On Friday, the Obama Administration released a “white paper” articulating its case for the legality of the NSA call records program under Section 215 of the Patriot Act and under the Fourth Amendment. I found the “white paper” a somewhat frustrating read, as it is essentially a brief for the government’s side with no brief coming to oppose it. Although the white paper raises some interesting points, it also fails to confront counterarguments and address contrary caselaw.

My comments:

Some observations regarding the First Amendment chilling effects issue.

1. The whitepaper argues that court imposed rules that restrict the Government's access to the collected metadata substantially mitigate any First Amendment concern arising from the breadth of collection. This is almost a good argument. However, chilling effects have a lot to do with trust and the intersection between chilling effects and secret courts presents a challenge that is unaddressed here. Lets say the court authorized the NSA to access the data for a different reason. Lets say the court created different procedures for accessing the data. As an ordinary citizen, I would have no idea. In fact, the NSA may already be accessing the data for other reasons and misrepresenting this to the public, just as a few months ago the Director of National Intelligence misrepresented the fact that data was being collected at all.

Because there is no way for citizens to know, ultimately, what data is being collected, how the data is being used, or whether safeguards exist for accessing the data, "oh they're only using that to investigate terrorists" may not be a reasonable assumption for people to make, even if its really true. The lack of transparency coupled with public misrepresentations has created a trust vacuum which has its own chilling effects on First Amendment protected activities.

2. The reference to US v Ramsey is interesting - the idea that a warrant requirement for reading content during a border search limits the chilling effect of those searches on first amendment activity. While there is nothing technically wrong with way the reference is used here, its worth noting that the Fourth Circuit in United States vs. Ickes seemed to hold that the presence or absence of a warrant requirement for reading content has no bearing on a First Amendment analysis of border searches, so they are making an argument based on an observation that may be bunk in its original context. The Fourth Circuit suggested that law abiding citizens don't need to worry about suspicionless border searches of our First Amendment protected material because border agents don't have the time and resources to search every laptop. I personally don't find that very reassuring, but even if you do, the automated searches that the NSA can perform on collected data eliminate the rationalization that "they don't have enough time to bother with me," so a warrant requirement might be necessary here even if you don't think its necessary at the border.

The Volokh Conspiracy » The Problem With the Administration “White Paper” on the Telephony Metadata Program

Across the US, from Maryland to Seattle, work is underway to construct user-owned wireless networks that will permit secure communication without surveillance or any centralised organisation. They are known as meshnets and ultimately, if their designers get their way, they will span the country.

Dan Ryan is one of the leaders of the Seattle Meshnet project, where sparse coverage already exists thanks to radio links set up by fellow hackers. Those links mean that instead of communicating through commercial internet connections, meshnetters can talk to each other through a channel that they themselves control.

Meshnet activists rebuilding the internet from scratch - tech - 08 August 2013 - New Scientist

Two important lessons of the last dozen years are (1) the government will increase its powers to meet the national security threat fully (because the People demand it), and (2) the enhanced powers will be accompanied by novel systems of review and transparency that seem to those in the Executive branch to be intrusive and antagonistic to the traditional national security mission, but that in the end are key legitimating factors for the expanded authorities.  This was true, I argued in Power and Constraint, about habeas review of GTMO detentions, enhanced congressional and judicial oversight of military commissions, the 2008 amendments to FISA, and greater public transparency and congressional oversight of targeted killing by UAV (a process still in flux).  And it will be true of expanded NSA authorities as the NSA’s vital capabilities become even more important to our security.  In this sense, the Snowden revelations – to the extent that they force NSA to open up, and to get used to greater public scrutiny, and to avoid excesses, and to recalibrate its understanding of the tradeoffs between openness and security – might one day be seen to have paved the way to broader NSA powers.

Lawfare › Reflections on NSA Oversight, and a Prediction That NSA Authorities (and Oversight, and Transparency) Will Expand

People in the intel establishment think that this unanimous court decision was a travesty of justice and a victory of radicalism.

