Learning Takeaways for Week 7

Apple v. FBI

Judge Pym’s Order

- Issued Feb. 16^th upon request of FBI

- Sought pursuant to All Writs Act

- Orders Apple to:

            - Bypass or disable auto-erase function

            - Allow FBI to submit passcodes via USB port or by Bluetooth or Wi-Fi

- Gives Apple five days (now extended) to challenge order if “unduly burdensome”

Cook posts letter to customers

- Attempt to:

            - Frame issue

            - Shape public opinion

Issue:

- Apple argues this precedent could lead to an endless attack against privacy and encryption rights

- Apple argues the creation a ‘back door’ would become a high value asset for terrorists, hackers, etc.

The National Security Agency

Authority from: FISA, US Patriot Act

Primary Role: Identify terrorist networks

Snowden Debate

- In 2013 Edward Snowden, an NSA contractor, disclosed large amounts of classified government information, and fled to China

- The leaks revealed a global surveillance network well overreaching its directive unbeknownst to the American public

Snowden v. Assange

- Is Snowden comparable to the founder of Wikileaks?

- Snowden carefully vetted documents with help of journalists

- Snowden/journalists redacted potentially damaging information

Snowden v. Gandhi, King Jr., etc.

- Is Snowden a modern day civil rights champion?

- Snowden broke the law, risked everything, to stand up for what he thought was right - to shed light on an immoral apparatus

- Snowden did not face consequences of his actions, fled to China, Russia

Snowden - Hero or Traitor?

- Majority of Americans believe Snowden to be in the wrong

- Everyone in our class believed he did the right thing

The Foreign Intelligence Surveillance Court

What is the Foreign Intelligence Surveillance Court?

The Foreign Intelligence Surveillance Court (FISC), sometimes referred to as the FISA court, was established in 1978 after the passing of the Foreign Intelligence Surveillance Act. It is located in Washington D.C. and is comprised of eleven district court judges, each appointed by the Chief Justice, and they serve on the court for seven year terms. The court also has a three judge panel that hears appeals, called a Court of Review. According to the FISC's website, "...the Court entertains applications submitted by the United States Government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes". Check out the official website here. The court remains closed "..due to the need to protect classified national security information..." and operates out of an undisclosed building location.

The FISC is authorized to approve four different types of surveillance: electronic surveillance, physical searches, pen registers/trap and trace surveillance, and the use of orders compelling the production of tangible things. The government must apply to the court and furnish probable cause for surveillance. For a more in-depth overview, read through this website.

Criticism/Support

What's all the fuss about then? There are many complaints about the FISA court. A major point of concern stems from the sentiment that the FISC is simply a "rubber stamp" for the government. In 2012, there were 1,856 applications to the court and none were denied although 40 applications underwent some form of modification. There is a concern that the FISC gives blanket approval in all cases rather than granting permission to access data in individual cases. To give a broader scope, since 2008 8,000 applications were submitted and only two were denied.  However, some call for a detailed look at applications to the FISC. Stanford Law Review argues "...we should care about the substance of what the court approves, not the frequency with which it does so". (Check out the website here, they make a convincing argument).

Reviewing the content of what the FISA court approves is difficult. Hearings are closed and court opinions are not often released and, if made public, they are often heavily redacted. Each case is presented ex-parte , meaning that only the government's side of the case is presented. Such a lack of an adversarial process is concerning to many, arguing that the "...court is not required to look behind the assertions made in the certification". Some worry that the FISA court's current lack of public accountability and transparency creates a pseudo-Supreme Court, giving the power to reinterpret the Constitution. The FISC is hesitant about making the court more transparent, citing national security as a concern. Former FISC presiding judge, Reggie B. Walton, admitted there were benefits to making decisions more public but "serious obstacles" stood in the way of doing so, due to the classified nature of court proceedings. There are also complaints about how FISA court judges are appointed. The Foreign Intelligence Surveillance Act courts are the only active Article III courts without full-time judges directly appointed by the President., creating unease as to power placed on the Chief Justice to unilaterally appoint judges.   

On the other hand, some argue that secrecy is necessary to protect the safety of Americans and fight the War on Terror. There is a worry that releasing information to the public or hindering the court's efficiency would diminish the government's ability to protect its citizens from outside threats. However, public opinion demands for court reform.

For a detailed report of criticisms, go here.

