Does the “Mass Collection of U.S. Phone Records Violates the Fourth Amendment”?

October 15, 2014 / Matthew Clemente / Leave a comment

That was the question being debated on the most recent episode of the Intelligence Squared podcast.

Moderated by ABC News’ John Donvan, the debate featured Alex Abdo (American Civil Liberties Union) and Elizabeth Wydra (Constitutional Accountability Center) who argued for the motion; and Stewart Baker (Steptoe & Johnson) and John Yoo (University of California, Berkeley) who argued against the motion.

Here is description of the debate:

Some say that mass collection of U.S. phone records is a gross invasion of privacy. Others say that it is necessary to keep us safe. But what does the U.S Constitution say? “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.” Is collection of phone records a “search” or “seizure”? If so, is it “unreasonable”? Does it require a particularized warrant and probable cause? These are among the most consequential-and controversial-constitutional questions of our time.

The End of Privacy?

September 29, 2014 / Matthew Clemente / Leave a comment

That was the topic being discussed on the Ted Radio Hour.

Here is a description from the podcast:

In this hour, TED speakers explore our changing notions of privacy, the consequences, and whether privacy will soon be a relic of the past.

The End of Privacy?

September 29, 2014 / Matthew Clemente / Leave a comment

That was the topic being discussed on the Ted Radio Hour.

Here is a description from the podcast:

In this hour, TED speakers explore our changing notions of privacy, the consequences, and whether privacy will soon be a relic of the past.

The End of Privacy?

September 29, 2014 / Matthew Clemente / Leave a comment

That was the topic being discussed on the Ted Radio Hour.

Here is a description from the podcast:

In this hour, TED speakers explore our changing notions of privacy, the consequences, and whether privacy will soon be a relic of the past.

Clearly Hiding Something: President Obama’s chance to recommend changes to the NSA

January 15, 2014April 6, 2014 / David Kailer / Leave a comment

Clearly Hiding Something: President Obama’s chance to recommend changes to the NSA
By
David Kailer
http://security.blogs.cnn.com/2014/01/14/obama-ahs-room-to-maneuver-on-nsa-reforms/

Amidst the ongoing controversy surrounding the National Security Agency and the arguable constitutionality of its domestic and international surveillance programs, CNN has reported that President Obama is compiling a list of recommendations to be put to the agency in order to restore confidence in the National Security Agency in light of the leaks by Edward Snowden last year.

After an independent review board looked into the NSA’s practices, their formal recommendation was “that government do a better job of protecting civil liberties”. Whether the Obama administration follows that recommendation, and to what extent they will tighten protections depends on the specific official recommendations the President makes in the coming days and weeks.

Much of the article focused on reminding readers of Obama’s continual claim to improving administrative transparency, capturing the importance of these recommendations for the second-term President’s legacy, and discussing the tension between the need for competent intelligence work and the need to protect the fundamental values of citizen privacy enshrined in the Constitution.

One recommendation the article deemed likely was that the President might order private companies to maintain the data and metadata which the NSA currently collects, and to yield that information only pursuant to a [constitutional] request. Interestingly, the article makes no mention of the significant costs creating such an infrastructure might impose on private companies. There is also no discussion of how disclosure requirements might change where private companies are keeping the records pursuant to a government regulation.

Another potential recommendation discussed included creating an entity or appointing an individual to act in an adversarial role when the government requests such documents, the opposing entity essentially playing devil’s advocate in keeping the records out of government hands. If this is a government-appointed position, that may bring up issues of collaboration by both sides or lip service in performing adversarial functions.

While it is reassuring to see the Obama administration taking the nation’s concerns seriously, it is too early to consider this issue addressed. Personally, I would like to see a vigorous, bona fide adversarial process put in place. This would have the added benefit of protecting civil liberties while not imposing any additional burdens on the intelligence community if they are already complying with the Constitution. Additionally, the President might benefit from making the National Security Agency regularly accountable for their actions, as there have been reports of the NSA refusing to answer inquiries from Congressmen about the scope of the NSA’s intelligence activities.

Do the recommendations listed above solve this issue? What other recommendations would you like to see put in place when the President submits his formal requests?