United States v. U.S. District Court - Wikipedia, the free encyclopedia

“If the bureaucrats in Washington could get the core principles that protect the privacy of Americans distilled out of the secret FISA court opinions, and presented in a bill that makes its way through our increasingly ineffective Congress, maybe we wouldn’t have a problem with our youth becoming so nihilistic and distrusting of government,” Levay argued, adding, ”[m]aybe then, when Hayden’s successor, General Alexander, is speaking to the community he himself calls ‘the technical foundation of our world’s communications’, he wouldn’t find himself heckled by people who believe they are being lied to.”

Rattle blasts Hayden and Congress in WaPo.

Why a former NSA chief just made a big mistake by dissing hackers

Former NSA Chief misunderstands his opponents so completely that he actually thinks that they would be more upset about Snowden's arrest than they are about the programs that he revealed, and are likely to tear the Internet down if Snowden is apprehended.

Frankly, I don't know whether this is hilarious, offensive, or infuriating.

"If and when our government grabs Edward Snowden, and brings him back here to the United States for trial, what does this group do?" said retired air force general Michael Hayden, who from 1999 to 2009 ran the NSA and then the CIA, referring to "nihilists, anarchists, activists, Lulzsec, Anonymous, twentysomethings who haven't talked to the opposite sex in five or six years".

Nihilists? Why would nihilists care about Snowden? They're nihilists Hayden! They don't believe in anything!

Former NSA chief warns of cyber-terror attacks if Snowden apprehended | Technology | theguardian.com

I am a civil-liberties lawyer who has worked both for Mr. Clapper and for the American Civil Liberties Union. I have a unique perspective on the vast gulf between the way the public views spy agencies and the way the intelligence community views itself.

Timothy Edgar: Big Transparency for the NSA - WSJ.com

In May, Obama called for the repeal of the AUMF. This document is worth reading in its entirety, as it provides a good picture of the present state of the GWOT.

I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

It does, of course, contain one cringe worthy moment on civil liberties:

Indeed, thwarting homegrown plots presents particular challenges in part because of our proud commitment to civil liberties for all who call America home. That’s why, in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are. That means reviewing the authorities of law enforcement, so we can intercept new types of communication, and build in privacy protections to prevent abuse. That means that – even after Boston – we do not deport someone or throw someone in prison in the absence of evidence. That means putting careful constraints on the tools the government uses to protect sensitive information, such as the State Secrets doctrine. And that means finally having a strong Privacy and Civil Liberties Board to review those issues where our counter-terrorism efforts and our values may come into tension.

Lawfare › Text of the President’s Speech This Afternoon

The natsec establishment is now engaging in gross distortions of history, calling the founders advocates of warrantless surveillance:

A few examples of the principles and practices of the founding fathers will suffice for now: General George Washington approved of mail openings because of the “innumerable advantages” that arise from such an act, and he went so far as to provide instructions on successful mail opening techniques: “contrive a means of opening them [letters] without breaking the seals, take copies of the contents, and then let them go on.” Washington was not alone in believing in this method of eavesdropping; Thomas Jefferson, Benjamin Franklin, and John Adams served on a committee charged with disseminating excerpts from intercepted mail for propaganda purposes.

FWIW, the philosophy of the American Revolutionaries was first articulated in the early 1760's by a lawyer named James Otis in a suit challenging the constitutionality of warrantless searches of people's houses. John Adams was in the room for this hearing and was inspired by it.

Benjamin Franklin was Postmaster in the American colonies. In 1753 he required his employees to swear “not to open or suffer to be opened any Mail or Bag of Letters.” In 1782 Congress passed a law prohibiting the opening of mail without the consent of the addressee or a warrant.

As for Jefferson, in 1798 he wrote “The infidelities of the post office and the circumstances of the times are against my writing fully and freely… I know not which mortifies me most, that I should fear to write what I think, or my country bear such a state of things.”

Publius and the NSA Surveillance Program | Online Library of Law and Liberty

A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

"It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Exclusive: U.S. directs agents to cover up program used to investigate Americans | Reuters