Room for Reform

A myriad of reforms have been proposed over time but as of June 2015, only two reforms have been adopted. The FISC now mandates that court opinions that make a "significant interpretation" of the law must be made public although these reports may be redacted. There are also five public advocates that will step inside the court to intercede on the public's behalf, creating a more adversarial process. More information on the advocates can be found here.

Other proposed reforms include eliminating the ex-parte process all together and creating an oversight board to increase transparency about court proceedings. (Check out the class readings here and here.)  Others have proposed mandating that the court sit en banc to create a wider pool of opinions before approving an application or mandating amicus curiae be heard in addition to hearing from the public advocates already allowed in the court, helping to increase the adversarial process.  I recommend reading the report found here-- it's a bit long but wholly comprehensive and informative. Some believe the FISC should update its statues to reflect current technological developments, citing that the court was created in 1978, long before the rise of gadgets like the iPhone existed. Others believe the real problem lies with data collection itself and call for an end to programmatic surveillance programs. This website makes a convincing point to that end.  Some suggest too much power is given to the Chief Justice as he individually appoints the judges and that, given the nature of the FISA court, judges ought to obtain Congressional approval before being appointed.

Discussion

Personally, I believe the adopted reforms are a step in the right direction. The public advocates help to represent the general citizenry in the closed court and mandating that the FISC make “significant” decisions public helps increase transparency. That being said, I would like to see more changes made. In an ideal world, the FISA court would be completely transparent and the government would have no secrets. However, given recent terror attacks, I don’t see that happening in the near future and as long as terrorism continues the FISC will remain closed. As opposed as I am to government secrecy I do understand it is necessary to prevent terrorist attacks and monitor terror threats. I would like to see an oversight board created to monitor the FISC to help increase public accountability and act as a public liaison in addition to mandating Congressional approval for judges appointed to the FISC. The court could certainly be more transparent but, for now, the adopted reforms reflect significant progress.

What do you think?

Question of the Week No. 7

The Chief Justice of the U.S. Supreme Court unilaterally appoints the 11 judges of the Foreign Intelligence Surveillance Court who serve seven year terms.  Utah District Court Judge Dee Benson served on the Court from April 2004 to April 2011.  Critics of the appointment procedure argue that it results in an improper concentration of power in the Chief Justice, produces a powerful pro-government bias that undermines the Court’s legitimacy and promotes an undesirable ideological homogeneity among the judges.  Numerous legislative proposals to amend the selection process have been filed in Congress.

Which method for selecting the FISC judges should be adopted by Congress?

Option 1:  Status quo.

Option 2:  Judges nominated by President and confirmed by U.S. Senate.

Option 3:  The chief judge of each federal circuit appoints one judge.

Option 4:  Three judges appointed by Chief Justice and two judges appointed by the Majority and Minority Leaders of both Houses of Congress, thus totaling 11 judges.

Explain your answer.

Learning Takeaways for Week 6.

Eyes in the Skies

Camera vs GPS

Discussion of visual information (cameras) vs tracing devices.

What is more intrusive GPS or camera?

Due to the fact that cameras are stationary GPS devices are more invasive.

Fourth amendment rights.

Does the 4th amendment cover cameras on public property?

The 4th amendment does not preclude technology being more proficient than people. A camera does the same job an agent could do, it just does it more effectively.

Upcoming events

We talked about the looming encryption battle being fought by Apple.

The government wants Apple to create a new program so that the police can gain access to a terrorists password protected phone.

Drones

Are they born evil or are they just used for evil?

There are already Civil laws in place to keep drones from being use by peeping toms as well as other civil disputes.  

Criminal law are also in place.

There are drone restrictive laws in 35 states.

With great power comes great responsibility

Should police use drone for surveillance?

In our discussion the point was brought up that drones are separate. The person operating them could be miles away and their only view is the camera which could lead to certain footage being taken out of context.

Protection against drones

Drone restriction laws: if it’s over half a pound you have to register it. That way someone can report a drone if they need to.

Can’t fly at night, without the proper permits.

There are more drone restrictions in play to protect public airspace then there are privacy protections.

Reasonable expectation of privacy

No one expects to be watched from above.

Should to advent of drones impact someone's reasonable expectation of privacy?

The future of drones

Could flying drones replace traffic cops?

What about human discretion? Can a flying robot be trusted with this job?

Body cams.

Benefits - unbiased evidence of events

Drawbacks - innovative of privacy and fear of big brother

Body Cam Concerns

When should these body camera be recording?

Should people be made awar that they are being recorded?

