The New York Times has an interesting story on some privacy and civil liberty questions surrounding the National Security Agency’s warrantless wiretapping program that the Obama administration will face early on.

The Justice Department will be asked to respond to motions in legal challenges to the National Security Agency’s wiretapping program, and must decide whether to continue the tactics used by the Bush administration — which has used broad claims of national security and “state secrets” to try to derail the challenges — or instead agree to disclose publicly more information about how the program was run.

When he takes office, Mr. Obama will inherit greater power in domestic spying power than any other new president in more than 30 years, but he may find himself in an awkward position as he weighs how to wield it. As a presidential candidate, he condemned the N.S.A. operation as illegal, and threatened to filibuster a bill that would grant the government expanded surveillance powers and provide immunity to phone companies that helped in the Bush administration’s program of wiretapping without warrants. But Mr. Obama switched positions and ultimately supported the measure in the Senate, angering liberal supporters who accused him of bowing to pressure from the right. (more…)

Both found via PogoWasRight.org.

Here are two academic articles about privacy issues that might be of interest to readers.

First, an article (pdf) by Jed Rubenfeld, Robert R. Slaughter Professor at Yale Law, entitled, “The End of Privacy.” Rubenfeld raises a number of questions, some of them surprising. I agree with some points but am skeptical of others. From the introduction:

This Article is about the Fourth Amendment. It is an attempt to recover that amendment’s core meaning and core principles.

Why has the Fourth Amendment, despite explicitly governing seizures of the person, played so minimal a role in the judicial response to the “unlawful combatant” detentions? What allows courts to find no Fourth Amendment search or seizure when the government obtains records from telephone companies or Internet service providers showing whom you have communicated with and when and for how long? What allowed the Sixth Circuit last summer to dismiss a challenge to the NSA’s covert wiretapping on grounds implying that the program might never be reviewed under the Fourth Amendment at all? What flaw, in short, in modern doctrine has made the Fourth Amendment so irrelevant to the present search and seizure debates — and how could it reclaim its relevance? This Article tries to answer these questions. (more…)

I am quoted in a DC Examiner story about Mayor Fenty’s plan for a city-wide surveillance system, “New rules proposed for spy net.”

The Fenty administration has proposed new standards for a consolidated spy network of more than 5,000 closed-circuit cameras that should take effect in time for the presidential inauguration in January.

The Video Interoperability for Public Safety system, or VIPS, links 5,200 District-owned closed-circuit television cameras within a single monitoring office under the Homeland Security and Emergency Management Agency. The goal: Assist Homeland Security “to rapidly identify and respond to emergency circumstances that occur within the District.”

Every camera in a school, in a jail cell, in a government building, outside a public housing project or attached to a traffic light has been integrated into the network. The police department’s crime cameras, which require passive monitoring only, are not included.

As I told the reporter, there are numerous problems with the proposed regulations (pdf) for the city-wide camera surveillance system. The proposed regulations have few changes from the emergency rules that were self-imposed by the Fenty administration in June. Those emergency rules were created without input from the public or the DC Council. After five months and much public and Council review and criticism of the emergency rules, the Fenty administration has not addressed the substantial privacy and civil liberty questions that have been raised.

The emergency regulations (pdf) set out in June were vague as to the purposes of the system, as are these current proposed rules. But notice that in June, the Fenty administration said that one purpose was to “enhance public safety.” The Fenty administration was questioned as to what measurements would be used to evaluate whether the centralized surveillance system could be judged effective at enhancing public safety. The “enhance public safety” purpose is gone from the new proposed rules. Why? Is it because numerous studies (pdf) by law enforcement officials have shown (pdf) that camera surveillance systems do not have a significant effect on crime, and the Fenty administration knew it couldn’t actually prove the massive camera system would actually enhance public safety? (more…)

A number of organizations have created documents to offer the Obama-Biden transition team guidance on priorities in the new administration. The issues are broad, including detainee rights, reproductive health, education, open government, security, and privacy, among others. This is Part Two of an unknown number of posts on such transition plans. I will post documents of interest as I find them. This post includes plans from CDT, Human Rights Watch, and the Cato Institute. Here is Part One.

The Center for Democracy and Technology focuses on, “The Internet in Transition: A Platform to Keep the Internet Open, Innovative and Free” in its document (pdf).

