constructed Memories

It is generally believed -- and I believe -- that the mind does not work like a tape recorder and that memories are "constructed."
Does it follow that all memories -- which are constructed, or assembled, by the mind -- are unreliable?
No: that proposition does not logically follow. It is possible that some constructed memories -- i.e., some mental or neural inferential processes -- are reliable.

• Anecdote: I am quite sure I correctly remember what my sister looks like. The same holds true for my memory of upstairs neighbors, my daughter, etc.

If our memories were systematically "unreliable," most people would get lost on their way to work, on their way home, etc. We generally remember many things correctly.
Of course, some memories -- e.g., very old ones, our memories of people seen only once, etc. -- are very probably substantially less trustworthy than many other memories.

• Even here, caution must be exercised. For example, unconscious recall may (sometimes) be more reliable than conscious recall.

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Conscious Memories Are Constructed

Christopher D. Frith, "Disorders of Conscious and Unconscious Mental Processes," in Eric R. Kandel, James H. Schwartz, Thomas M. Jessel, Steven A. Siegelbaum & A. J. Hudspeth, eds., Principles of Neural Science 1373, 1383 (5^th ed., 2013):

[M]emory is a creative process. Our conscious memories are constructed from both conscious recall and unconscious knowledge.

Therefore?

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Vision and Inference

Charles D. Gilbert, "The Constructive Nature of Visual Processing," in Eric R. Kandel, James H. Schwartz, Thomas M. Jessel, Steven A. Siegelbaum & A. J. Hudspeth, eds., Principles of Neural Science 556, 556-557 (5^th ed., 2013):

Vision is often incorrectly compared to the operations of a camera. Unlike a camera, however, the visual system is able to create a three-dimensional representation of the world from the two-dimensional images on the retina. In addition, an object is perceived as the same under strikingly different visual conditions.

A camera reproduces point-by-point the light intensities in one plane of the visual field. The brain, in contrast, parses scenes into distinct components, separating foreground from background, to determine which light stimuli belong to one object and which to others. In doing so it uses previously learned rules about the structure of the world. In analyzing the incoming scream of visual signals the brain guesses at the scene presented to the eyes based on past experience.

This constructive nature of visual perception has only recently been fully appreciated. Earlier thinking about sensory perception was greatly influenced by the British empiricism philosophers, notably John Locke, David Hume, and George Berkeley, who thought of perception as an atomistic process in which simple sensory elements, such as color, shape, and brightness, were assembled in an additive way, component by component. The modern view that perception is an active and creative process that involves more than just the information provided by the retina has its roots in the philosophy of Immanuel Kent and was developed in detail in the early 20th century by the German psychologists Max Wertheimer, Kurt Koffka, and Wolfgang Koehler, who founded the school of Gestalt psychology.

The German term Gestalt means configuration or form. The central idea of the Gestalt psychologists is that what we see about a stimulus--the perceptual interpretation we make of any visual object--depends not just on the properties of the stimulus but also on its context, on other features in the visual field. The Gestalt psychologists argued that the visual system processes sensory information about the shape, color, distance, and movement of objects according to computational rules inherent in the system. The brain has a way of looking at the world, a set of expectations that the rides in part from experience and in part from built-in neural wiring.

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The Scientific Origins of the Polygraph Test

Sally Satel & Scott O. Lillienfeld, BRAINWASHED: THE SEDUCTIVE APPEAL OF MINDLESS NEUROSCIENCE 78 (Basic Books, 2013) (footnotes omitted):

In the early 1900s, William Moulton Marston, an undergraduate at Harvard, invented the precursor of the modern polygraph. The device recorded breathing rate by means of a pneumatic rubber hose wrapped around the subject's chest and a blood-pressure cuff encircling the upper arm. In a charming footnote to polygraph history, Marston later became a comic-book writer and, under the pen name of Charles Moulton, created Wonder Woman, an action heroine who wore a a "Golden Lasso of Truth" around her waist. When villains were lassoed with her magical version of the pneumatic hose, they were forced to tell the truth.

This history (or "prehistory") makes me Wonder how the polygraph test ever escaped universal ridicule.


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Rand Paul Actually Makes Sense Again

I could not disagree more with Senator Rand Paul on matters such as government support for medical care for the poor but on government electronic surveillance, he is spot on: Rand Paul, Big Brother Actually Is Watching Us, Monitoring hundreds of millions of phone records is an extraordinary invasion of privacy Wall Street Journal (June 2013). &&& The dynamic evidence page

Evidence marshaling software MarshalPlan

Update: How to download my evidence marshaling software (MarshalPlan)

A. Background

Years ago David A. Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan."

Some of my more recent thoughts about the theoretical foundations of MarshalPlan may be found here (long blog post called "The Ramshackle -- and Logical -- Character of Explicit Human Factual Inference" (June 18, 2011)).

In the years following my seven(!)-year NSF-supported collaboration with David Schum, I continued to tinker with MarshalPlan. I did so by both modifying and adding "stacks," or files. (Each stack corresponds to an evidence marshaling strategy, or method.) The most recent iteration of the evidence marshaling software is MarshalPlan 5.5.