How could we tell them?

What about the victims in the cases, should they be subject to these recordings?

In our discussion someone expressed the opinion that body cams should be on at all times. The police should not get to pick a choose what is recorded.

We also discussed to possibility of police officers wearing signs to let the public know that they are being recorded.

How long should the video be retained?

What if one person wants it deleted and someone does not?

should videos be treated like other evidence?

Who had access to the video tape?

Should the footage be made public?  

If all body cam footage is made public will it still be possible to find an unbiased jury in criminal cases?

Should facial recognition be employed on these body cams?

Word of the day

Sousveillance: is the recording of an activity by a participant in the activity, typically by way of small wearable or portable personal technologies.

The Edward Snowden Revelations

In 2013 Edward Snowden, while working for Booz Allen Hamilton as an NSA contractor, copied extensive amounts of classified information detailing global surveillance programs, mostly centered on the NSA and Five Eyes. Snowden proceeded to cautiously leak the particulars of various programs and operations to news organizations in the US. The leaks revealed a global surveillance apparatus, which searched private online content, tracked cellular devices, and undercut encryption, among other things. In June 2013 Snowden was charged with theft of US and foreign government property and of violating the Espionage Act of 1917. Snowden currently resides in Russia, where he has been granted a three-year asylum, while he seeks asylum elsewhere. (See John Oliver’s interview with Snowden in Russia here [note - explicit language].)

           

Disclosures

            The first major revelation that came from the Snowden leaks was the PRISM program. The program facilitated court-approved NSA access to private communications and usage of common search engines, including Yahoo and Google. However the surveillance network extended well beyond this. The leaks went on to reveal the NSA was collecting and storing phone records of millions of Americans. The United Kingdom spy agency GCHQ had tapped international fiber-optic networks, and was sharing large amounts of this data with the NSA. The United States had hacked Chinese networks, bugged European Union offices, intercepted phone calls of 35 world leaders, spied on 38 embassies, monitored US allies in Latin America through a “continent-wide surveillance programme,” collected text messages, and stored financial information, contacts, and location data. The NSA was also found to be spying on World of Warcraft, Second Life, and Xbox Live accounts and activity. NSA employees were found to be using this network to spy on their love interests, termed ‘LOVENIT,’ and track targeted individual’s sexual activity. The agency was even found to be surveilling charity organizations such as UNICEF. For a more detailed description of the major revelations see here. For a full timeline of the Snowden leaks see here. I also highly recommend playing around with the Guardian’s interactive NSA Files page, which is quite funformative, found here. Another great resource if you are interested in the documentary ‘CitizenFour’.

Fallout

            Since the Snowden revelations there has been a lot said of Snowden and his decision to reveal classified information to the public. The Pentagon has reported that Snowden’s actions will have staggering consequences to US intelligence capabilities - it will put American troops in grave danger and diminish the US’ ability to defend itself and its citizens. The report, however, seems to be purposely vague as to of what these staggering consequences might be constituted. After criticism, the DIA released a report detailing how the Snowden revelations had harmed military capabilities - a report which was heavily redacted, and of which 27 of 39 pages were withheld. The continued secrecy surrounding the programs is justified by preserving what strength the intelligence industry has left in the interest of protecting United States citizens.

            President Obama and members of Congress have agued that the surveillance programs have saved American lives, often citing the ‘thwarted 54 plots’. As it turns out however, these claims have overblown and misleading. The surveillance network played a role in less than five percent of such cases, and worse, the mass collection of US citizens’ data has led to “no discernable impact” when it comes to preventing terrorism and protecting Americans.

            Snowden remains in an undisclosed location in Russia, hoping to one day return to the United States, though he does not find this likely. Current whistleblower protection laws do not apply to government contractors like Snowden, and unless laws change, Snowden will have little prospect of returning home. Attorney General Eric Holder was quoted as saying: “Clemency isn't something that we (are) willing to consider." Other public figures have also been vocal on the issue. One of the few in support of Snowden was Ron Paul, who called Snowden’s actions courageous. On the other end of the scale, former Secretary of State Hillary Clinton has called Snowden’s intentions suspicious, and insinuated that due to the extensive whistleblower laws (which again would not apply to Snowden), only someone who had foul intentions would flee to China.

