The cyberspace advertising giant Google is facing internal struggles over how "far should it go in profiting from its crown jewels - the vast trove of data it possesses" about users' online activities, reports The Wall Street Journal's Jessica E. Vascellaro.

Reporting on a 2008 confidential "vision statement," the WSJ says the document provides "a candid, introspective look at Google's fight to remain at the vanguard of the information economy."

The Google document asserts that the company's database is "the BEST source of user interests found on the Internet," and advances ideas on how to take advantage of the situation, WSJ reports.

The article continues:

The most aggressive ideas would put Google at the cutting edge of the business of tracking people online to profit from their actions. A data-trading marketplace, for instance, would allow personal information from many sources - including Google - to be combined and used for highly personalized tracking of individuals.

Beyond information gleaned from the vision statement, interviews with current and past Google workers reveal an internal and ongoing struggle over concerns about users' privacy and the potential for company profits.

"In short," the WSJ piece concludes, "Google is trying to establish itself as the clearinghouse for as many ad transactions as possible, even when those deals don't actually involve consumer data that Google provides or sees. The further step in that progression would be for Google to become a clearinghouse for everyone's data, too. That idea, also laid out in the vision statement, is still being considered, people familiar with the talks say. That would put Google - already one of the biggest repositories of consumer data anywhere - at the center of the trade in other people's data as well."

 

Connecticut Attorney General Richard Blumenthal, leading a multistate investigation into Google's Street View software, urged the company to release more data about the software, including the names of the people responsible for its usage.

In a press release announcing his letter that was sent to Google earlier this week on behalf of the 37-state coalition, Blumenthal maintained that the Internet search company should have been aware that the software could ensnare personal data.

"If Google tested this software, it should have known all along that Street View cars [pictured] would snare and collect confidential data from homes across America. Now the question is how it may have used - and secured - all this private information," he stated.

In his letter, Blumenthal also asked Google to supply the names of the people responsible for the Street View software, Reuters reported. The news service states that Google has acknowledged that its Street View software, intended to use Wi-Fi spots to provide location information to smartphones, had collected personal information over a number of years. Reuters noted that Google is facing "an informal investigation into the matter by the Federal Trade Commission, a variety of probes overseas, and class action lawsuits." Additionally Blumenthal asks Google whether it "sold or otherwise used technical network information also collected."

Blumenthal states:

Google's responses continue to generate more questions than they answer. Our powerful multistate coalition - 37 states so far - is demanding that Google reveal whether it tested Street View software, which should have revealed that it was collecting payload data.

We are asking Google to identify specific individuals responsible for the snooping code and how Google was unaware that this code allowed the Street View cars to collect data transmitted over WiFi networks. Information we are awaiting includes how the spy software was included in Google's Street View program and specific locations where unauthorized data collection occurred.

We will take all appropriate steps - including potential legal action if warranted - to obtain complete, comprehensive answers.

Some of the states involved in the investigation include Florida, Illinois, Kentucky, Massachusetts, Missouri, Texas, New York, Mississippi, Vermont Nebraska, Michigan, North Carolina, Oregon, Washington, Kansas, Montana and Rhode Island. The District of Columbia is also a part of the coalition.

Google spokeswoman Christine Chen told Reuters, "It was a mistake for us to include code in our software that collected payload data, but we believe we did nothing illegal. We're working with the relevant authorities to answer their questions and concerns."

[image via adambowie]

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By Jay Stanley, senior policy analyst at the American Civil Liberties Union's Speech, Privacy and Technology Program. Stanley is author of a recent Issue Brief published by ACS entitled "The Crisis in Fourth Amendment Jurisprudence."

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The privacy rights of Americans have come under a sustained assault in the past decade. In that time we have seen not only 9/11 attacks, but also a few additional, comparatively minor terrorist attacks, two wars, a constant stream of revolutionary new technologies, greatly expanded powers for our security agencies, and a relentless political drumbeat pounding on the supposed need to give those agencies even more powers to peer into our lives without due process or meaningful oversight.