Restoring the Balance between Security and Liberty
[...] In order to restore the balance between security and liberty, the next President and Congress should take specific steps, including the following:

• [...] The next President and Congress should work together to enact legislation to update communications privacy laws to account for dramatic advances in technology.
• The next President and Congress should adopt a balanced framework for information sharing and analysis for counterterrorism purposes.
• The next President and Congress should revisit the REAL ID Act and ensure that all governmental identification programs are necessary and effective and subject to adequate privacy and security protections.
• The next President and Congress should work together to update the Privacy Act; the next President should assiduously enforce the Act’s protections.

Preserving Free Speech and Protecting Children Online
[...] In order to preserve free speech and protect children online, the next President and Congress should take specific steps, including the following: (more…)

A number of organizations have created documents to offer the Obama-Biden transition team guidance on priorities in the new administration. The issues are broad, including detainee rights, reproductive health, education, security, and privacy, among others. This is Part One of an unknown number of posts on such transition plans. I will post documents of interest as I find them. This post includes plans from the ACLU, EFF, and American Constitution Society.

I have been working on this at the ACLU, which has published a transition plan, “Actions for Restoring America.” The privacy issues include:

1. Warrantless spying.
Issue an executive order recognizing the president’s obligation to comply with FISA and other statutes, requiring the executive branch to do so, and prohibiting the NSA from collecting the communications, domestic or international, of U.S. citizens and residents. Issue an executive order prohibiting new FISA powers from being used to conduct suspicionless bulk collection. Re-examine the recent amendments to Executive Order 12333 to limit and regulate all intelligence community activities and to fully protect the privacy and civil liberties of U.S. citizens and residents. Repeal and make public any secret executive orders that limit or qualify that order. Order the attorney general to launch an investigation to determine if any laws were broken or to appoint a special counsel to do the same.

2. Watch lists.
Issue an executive order requiring watch lists to be completely reviewed within 3 months, with names limited to only those for whom there is credible evidence of terrorist ties or activities. Repeal Executive Order 13224, which creates mechanisms for designating individuals and groups as terrorist suspects and preventing US persons and companies from doing business with them - a power of such breadth that, the record shows, it inevitably leads to the designation of many innocent people and does more harm than good.

3. Freedom of Information - Ashcroft Doctrine.
Direct the attorney general to rescind the “Ashcroft Doctrine” regarding Freedom of Information Act compliance, which instructs agencies to withhold information whenever there is a “sound legal basis” for doing so, and return to the compliance standard under Attorney General Janet Reno, which promoted an “overall presumption of disclosure” of government information through the FOIA unless it was “reasonably foreseeable that disclosure would be harmful.” (more…)

The transition site has been created for the incoming administration of President-Elect Barack Obama and Vice President-Elect Joe Biden. It contains a variety of information on plans for the future, including some that affect individual privacy. Here are a few items of interest under the Protecting America section.

 Defeat Terrorism Worldwide

• [...] New Capabilities to Aggressively Defeat Terrorists: Barack Obama and Joe Biden will improve the American intelligence apparatus by investing in its capacity to collect and analyze information, share information with other agencies and carry out operations to disrupt terrorist operations and networks. [...]

Strengthen American Biosecurity

• [...] Prevent Bioterror Attacks: Obama and Joe Biden will strengthen U.S. intelligence collection overseas to identify and interdict would-be bioterrorists before they strike.
• Build Capacity to Mitigate the Consequences of Bioterror Attacks: A well-planned, well-rehearsed, and rapidly executed epidemic response can dramatically diminish the consequences of biological attacks. Barack Obama will ensure that decision-makers have the information and communication tools they need to manage disease outbreaks by linking health care providers, hospitals, and public health agencies.

Protect Our Information Networks
As president, Barack Obama will lead an effort, working with private industry, the research community and our citizens, to build a trustworthy and accountable cyber infrastructure that is resilient, protects America’s competitive advantage, and advances our national and homeland security. [...]

• Mandate Standards for Securing Personal Data and Require Companies to Disclose Personal Information Data Breaches: Nearly 10 million Americans are victims of identity theft each year, costing more than $55 billion. We must ensure that the privacy of personnel data in computer systems is better protected. The federal government must partner with industry and our citizens to secure personal data stored on government and private systems. An Obama administration will institute a common standard for securing such data across industries and will back strong legislation to protect the rights of individuals in the information age. [...] (more…)