Surveillance

  • January 29, 2018
    Guest Post

    by Jim Dempsey, Executive Director, Berkeley Center for Law and Technology

    The recent reauthorization of Section 702 of the Foreign Intelligence Surveillance Act was never in doubt. However, civil liberties advocates were disappointed when Congress failed to adopt an amendment requiring the government to obtain warrants before seeking information about US citizens in the repository of data collected under statue. More broadly, the debate failed to grapple with the risks of electronic surveillance in the era of globalization, expanding storage capacities, and big data analytics. Nevertheless, looking forward, the reauthorization set up the potential for fresh judicial consideration of a key constitutional question and yielded some opportunities for enhanced oversight of the 702 program.

    It was widely accepted that activities conducted under Section 702 were effective in producing useful intelligence on foreign terrorism and other national security concerns. Chances for reauthorization were further boosted by the fact that the broad outlines of 702 implementation were, once you got past the incredible complexity of the statute, well within a reasonable interpretation of Congress’ words. The trust generated by express Congressional authorization was augmented, after the Snowden leaks, by substantial and ongoing public disclosures by the Executive Branch about the law’s implementation – more transparency than any government in the world has ever provided about a similar national security program.

  • March 15, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Also, this piece was written in response to the March 9 ACS National Symposium on Policing in a New Political Era. The full video of this event can be found here.

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    One of the attendees at last week’s symposium on “Policing in a New Political Era,” co-sponsored by the American Constitution Society and New America, asked whether we should consider the abolition of policing in America. My fellow panelist, Cardozo School of Law Professor Ekow Yankah, deftly responded that it may indeed be time to “reimagine” policing in America. And so it is.

    An insightful March 12 Washington Post article by Katie Zezima observed “police officers [are] acting as drug counselors and medical workers and shifting from law-and-order tactics to approaches more akin to social work” and that the police now envision their roles as mental-health workers and doctors. In fairness to the police, these are roles into which they have been, unwittingly and perhaps unwillingly, thrust in a societal expectation that the police are the default “responders” with responsibilities for dealing with the social marginalia that they are neither properly trained or qualified to undertake.

    The police are deserving of praise for adopting strategies in dealing with the opioid crisis that no longer see enforcement strategies as the only tactics in dealing with drugs and drug abusers, but it is fair to question whether or not policing in this nascent political era should include having police “generalists” providing medical, mental health and social work services to vulnerable populations of people, throwaways whom those charting course in this political era would just as soon see disappear. The police are filling voids here in professional disciplines and in providing medical and mental health services that will almost invariably be inadequate to the task. Reimagining the role of the police recognizes that these vital services need to be provided to those who need them the most by professionals trained to treat the sick, the broken and the mentally ill.   

  • January 23, 2017
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    I.        Immigration Enforcement 

    Count on the nascent Trump administration to involve law enforcement in the enforcement of federal immigration laws. And too often the law enforcement agencies that can inflict the most damage on the relationships between immigrant communities and their police will be the first to embrace a role in the enforcement of immigration laws, a role that is particularly unsuitable for the police in the twenty-first century United States. 

    In Massachusetts, the bluest of the blue states, a county sheriff recently offered to send inmates at the county jail to the Mexican border to help build the Trumpian “wall.” Thankfully sheriffs in Massachusetts are jailers and civil process servers and not police, but the suggestion, though clearly illegal and unconstitutional, that some law enforcement officials welcome a potential role in the enforcement of federal immigration laws is worrisome. There are over 18,000 law enforcement agencies in the United States: local, county, state, and special jurisdiction, and these departments may present an attractive “force multiplier” in the enforcement of federal immigration laws should the Trump administration seek to broaden the imprint of ICE Enforcement and Removal Operations (ERO). The resurrection of the moribund “287 (g)” program or some similar collaborative model for the joint federal-local-state-county enforcement of immigration laws would be catastrophic for immigrant communities.

    The police are typically unaware that entry into the United States without the appropriate documentation authorizing such entry, while against the law, is a civil infraction and not a criminal violation (unless the individual has been previously deported). Too many of the police are also unaware that they do not have the authority to ask community residents with whom they come into contact for immigration documents (and this is a common practice in immigrant communities). In the eyes of many of the police, undocumented immigrants are criminals who have no rights under the Constitution and who should be arrested and immediately deported.

  • November 28, 2016
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    As law enforcement agencies throughout the United States begin to re-imagine and re-evaluate their role under an administration that purports to be wholly and unquestioningly supportive of the police, those of us who observe and comment on police-related issues should be concerned, very concerned. Four issues are worthy of immediate scrutiny: technology, immigration, “stop and frisk” and militarization.

    Technology

    The story broke, predictably, on a Saturday during the Thanksgiving weekend. The Boston Globe reported that the Boston Police Department planned to spend $1.4 million on software “that will scan social media and the Internet for criminal activity and threats to public safety.” So a local police department, and certainly not the first local police department of the over 18, 000 police departments that exist in the United States, will be monitoring our use of social media and flag keywords that might be indicative of criminal involvement or “threats to public safety” (whatever that means in the eyes of the police).

    Welcome to the bad new days of law enforcement, circa 2017. When last I checked, I had tweeted over 5000 times since 2009, and many of my tweets have been stridently critical of the police use of deadly force and police violence, and these tweets no doubt contained words such as “shooting,” “police,” “violence,” “deadly” and “#BlackLivesMatter.” I will no doubt be flagged as an enemy of the state and a threat to public safety by the police department where I worked for 27 years.

  • May 8, 2015
    Guest Post

    by Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law. Follow her on Twitter @jendaskal. [Cross-posted at Just Security]

    Yesterday the Second Circuit declared the NSA’s bulk telephone metadata program unlawful.  Specifically, it ruled that it was unauthorized by section 215 of the USA PATRIOT Act (and thus did not reach the constitutional law questions).  At the same time, however, it declined to grant an injunction that would have halted the program and instead sent the case back to the district court to reconsider the issues. As the Second Circuit recognized, many of the issues many of which could may be mooted by congressional action (or inaction) between now and June 1, when this key statutory provision is set to expire.

    The program’s continuing operation, at least for the next few weeks, has prompted commentators such as Orin Kerr to describe the ruling as “merely symbolic.”  I disagree.  To be sure, the telephony metadata program has long been given outsized attention relative to its impact and importance. But the ruling has significant import nonetheless not just for what it means for the continued operation of the program, but for the range of interconnected areas that the opinion addresses.  Below are four key, and substantive, implications of the ruling.

    1.      Collection Matters

    The Second Circuit resoundingly rejected the government’s argument that there is no cognizable injury until data is actually analyzed and reviewed.  According to the government,  appellants had no standing because they could not establish that the metadata associated with their telephone calls (i.e. the numbers called, received, and duration of the call) had actually been analyzed, rather than merely collected; absent subsequent review, the suffered no injury in fact.  The government makes analogous arguments with respect to other forms of bulk collection: Don’t worry we have robust limitations as to who can access the data and why.

    The Second Circuit was not persuaded, and rightly so.  As the Second Circuit concluded, collection is properly analyzed as a government seizure. If the collection is unlawful, then “appellants have suffered a concrete and particularized injury,” even without a subsequent review by human actors.  In other words, collection matters, even if the subsequent use restrictions are robust and strictly followed. That’s because we have a separate privacy interest not just in how the government uses our data, but in the government’s collection of our data in the first place.