Underlying all this, however, is a problem that pre-existed all of it: the fact that the Supreme Court's interpretation of the Fourth Amendment has gone badly off track. And that problem has intensified the erosion of our privacy caused by those other factors over the last 9 years.

The general consensus of a wide variety of commentators is that there are two principal problems with the Supreme Court's Fourth Amendment jurisprudence:

• The "third party doctrine," under which information shared with any third party loses all Fourth Amendment protection. Financial information held by your bank or medical information held by your doctor, for example has been exposed to a "third party," and under this doctrine is thus deemed to have been "given up" by you and therefore stripped of Fourth Amendment protection.
• The emergence of a circular standard of "reasonable expectation of privacy," under which Fourth Amendment protection only extends to those situations where an individual has an "expectation" of privacy that society is prepared to recognize as reasonable. As a result of this approach, the Fourth Amendment as it is currently interpreted provides no protection against a wide array of intrusive searches.

What's needed is a broad revival of the Fourth Amendment in American law.

There is a precedent for such a thing. Before World War I, the First Amendment was weak in much the way that the Fourth Amendment is now. People were being thrown in prison for writing letters to the editor opposing U.S. entry into the war, for example, and the Supreme Court was routinely (and unanimously) striking down to free speech defenses in the face of expression that was deemed "contrary to the public welfare" as the authorities saw it.

Americans broadly speaking considered free speech to be an American value, and pre-war America did feature a boisterous and partisan press, loud criticisms of political figures, and postal subsidies for periodicals of all persuasions. But radicals, labor organizers, and purveyors of material that was deemed socially "harmful" (including, for example, any information whatsoever about birth control) received virtually no protection in the courts.

But World War I intensified the contradiction between this general American cultural respect for diversity of opinion on the one hand, and on the other, the willingness to tolerate legal suppression of opinions that lay outside certain boundaries. The pressures provoked by the war prompted the judiciary and society to resolve that contradiction in favor of expression. It began during the war when Justices Louis Brandeis and Oliver Wendell Holmes began to dissent in free speech cases, and in the following decade and after, the high court totally reversed course on free speech. Today in America, free speech is one of our most strongly protected rights.

Meanwhile, Fourth Amendment privacy rights have been getting weaker, not stronger in recent years. As our technology evolves in directions such as "cloud computing" (the trend toward creating and storing data on third-party servers that provide convenient access from anywhere on the Internet), the weakness of Fourth Amendment jurisprudence is starting to become an even bigger problem. In fact, technology is creating a contradiction between Americans' latent expectations of privacy, and the actual amount of privacy that they are getting. As happened with the First Amendment, this contradiction may lead people to recognize that the status quo is intolerable and help push our legal system toward a more robust Fourth Amendment.

There are other sources we can look to for change:

• A vigorous line of Supreme Court dissents to key Fourth Amendment cases, which articulate the problems with current doctrines and provide the groundwork for the court to eventually shift or reverse course.
• Many U.S. states have rejected the Supreme Court's approaches to privacy law, in some cases because of state constitutions that provide more explicit privacy protections than the U.S. Constitution, but in other cases because state judges have simply gone the other way. The spread of alternative interpretations of privacy rights within the states could gain influence at the national level, as has happened before on other issues.
• Conservative justices like Justice Antonin Scalia and Clarence Thomas have taken positions on privacy issues that suggest they might be open to strengthening the Fourth Amendment in some ways, raising the possibility of the kinds of Supreme Court coalitions necessary to change the direction of federal jurisprudence.

Americans' privacy rights are taking a beating, and the situation will only worsen without a robust Fourth Amendment to protect us.

[image via mr.smashy]

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By Sandra S. Park, Staff Attorney, ACLU Women's Rights Project

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Last week, federal district court Judge Robert Sweet made history by issuing the first ruling ever that human genes can't be patented. The ruling was in a case brought by the ACLU and the Public Patent Foundation (PUBPAT) challenging patents granted by the U.S. Patent and Trademark Office (PTO) to Myriad Genetics on two human genes - specifically, the BRCA1 and BRCA2 genes, which are associated with breast and ovarian cancer. The lawsuit was filed on behalf of breast cancer and women's health groups, individual women, geneticists, and scientific associations representing approximately 150,000 researchers, pathologists and laboratory professionals. 