Discussion

            Edward Snowden has been called everything from a traitor to an American hero, and the debate is not settled. Even today, in the current election cycle, we have candidates that support the surveillance programs and others that condemn them. My personal view is that Mr. Snowden exposed a network of programs that secretly intruded into millions of American’s lives on a daily basis. Even had such an intrusion been effectual at the protection of citizens and preventing terrorism, I would not have found this acceptable. These programs received an estimated $52 billion dollars of taxpayer money in FY13. I cannot stomach the idea of the taxpayer funding the mass infiltration of US citizens’ lives by the federal government, not to mention the glaring lack of tangible benefits/success. I believe Mr. Snowden to not only be brave, but also incredibly selfless - were I to come across something that I thought to be significantly immoral, and would have to give up every facet of my life as it exists today to reveal it, I’m not quite sure what I would do. 

Question of the Week No. 6

Should Congress enact a statute that requires any designer of an operating system for a smartphone or tablet manufactured, leased or sold in the United States to ensure that data on such devices is accessible pursuant to a search warrant?

Video Surveillance on Police Mounted Body Cams

In an age where almost anyone is able to record their daily lives with smart phones, the question of whether on-duty police officers should use body mounted cameras has come under debate. Many have concerns about the potential abuse of the cameras in regards to the privacy of citizens.

How the Cameras Work

Many law enforcement departments in big cities use a certain brand of mounted body cam that comes with many features, such as low light/night vision and a 30 second buffer window where officers are able to begin recording 30 seconds before the camera gets turned on. The camera itself is a small, cigarette-sized device which can be clipped on to glasses, hats, and clothing, and has a battery life of about 12.5 hours. These cameras run at about $1,200 per unit. There are other brands of body mounted cameras, each with other unique features and different designs, and can cost anywhere from $300 up to $1,200 and beyond. Many officers wear these cameras mounted at eye level or on their chest.

Another cost associated with using these cameras is the cost of storage and retrieval of the footage. Most of these body mounted cameras record footage in HD quality (either 720p or 1080p) which creates big file sizes, especially if these cameras are run all day. Many hard drives are needed to store that much data, and careful databases need to be maintained by a technician(s) so that footage can be stored and easily retrieved.

What Cameras Do and Don’t Do

The ability to record information to be used as evidence is a very appealing idea, and in many cases can help officials review the facts of a situation as many times as they want. Cameras act as an unbiased tool that captures events, and can also act as a mediator in events by de-escalating them: if the citizen and the officer knows that the events between them are being recorded, things are less likely to get out of hand. However, the use of the camera is still at the officer’s discretion and can be switched on and off based on the officer’s perceived need. Events such as the Saratoga Springs shooting of Darrien Hunt (the 22 year old with the Japanese sword) show that even though the officers had body mounted cameras on their person, they failed to turn them on when involved in a possibly dangerous situation, thus preventing the following lawsuit from having video evidence from the officer’s physical point of view. Another thing to consider is that even when body mounted cameras are in use, they can still be misleading. Cameras record through a lens that is controlled by the officer wearing the camera, and although the actual recording is accurate, it may not be everything there is to present an event in the way it unfolded. For example, camera lenses generally aren’t wide enough to capture what an officer sees in his/her peripherals, and the low light/night vision capabilities of the cameras can generally see more than the officer can in dark settings.

Privacy Concerns

In some states, the video recorded by officers is public information. When officers enter a house and have a camera rolling, there is a potential for invasion of one’s privacy in the home by allowing for the public to view the private contents of someone’s home. This raises the issue of what to do with the video once it is recorded. Do we allow the public to see everything the officers can by utilizing a cloud storage system that holds all the video evidence? Or do we let the officers and public officials pick and choose what video is made publicly available based on current criminal cases and lawsuits?

Another concern is whether these cameras should utilize biometrics such as facial recognition technology. The ability for officers to identify anyone that the camera captures could prove useful in fighting crime. If an officer can know who someone is based on a camera recognizing that individual’s face, the officer could locate and track suspects and criminals faster and easier.

My Thoughts

When it comes to body mounted cameras, I think they are a step in the right direction. They allow nearly unbiased hard evidence of an event that can prove useful in cases. However, I think they are a very powerful tool that should not be used lightly and should have heavy restrictions and/or guidelines put in place so that their use is regulated by the government and made known to the public. I think that everyone has the right to know if they are being recorded or not.

Cameras would also help ease the tension that currently exists between police officers and citizens by being a “third party” or mediator of an event. Even though it is possibly for the officer to manipulate the use of the camera, they cannot manipulate the actual audio-visual recording of what is happening. That way, both police officers and citizens have a check placed on them so one group doesn’t feel like they are being taken advantage of by another.

