Privacy and Security Law Blog : Privacy & Security Law Blog : Davis Wright Tremaine LLP : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai, Portland and Anchorage Law Firm

Posted by Randy Gainer

The Department of Justice disclosed its most recent proposed changes to the Foreign Intelligence Surveillance Act (FISA) on April 13^th. The DoJ proposals are set out in Title IV, “FISA Modernization Provisions,” of the Fiscal Year 2008 Intelligence Authorization Act. The DoJ also issued a supposed “Fact Sheet” on Friday the 13^th promoting the proposals but, as Lisa Graves of The Center for National Security Studies said her section-by-section critique of the DoJ “Fact Sheet”, the DoJ ignores the facts and misrepresents the effects of the proposed changes. “The bill’s changes are not modest updates to modernize FISA and increase privacy, but would dramatically change the law and substantially weaken civil liberties protections in the current law.” Id., 1. 

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Posted by Bruce E. H. Johnson

The Real ID Act has been described by Crosscut columnist Skip Berger as creating "what is in essence America's first national identity card using driver's licenses that could be embedded with computer chips and biometric information, such as fingerprints. It has been proposed that such cards be required of every citizen who wants to drive, access government buildings, apply for federal benefits, or fly on commercial aircraft. Management of the vast databases would fall to each state's department of motor vehicles."

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Posted by Randy Gainer

In El-Masri v. United States, No. 06-1667 (4th Cir. March 2, 2007), a panel of the Fourth Circuit Court of Appeals affirmed the dismissal of Mr. El-Masri's claims related to his "extraordinary rendition" by the CIA. The Court held that El-Masri could not litigate his claims against the CIA and other parties because the central facts of his case were privileged pursuant to the state secrets privilege. Slip Op., 20. The Court's concluded that the "very subject matter" of the rendition program was so secret El-Masri's claims had to be dismissed despite:

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Posted by DWT

Are you flying for the holidays this year? Are you bringing id with you? What happens if you don't? NPR reporter Martin Kaste reports on the practical implications of TSA's secret law which affects millions of travelers every day. The text of the federal law that requires travelers to show identification is a secret -- you cannot read it because the federal government insists the law itself is "Sensitive Security Information." TSA's spokesperson refused to even be interviewed on tape discussing this point with NPR. John Gilmore and others are asking the United States Supreme Court to hear his legal challenge to the secrecy aspect of this law.

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Posted by Randy Gainer

Speakers at the 16th annual review of National Security Law, held November 30-December 1, 2006, in Washington, D.C., addressed topics ranging from accountability for actions by private security contractors on the battlefield to civil litigation against terrorists and their bankers.  Approximately 440 lawyers attended the conference, which was sponsored by the ABA Committee on Law and National Security, by the Center for National Security Law at the University of Virginia School of Law, and by the Center on Law, Ethics, and National Security at Duke University School of Law.  Conference materials, which include several insightful papers, are available online.

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Posted by Lance Koonce

If you are wondering why the boxes of your favorite nasal decongestant have been replaced by laminated cards that, quite frankly, aren't as easy to swallow and don't have the same efficacy as those little red pills, you can thank the Patriot Act for the inconvenience.

 

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Posted by DWT

In a lawsuit testing the limits of the Transportation Security Agency's (TSA) authority to screen passengers without disclosing the nature of the screening, Plaintiff/Petitioner John Gilmore is seeking Supreme Court review of a Ninth Circuit Court of Appeals decision in which that court held that petitioner lacked standing to challenge anything other than the identification-or-search requirement, rejecting Gilmore’s due process claim that he received inadequate notice of the identification-or-search requirement. The Court held that petitioner had "actual notice" of the identification or-search requirement (in particular, "several airline personnel . . . told him that in order to board the aircraft, he must either present identification or be subject to a ‘selectee’ search."). Several organizations have amicus briefs on behalf of Gilmore. (See here, here, and here).

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Posted by Bruce E.H. Johnson

Privacy International has issued its annual Privacy and Human Rights Study analyzing privacy protections around the world. The study ranks the United States near the bottom for privacy protections, calling it an "extensive surveillance society." 

In failing to provide privacy rights, the U.S. is in very interesting company, as one news account noted:

Privacy International ranked 36 nations around the globe, including all European Union nations and other major democracies, and determined that in categories such as enforcement of privacy laws, the U.S. is on par with countries like China, Russia and Malaysia.