The ACLU believes gene patenting raises serious civil liberties concerns because the government is essentially giving patent-holders a monopoly over the patented genes and all of the information contained within them. Patent-holders have the right to prevent anyone else from testing, studying, or even examining the genes. Under patent law, if you or your doctor were to remove your genes from your cells in order to look at them, you potentially could be sued by the patent-holder for committing patent infringement. Thus, when Myriad obtained its patents, it was able to shut down other labs that were providing testing - not because those labs were using a particular kind of test developed and patented by Myriad, but because Myriad controlled the genes themselves. (For a discussion of the legal background and arguments we made in the case, see our earlier post.)

In his decision, Judge Sweet declared that all 15 patent claims that we challenged are invalid, because they cover products of nature and abstract ideas.

The judge ruled that Myriad's argument - that the "isolation" of the BRCA genes from the surrounding DNA and cellular material makes them into something distinct and patentable - is fundamentally flawed and nothing more than semantics: 

Many, however, including scientists in the field of molecular biology and genomics, have considered this practice a "lawyer's trick" that circumvents the prohibitions on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result.

His decision recognized that patents on genes - like patents on chemically-treated fruit, a combination of species of bacteria, and purified tungsten that have been rejected by the courts - are not authorized by the Patent Act. Myriad did not invent the biological information embodied by genes.

The resolution of these motions is based upon long recognized principles of molecular biology and genetics: DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature. It is concluded that DNA's existence in an "isolated" form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issue directed to "isolated DNA" containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter under 35 U.S.C. § 101.

Judge Sweet also concluded that all of the so-called "method" claims that were challenged are unpatentable because they cover abstract ideas - the simple mental process of comparing the sequence of one person's BRCA1 gene with the normal BRCA1 genetic sequence. Myriad's claims are not limited to any particular method of comparing sequences and are not tied to the use of a particular machine. They are so broad as to prohibit anyone from taking two genetic sequences and comparing them, side-by-side, letter-by-letter.

Because Judge Sweet found that all of the challenged patent claims are invalid, he chose to dismiss without prejudice the claims brought against the PTO because it was unnecessary to decide the constitutional questions. He noted that:

[A] decision by the Federal Circuit or the Supreme Court affirming the holding set forth above would apply to both the issued patents as well as patent holders and applicants, as well as the USPTO....the USPTO would conform its examination policies to avoid issuing patents directed to isolated DNA or the comparison or analysis of DNA sequences.

The ruling is a significant step forward for women's health and scientific freedom. If this decision is upheld, it will mean that clinicians and researchers across the country - thousands of whom have the ability to conduct BRCA testing - will no longer be prohibited from providing genetic test results to women.

Myriad has announced that it will appeal the decision. But Judge Sweet's ruling is only the latest pronouncement rejecting gene patents.

Francis Collins, the Director of the National Institutes of Health, wrote in his recent book, called "The Language of Life: DNA and the Revolution in Personalized Medicine":

The information contained in our shared instruction book is so fundamental, and requires so much further research to understand its utility, that patenting it at the earliest stage is like putting up a whole lot of unnecessary toll booths on the road to discovery.

And in February, an advisory committee to the Secretary of Health and Human Services issued a report concluding that gene patents are not needed to incentivize the development of genetic testing. It recommended that the law be amended so that gene patents do not stand in the way of research and women's access to their own genetic information. 

 

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 By Aparna Sridhar, public policy counsel, Free Press

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Broadband networks represent the most critical communications infrastructure of our time: if these underlying transmission systems don't function effectively, the Internet cannot serve as a vibrant forum for speech, commerce, and culture.