A few years ago  I began to make MarshalPlan available via the internet.  However, since I am not a programmer and since I lack many basic computer skills, I have not managed to devise a single method of accessing or download in MarshalPlan 5.5 that works for everyone. This is why I lay out two or more ways for you to download MarshalPlan. One of these downloading methods should work for you.

B. Caveats

Before you download or access MarshalPlan, however, please consider the following important caveats:

1. The current iteration of MarshalPlan -- MarshalPlan 5.5 -- is not a prototype of a working application suitable for real-time and real-world use. Far from it! However, MarshalPlan 5.5 goes beyond just scratchings (text) that explain how an evidence marshaling application might work. Even so, it is not far from the truth to say that MarshalPlan is mainly an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take. But, but ... MarshalPlan 5.5 is a bit more than an illustration of possible future directions for research and development. MarshalPlan as it now stands is useful for pedagogical (i.e., teaching) purposes. Moreover, MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use. 

2. In MarshalPlan 5.5 there are only brief explanations of some of the evidence marshaling strategies found there. Other marshaling strategies, however, are described and explained more fully. For a comprehensive account of the thinking that went into MarshalPlan, please see the readings mentioned above. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

3. A few buttons and links may not work. If that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.) 

4. MarshalPlan 5.5 is not set up to be linked to a database. This is a most serious deficiency for any possible real-world use in a context such as law practice.

C. Instructions

Try one or more of the following methods to view and play with MarshalPlan 5.5:

1. MarshalPlan on the web: If you use the now-ancient Firefox 3.x and you are willing to accept a plug-in, you may be able to view MarshalPlan 4.0 in your (Firefox) browser. To try this, click this link.

2. You can download MarshalPlan 5.5 for use on a Windows computer by  going to http://tillers.net/MarshalPlan.5.5/ and opening the subfolder "Windows" and then clicking on MarshalPlan 5.5exe.

Postscript, 2013.10.04: A free open source version of the scripting language for MarshalPlan is now available here; it is called "LiveCode Community."





Caveat: I reserve my copyright to MarshalPlan. This means in part that you cannot distribute, lease, or use any version of MarshalPlan for profit or for commercial purposes without my express written permission.

3. As of 6/11/2013,  you will very probably not be able to run the MarshalPlan 5.5 downloaded in this way (see par. 2 above) on an Apple computer. The Apple OS probably still strips a thus-downloaded MarshalPlan of the ability to run on Apple computers. Sorry! {Take your grievance if any to the paternalistic Apple Corporation, which likes closed worlds, particularly those that it controls.} But there is a solution! Send an email message to peter@tillers.net and ask me to share a relevant DropBox folder with you. I will happily oblige.

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Speech Recognition Software (for Legal Writing)

I have (finally) joined the ranks of users of speech recognition software (Dragon - Legal Edition). I hope this gambit works. (I think it will.)
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Evidence marshaling software MarshalPlan

Trial Planning: Keeping Your Evidentiary Ducks in Order

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Jack Shafer on Government Collection of Reams of Personal Data

Jack Shafer, The spy who came in for your soul Reuters (June 8, 2013):

Snippet:

"Faster than you can say evaporation-condensation-precipitation, I expect this week’s exposés to produce additional investigations that will produce more leaks and further scoops about our digital records. This will now fuel new cycles of reporting, leaks and scoops — and another, and another — as new sources are cultivated and reportorial scraps gathering mold in journalists’ notebooks gain new relevance and help break stories.

"Greenwald’s storm will continue to rage because, I suspect, the story won’t be limited to just phone records or Web data. Ultimately, it will be about the government’s pursuit of all the digital breadcrumbs we produce as necessary byproducts of day-to-day life — and phone records and Web data are just a small part.

"Bank records, credit history, travel records, credit card records, EZPass data, GPS phone data, license-plate reader databases, Social Security and Internal Revenue Service records, facial-recognition databases at the Department of Motor Vehicles and elsewhere, even 7-Eleven surveillance videos comprise information lodes that are of equal or greater value to the national security establishment than phone and Web files. It doesn’t sound paranoid to conclude that the government has reused, or will reuse, the interpretation of the Patriot Act it presented to the secret FISA court in its phone record and Prism data requests to grab these other data troves.

"Lest I sound like a Fourth Amendment hysteric, I understand there’s nothing automatically sacrosanct about any of the digital trails we leave behind. Lawful subpoenas can liberate all sorts records about you, electronic or otherwise.

"What’s breathtaking about these two government surveillance programs that the Guardian and theWashington Post have revealed is that they’re vast collections of data about hundreds of millions of people suspected of no wrongdoing and not part of any civil action. Defending the phone-record cull, National Intelligence Director James R. Clapper explained this week that smaller sets of information aren’t very useful in screening for and identifying “terrorism-related communications,” hence all must collected."

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Evidence marshaling software MarshalPlan