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Posted by K.M. Das

Last week the Washington Post reported that the FBI has built a database with more than 659 million records. FBI officials identified the database, culled from 50 FBI and other government agency sources, as one of the most powerful data analysis tools available to law enforcement and counterterrorism agents. The database, known as the Investigative Data Warehouse, was launched in January 2004, but demonstrated by FBI officials as criticism that the FBI’s technology—in fact the technology used by the federal government as a whole—is outdated and failing as the fifth anniversary of September 11, 2001, approaches.

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Department of Justice lawyers recently escalated their efforts to prevent courts and administrative agencies from reviewing the NSA's domestic surveillance program. On June 6, the DoJ filed a statement supporting a motion by AT&T to consolidate 28 class actions challenging the NSA program.  The DoJ said in the statement that it "intends to assert the military and state secrets privilege . . . in those actions to seek their dismissal." The DoJ also sued the Attorney General of New Jersey and other New Jersey officials to prevent them from subpoenaing phone company records.  The New Jersey officials are trying to determine whether the phone companies broke the law by providing call records to the NSA without a court order.

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Posted by Merrill Baumann

Last week the Department of Justice and Attorney General's office issued, in a brief letter, the "report" required under the Foreign Intelligence Surveillance Act summarizing activities in 2005 at the Foreign Intelligence Surveillance Court, the organization that issues warrants for surveillance requests. Of the 2,074 secret surveillance requests in 2005, two were withdrawn by the government before the FISC ruled on them. And of the remaining 2,072 requests for electronic surveillance and physical searches, the FISC approved, well, 2,072 of them. That has a lot of people worrying over exactly how critical the FISC is. The American Bar Association, for example, is calling on Congress for increased oversight, and more stringent reporting requirements. The Electronic Privacy Information Center provides a good update on FISC activities here.

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Posted by Randy Gainer

The Senate Intelligence Committee voted today not to investigate the NSA domestic spying program. The Republican majority on the Committee instead is backing a bill that would retroactively authorize the NSA to conduct the types of domestic electronic surveillance the NSA has been conducting since at least 2001. The bill, termed the Terrorist Surveillance Act of 2006, would reportedly permit the NSA to conduct surveillance without a warrant for 45 before justifying the wiretapping to any court. The Senate Committee's refusal to investigate the Bush Administration's decision to ignore the Foreign Intelligence Surveillance Act ("FISA") means that it is up to the courts to enforce FISA and constitutional principles, such as separation of powers principles, and First and Fourth Amendment rights.

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Posted by Steve Chung

The New York Times has sued the U.S. Department of Defense for its failure to disclose documents regarding the National Security Agency's domestic spying program. After the Times broke the story in December that the NSA had been intercepting domestic communications that were suspected to be linked with al Qaeda, it made a request for documents under the Freedom of Information Act. The Times sought a broad range of documents including all internal memorandum and emails about the program of monitoring phone calls without court approval, as well as the names of people or groups targed under the program. Dissatisfied with the lack of response from the Pentagon, the Times filed suit against the Department of Defense, as the parent agency of the NSA, asserting that the Pentagon failed to assert that any unusual circumstances would justify extra time to respond.

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Posted by Randy Gainer

A Washington Post article on February 9, 2006 revealed that the Chief Judge of the Foreign Intelligence Surveillance Court directed the Department of Justice in 2004 not to present applications for FISA orders to the FISA Court (FISC) that were based on information gathered through the NSA's domestic surveillance program. The previous Chief Judge of the FISC, Royce C. Lamberth, reportedly issued a similar directive to the DoJ as well. Judge Lamberth and Judge Kollar-Kotelly were the only members of the FISC that had been told about the NSA program. The directives of the two FISC Chief Judges "reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence," the Post says.

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Posted by Lance Koonce

Earlier today, the Transportation Security Administration (TSA) told Congress that it would be sending the Secure Flight program back for re-certification, citing privacy concerns raised by an internal audit. A transcript of the testimony of Assistant Secretary Kip Hawley before the Senate's Committee on Commerce, Science and Transportation can be found here.

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Posted by Thomas R. Burke

The Transportation Security Administration and the FBI have agreed to pay $200,000 in attorneys' fees to the ACLU to settle a Freedom of Information Act and Privacy Act lawsuit filed in 2003 seeking information about the government's "no fly" list to screen airline passengers. ACLU press release here; additional news coverage here. U.S. District Judge Charles Breyer of the Northern District of California in San Francisco approved the settlement Tuesday afternoon (1/24/06).

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Posted by K.M. Das

On January 19, 2006, the Electronic Privacy Information Center ("EPIC") filed a Freedom of Information Act ("FOIA") lawsuit against the Department of Justice ("DOJ") to attempt to expedite the DOJ's production of documents relating to the National Security Agency's domestic surveillance program.