Yesterday's ruling from the D.C. Circuit in Comcast v. FCC called into question the Federal Communications Commission's ability to protect consumers from harmful activity by the owners of these networks. Without oversight, dominant broadband providers - principally large cable and telephone companies - will be free to do as they wish even if their actions hinder the free flow of information, treat consumers unfairly, or discriminate against speech that they find undesirable. The decision also suggests that the Commission has limited authority to implement its recently devised National Broadband Plan - a plan that will be critical in closing the digital divide at home and abroad.

To understand these issues more fully, we need to step back in time a bit. Historically, communications law and FCC policy have recognized several unique characteristics of communications networks (like the telephone, telegraph, and now IP-based networks): (1) The networks require significant investment to build them, and as a result, the market to provide access to such networks will likely be heavily concentrated, (2) customers can likely use the services of only one network provider at a time; and (3) the costs associated with switching providers are significant. Thus, the owners of the networks have sufficient gatekeeping power. Because the network providers possess this gatekeeping power, the law required them to comply with certain basic rules, including the duty to open their networks to everyone without discrimination, and the duty to interconnect with other network providers that offered the same services.

On the other hand, the law historically imposed very few requirements on companies whose services made use of these networks, including such services as e-mail, Web browsing, and other content and applications made available over the Internet. The market for those types of services is more competitive, the barriers to entry are lower, and the chance that those service providers can extract monopoly rents or hamstring their competitors is significantly reduced as a result.

In 1996, Congress passed the Telecommunications Act, which essentially adopted these distinctions. Access to a communications network was deemed a "telecommunications service," and content and applications that used that IP-based networks to transmit data were termed "information services." And for the first few years after the 1996 Act was passed, the FCC treated broadband providers as "telecommunications service" providers.

In 2002, that changed. Reversing course, the Bush-era FCC decided to classify broadband Internet access service as an "information service" under the Act. In 2005, that decision was upheld by the Supreme Court as a reasonable interpretation of the 1996 Act. The Court did not reach the question of whether the FCC's interpretation was the best interpretation; it just said that the agency retained the discretion to make that determination, and that under Chevron v. Natural Resources Defense Council, the Court would defer to the agency's determination.

This deregulatory decision had far-reaching consequences. As set forth above, the law imposes very few obligations on information service providers. What the D.C. Circuit said yesterday is that since the Commission made the decision to classify broadband Internet access as an information service, it doesn't have authority under the current regulatory framework to enact basic consumer protections.

While the court drastically limited the scope of the FCC's authority to regulate broadband if broadband access continues to be classified as an information service, the Court left the door open for a straightforward fix: the FCC retains the authority to reclassify broadband providers as telecommunications service providers. The Commission would then be able to adopt policies to preserve the value of the open Internet, bring broadband to rural and low-income Americans, provide consumers with basic privacy protections, and require network operators to advertise and bill accurately for their services.

The Commission can and should pursue this option. It would put the FCC's broadband policies on more solid legal footing. And it would not be a radical change: it would merely close the loophole created by previous Commissions. Moreover, the Commission has the authority, under a procedure called forbearance, to tailor its policies narrowly. It can decide that broadband network owners should be required to comply with only some, and not all, of the rules governing "telecommunications services."

In the long term, Congress may pass legislation that provides the FCC with further guidance on how to regulate network providers. But in the meantime, the FCC must use the tools at its disposal - including reclassifying broadband transmission as a telecommunications service - to protect consumers from anti-competitive behavior, encourage broadband deployment and adoption, and preserve the Internet as an open platform for democratic engagement, information-sharing, cultural expression, and commercial activity. As both consumers and citizens, Americans deserve no less. 

[image via crunchgear.com]

 

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By Amanda Frost, associate professor of law, American University Washington College of Law

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Plaintiffs have won a rare victory against the government in a case involving the state secrets privilege. On April 1, 2010, Federal District Judge Vaughn Walker ruled in favor of Al-Haramain Islamic Foundation, Inc., a now-defunct Islamic charity that had sued the government for intercepting its employees' international telephone conversations without obtaining a warrant. Al-Haramain claimed the government's warrantless wiretap violated the Foreign Intelligence Surveillance Act (FISA), a federal law that limits the government's ability to eavesdrop on its citizens. The case is one of several challenging the National Security Agency's warrantless wiretapping program. The government has responded to all such lawsuits by arguing because its surveillance activities concern national security, the state secrets privilege requires dismissal of claims that it violated FISA.