As far as the use of facial recognition technology and body mounted cameras, I feel that these two things would cause too many problems and invade too heavily on the privacy of a citizen to allow for these to be used together. The ability to know exactly who everyone is places too much power in the hands of the police officer.

One thing to keep in mind with this issue is that there is already a precedent for recording possibly private information: cell phones. Nearly everyone has a cell phone that has the ability to record video of the things around them, whether they are at a friend’s house or happen to witness a crime. So if some may be concerned about police officers recording daily events on the job, I would urge them to think about how many regular people around them are recording their own daily events with their cell phones.

Learning Takeaways for Week 5

1. Our class unanimously agreed that U.S. Congress should enact a statute governing the use of ALPR (Automatic License Plate Reader) technology. Some states have regulations on this technology, but others do not. Some of our primary concerns were:

• Possibility of mistaken identity
• Potentially invasive of privacy - the potential for this technology to be used as a mass tracking system
• Lack of transparency and possible abuse
• Who would have access to the technology?
• How long would the information be retained for? 

2. The consensus we reached was there needs to be a national, uniform regulation of this technology. Not all potential uses of the technology should be permitted. For example, it should be used to help track down a stolen car, or kidnapper, but the data should be stored for a set period of time - say, 90 days. We did not reach a consensus on who could use the technology, or what specific restrictions would be in place. 

3. We distinguished the origins of the quote "With great power comes great responsibility". Though it's commonly known from Uncle Ben in Spiderman, it was originally said by Voltaire. 

4. There is currently a proposal to track all license plates in a certain district of Los Angeles that is known in particular for prostitution. Those tracked in this area would receive a 'Dear John' letter informing them of the illegality of prostitution, etc. We discussed the problems with this proposal, and the implications of the ALPR use in this circumstance. Ultimately, we agreed that this proposal was not appropriate. 

5. We discussed two court cases, Riley v. California, and Wurie v. U.S., and the implications they have on government access to cell phone records. Ultimately, we learned that because today's cell phones are much different from previous models (they are essentially small handheld computers), we have a reasonable expectation that the contents of our phones will be private. One could argue that we carry more valuable, personal information on our cell phones than we do in searchable files at home. Law enforcement must obtain a warrant before searching a cell phone incident to arrest.

6. We discussed the 'third party doctrine', which states that we have no expectation of privacy to information that we voluntarily give to third parties. However, it is important to note that with technological advances, the doctrine has been outdated. Even though things like our online shopping information and bank information is through a third party, we realistically do not have a choice on whether this information is handed over. People have a reasonable expectation that these providers do not share our information for purposes other than why they were originally collected. One solution proposed was that this doctrine should only apply when the third party is the recipient of the information, rather than the conduit. Whatever the outcome, it is obvious this doctrine needs to be updated to keep with current times. 

Question of the Week No. 5

Congress mandated that the FAA by November of 2015 pass regulations integrating the use of drones into the U.S. airspace by 2015.  The FAA failed to meet its deadline and various states, including Utah, have enacted laws regulating the use of drones.  Should the FAA prohibit the use of drones by law enforcement for surveillance purposes without first obtaining a search warrant?

Learning Takeaways for Week 4

1. The Children's Online Privacy Protection Act requires a website to obtain consent from parents before collecting information from a child under the age of 13.

2: The Federal Trade Commission has recently allowed websites to use photo verification to collect consent from parents to bypass COPPA.

3: Biometric Data can entail a number of things, including but not limited to:

• Palm and Fingerprints
• DNA
• Facial Structure
• Gait
• Typing Rhythm
• Body Proportions
• Retna Scans

4: Because of privacy concerns expressed by those countries, Facebook has disabled "Tag Suggestions", their facial recognition system, in the EU.

5:  Facebook is currently being sued because of alleged violations of the Illinois Biometric Information Privacy Act

6: Privacy Concerns for Biometrics can be categorized into 8 different groups:

• Collection: How is the data collected? Are people even aware the data is being collected?
• Storage/Retention: Should you retain the data? How long?
• Usage: Who can use it, and how?
• Access: Who has access to this information?
• Data Security: How do we secure the biometric information?
• Data Errors: How are errors handled?
• Regulation/compliance: What regulations should be created, and how can they be enforced?
• “Big Brother”: What protections are there against a totalitarian state?