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Posted by Randy Gainer

The Department of Justice published a 42-page memorandum on January 19, 2005 that defends the National Security Agency's domestic surveillance program. The DoJ memo responds to arguments raised by the Congressional Research Service in its January 5, 2006 report and by 14 law professors and former government officials in their January 9, 2006 letter to Congress. The DoJ memo elaborates on many of the same points it made in a December 22, 2005, letter to Congress but goes further by claiming that "acute constitutional crises" will result if the resolution authorizing the use of force against al Qaeda (the "AUMF") is not interpreted as having given the President authority to direct the NSA to conduct the domestic surveillance program. January 19 DoJ memo at 35.

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Posted by K.M. Das

On Thursday, January 5, 2006, the Congressional Research Service released a 44-page memorandum casting further doubt on the legality of the National Security Agency's monitoring of international communications of American citizens and residents. CRS, housed within the Library of Congress, is the "public policy research arm of the United States Congress." CRS is intended to give Congress "its own source of nonpartisan, objective analysis and research on all legislative issues."

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Posted by Randy Gainer

The Justice Department announced last week that it will try to determine who leaked to the New York Times details of the NSA's secret data mining operation. The DoJ inquiry is just one of many investigations that will probably make headlines in the next few months.

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Posted by Thomas R. Burke

If 30,000 airline passengers since last November have taken the time to complain about being mistakenly being tagged as a "terrorist" -- literally tens of thousands of others must have also been mistakenly labeled. The TSA admitted this week that some 30,000 passengers have complained because their names have mistakenly been matched with names on federal watch lists, including the government's infamous "no fly" list.

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Posted by DWT

The Privacy and Security Law Blog is today able to release, for the first time anywhere, the final set of previously secret documents produced by the Transportation Security Administration ("TSA") and the FBI in connection with a high profile Freedom of Information Act ("FOIA") lawsuit involving the government "no fly" list. The documents include the names of TSA employees involved in the administration of the list:

TSA Documents, pages 1-12.
TSA Documents, pages 12-24.
FBI Documents, pages 1-6.

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On October 25, 2005, President Bush signed Executive Order 1388, which orders that "agencies shall, in the design and use of information systems and in the dissemination of information among agencies: (a) give the highest priority to . . . (iii) the interchange of terrorism information between agencies and appropriate authorities of State, local, and tribal governments, and between agencies and appropriate private sector entities . . . ." The text of the Order can be found here.

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Posted by Randy Gainer

The indictment of I. Lewis "Scooter" Libby on five counts, including obstruction of justice, giving false statements to the FBI, and perjury to the grand jury, has caused many to question whether Karl Rove will be also be indicted shortly. Paragraph 21 of the Libby indictment states:
On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White

House ("Official A") who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson's wife was discussed as a CIA employee involved in Wilson's trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson's wife.

It appears to some that "Official A" is Karl Rove.

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Posted by Randy Gainer

The special prosecutor Patrick Fitzgerald is reportedly considering asking the grand jury in the Plame leak case to indict Karl Rove and Lewis "Scooter" Libby on espionage charges, according to "lawyers involved in the case" who spoke to The Washington Post. A "lawyer in the case" told the same thing to The New York Times. Other media, including PBS, have speculated that Fitzgerald may be considering a conspiracy charge against Rove, Libby, and possibly others "not to out a CIA agent knowingly, which is a hard case to prove, but a conspiracy rather using classified information in violation of laws protecting classified secrets."

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Posted by Merrill Baumann

The Department of Homeland Security is continuing its test program whereby RFID tags will be embedded in the I-94 and I-94W Forms issued to foreign visitors to the US. The Electronic Privacy Information Center has issued further comments urging DHS to abandon or delay this project until privacy concerns are adequately addressed. EPIC claims that the RFID tags can be read by countless others, thereby providing persons outside of customs and passport control with unauthorized access to personal information and tracking capabilities. EPIC urges that, at a minimum, DHS look into adoption of "Basic Access Controls" embraced by the International Civil Aviation Organization, which would enable RFID chips to require chip readers to authenticate themselves before any data would be transmitted.

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Posted by Tom Burke

Inventors of devices that may be of interest to the security-focused federal government might take note of Crater v. Lucent, a recent decision of the Federal Circuit Court of Appeals. The case features a fascinating discussion of the "state secrets privilege," used in this case to dismiss a civil lawsuit filed by an inventor who, inspired by the symmetrical halves of a tennis ball, created a coupler for connecting pipes without threads or bolted flanges. The problem? The invention had military applications which ultimately led to the dismissal of the inventor's infringement action on national security grounds. See Kevin Poulsen of Wired who followed this interesting case.

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