Yet FISA was enacted for the very purpose of preventing the government from eavesdropping without a warrant, and it provides a mechanism by which individuals or groups who believe they have been victims of an unlawful government wiretap can seek redress in the courts even when the claim relies on classified evidence. Under FISA, if a plaintiff establishes a "colorable basis" for believing that it has been subject to unlawful surveillance, the Court can then examine classified evidence in camera to determine whether the surveillance occurred, and if so whether it was lawful.

Al-Haramain met its burden by producing non-classified evidence that it had been the subject of such surveillance -including statements by government officials admitting as much. (In addition, the government had inadvertently produced a classified document acknowledging that Al-Haramain was wiretapped, though that document was excluded from the Court's consideration.) Unfortunately, the government refused to respond to the merits of plaintiffs' claims. Rather than dispute whether Al-Haramain had been subject to surveillance, or contend that the surveillance was lawful, the government continued to argue that the state secrets privilege barred introduction of any evidence relevant to those questions.

So it should come as no surprise that the government lost its case. Clearly frustrated by the government's "intransigence," Judge Walker concluded that he had no choice to rule in favor of the plaintiffs after the government failed to address Al-Haramain's claims that it had been the subject of unlawful surveillance.

This "victory" for the plaintiffs is unsatisfying for just about everyone. Because the government refused to respond to the merits of plaintiffs' claim, the case sheds no light on NSA's warrantless surveillance program. Just as disappointing, the government forfeited an opportunity to work with the court and the plaintiffs to create a model for future civil litigation involving classified information. Judge Walker ordered the government to process security clearances for plaintiffs' attorneys and to work with plaintiffs to create a protective order governing use of classified information-all reasonable steps that could have protected the classified information at issue while enabling the plaintiffs to seek judicial review of their FISA claim. Yet the government refused to participate in this process, preferring instead to argue that it alone controls access to information about whether it violated the law. Accordingly, the win is a hollow one for those who hope to see executive branch work with the courts rather than claim immunity from judicial oversight.

[Image via Jinx!.]

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By David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. He is the lead author of the report, The Gem of the Constitution: the Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, and co-author of CAC's brief in McDonald. This article is cross-posted at CAC's blog, Text & History.

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On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

Activists hope to once again make Nebraska the battleground over whether the Supreme Court should reaffirm its 1973 decision in Roe v. Wade, recognizing a woman's right to an abortion. Just introduced in Nebraska's unicameral legislature is a bill acknowledged by advocates on both sides of the issue to be unconstitutional under the Court's present jurisprudence.

From the Omaha World-Herald: [links added]

The state has played a role on the national stage before, with a 1997 law banning the controversial late-term procedure known medically as intact dilation and extraction, or D&X.

The U.S. Supreme Court in 2000 overturned that Nebraska law, upholding its previous abortion decisions and dealing a setback to abortion opponents, who call the procedure "partial-birth" abortion.

Those opponents gained hope seven years later, when the justices on a more conservative Supreme Court upheld a federal ban on the D&X procedure.

Now abortion opponents are looking for opportunities to push the court even further in restricting abortion.

The law would ban abortions after 20 weeks, disregarding the question of viability, which occurs around the 24th week of pregnancy and was relied upon as a boundary for state regulation in the Supreme Court's 1992 Planned Parenthood v. Casey decision. In Casey, today's swing-vote Justice Anthony Kennedy co-wrote the majority opinion, joined by the liberal wing of the court. The Center for Reproductive Rights' Janet Crepps told the World Herald that this is reason for comfort to the pro-choice community, although Justice Kennedy joined the conservative wing of the Court in its two most recent decisions regarding reproductive rights.

At RHReality Check, Robin Marty sees the proposed legislation in Nebraska as part of a national push to set reproductive rights before the Roberts Court, which some observers see as marching American jurisprudence further to the right. Marty notes that legislation in Florida and Ohio is also pending which runs contrary to settled law on the issue.

[Image via Wolfgang Staudt.]

On January 28, 1916 President Woodrow Wilson nominated Louis D. Brandeis, a Boston lawyer and coauthor of a Harvard law Review article advancing the right to privacy, to the U.S. Supreme Court. In a brief piece for the ABA Journal, George Hodak notes that it took the Senate until June to confirm the nomination, making Brandeis the high court's first Jewish member.

Hodak writes:

Although he was widely revered for his commitment to public service, which earned him the title ‘the people's lawyer,' Brandeis had his share of critics, particularly within business circles. Resistance from those quarters coupled with a somewhat veiled anti-Semitism, made for a prolonged and contentious confirmation process.

In the fall, ACS hosted a national event exploring Brandeis's trailblazing legal career, especially in the area of privacy law. The event featured Melvin I. Urofsky, author of the biography, Louis D. Brandeis: A Life. Video of the event is here. Following the event, Urofsky talked with ACSblog about his book and said Brandeis, who served as an associated justice on the high court for 23 years, is "on almost everyone's list of the top three justices in our history." Brandeis, Urofsky continued, helped to advance an especially resilient notion of privacy rights. See Urofsky's interview here. 

[image via hawaiilibertychronicles.com]

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Gregory T. Nojeim, Senior Counsel and Director of the Project on Freedom, Security & Technology at the Center for Democracy & Technology 

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The Washington Post reported yesterday that the FBI abused its authority to issue National Security Letters (NSLs) and that this abuse permitted it to illegally obtain more than 2,000 telephone call records from 2002-2006. This disclosure, made while Congress contemplates Patriot Act legislation that could rein in use of NSLs, should prompt a re-examination of the approaches taken in the pending bills.

A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.

The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.

After this and other abuses were disclosed in a DOJ Inspector General report issued in March 2007, the FBI put in place administrative changes it said were designed to prevent a recurrence. Those changes included internal review by lead attorneys in FBI field offices of NSL requests. However, The Washington Post article reveals that officials who sanctioned the illegal exigent records included senior officials of the FBI - managers as high as Assistant Director of the FBI. It is not likely that an attorney in an FBI field office will be able to stop illegal activity sanctioned by his boss's boss. That the abuses went this high up the chain of command at the FBI had not been previously revealed.

Congress is currently considering legislation to reauthorize three expiring provisions of the USA Patriot Act. Both the House and Senate Judiciary Committees have reported legislation, but neither bill has come to a vote. While the Senate bill does little to rein in NSLs, the House bill would actually make a difference by focusing NSLs more on terrorists and spies, rather than on records about everyone else. Neither bill, though, explicitly addresses and precludes exigent letters. Each requires a statement of specific facts (the House bill also requires that those facts be "articulable") showing reasonable grounds to believe that the information is either relevant to an investigation (Senate bill) or is relevant and pertains to an agent of a foreign power (AFP), someone in contact with or known personally to such AFP, or is relevant to the activities of an AFP who is under investigation (House bill).

In theory, a requirement that agents articulate the facts that form the basis for seeking records with an NSL should stop the practice of issuing NSLs without any factual basis and without having opened the investigation that is a pre-requisite to issuing the letter. However, for such a limitation to be effective, agents must comply with the law. That they failed to do so over a five-year period following 9-11 does not inspire confidence that they will do so in the future, regardless of whether the law is more exacting. Self-policing doesn't work.

Another approach, which Senator Feingold included in the bill he introduced to reform the Patriot Act, would make a difference. Feingold's Justice Act (S. 1686) put sensitive records beyond the reach of NSLs. They could be sought only with criminal authorities subject to all of the checks and balances that come with criminal prosecutions, or with prior judicial authorization for intelligence-related investigations. Congress has so far rejected this approach. It should either be re-considered in light of these new disclosures, or an alternative should be adopted to preclude unlawful issuance of NSLs to seek sensitive personal information.

[Image via Security, Privacy and the Law.]