Archive | Transparency

Unintended Targets: The NSA’s bulk email collection and Obama’s use of the word “targeting”

By on August 23, 2013 in Internet, Privacy, Transparency

A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.

The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.

Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.

Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.

Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.

Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.

0

UNC Grad to Head Open Government Coalition

By on August 12, 2013 in Transparency

A recent graduate of UNC’s dual-degree program in media law, Jonathan Jones (M.A., J.D. 2011), has been named director of the North Carolina Open Government Coalition and Sunshine Center at Elon University.  He also will teach courses in Elon’s School of Communications.

Currently an assistant district attorney for Durham County in North Carolina, Jones will begin his new job in mid-August.  In his new job, Jones will work with the coalition’s board to organize the state’s annual Sunshine Day, advise citizens about open government issues, produce webinars or workshops around the state, handle communication for the coalition, and find new ways to inform North Carolina citizens of the value and processes of open government in the state.

Jones previously worked for the NCOGC as a legal intern in summer 2010.  He researched business models for a regional nonprofit investigative reporting center.

In a press release, Jones said: “I’m ecstatic to pick up on the tremendous work coalition members have already been doing to educate record holders and record seekers about our state’s open government laws.  Transparency in government is the cornerstone of democracy. It instills public trust and gives citizens faith in their government. I look forward to helping sunshine find its way into communities across our state.”

At UNC Jones served as editor-in-chief of the First Amendment Law Review and worked on UNC’s Innocence Project.  He has published in the First Amendment Law Review, News Media & The Law, and “Sunshine, Inc.: The Basics of Covering Business Organizations” produced by the Reporters Committee for Freedom of the Press.

He earned an undergraduate degree in journalism from UNC and worked for six years as a reporter at newspapers in Maryland and Virginia and at the News & Record in Greensboro.

The North Carolina Open Government Coalition unites organizations interested in ensuring and enhancing the public’s access to government activity, records, and meetings. The nonpartisan coalition educates people about their rights, supports their efforts to gain access, and advocates the principles and benefits of open government. The Sunshine Center is the educational arm of the NCOGC and focuses on outreach efforts to inform citizens about the importance of government openness.

0

EFF Week 3: The First and Fourth Amendments — down, but hopefully not out

By on June 9, 2013 in First Amendment, Internet, Privacy, Transparency

It was a busy week at EFF. The phones have been ringing almost non-stop with journalists, supporters, and concerned people. The news outlets wanted interviews with attorneys. The supporters wanted to commiserate. The concerned people wanted answers — how can the government do this, and what does it mean? Of course, the fact that the National Security Agency has been spying on Americans’ phone records was the big story, but that’s not the only threat to our rights to privacy and free speech that we suffered this week.

Warrantless DNA searches

On Monday, the Supreme Court ruled that police can take a DNA sample from someone who is arrested — not even convicted of a crime — without a warrant. A DNA swab is a search under the Fourth Amendment, and this is the first time the Court has allowed an exception to the need for a warrant for general crime solving and investigative purposes. The majority held that the “search” was only the cheek swab to collect the DNA, not the subsequent steps of extracting the DNA profile and comparing it to an FBI database of DNA left at crime scenes.

Revenge porn

Also on Monday, new legislation passed the California State Senate’s Public Safety Committee that would make the electronic distribution of revenge porn a misdemeanor. Revenge porn is the practice of posting pictures of former romantic or sexual partners online. EFF Staff Attorney Nate Cardozo was interviewed by ABC about the bill’s First Amendment implications.

Nate being interviewed by ABC News. The interns were filmed for some B-roll, but we didn’t make the cut.

Nate being interviewed by ABC News. The interns were filmed for some B-roll, but we didn’t make the cut.

 Nate said that while revenge porn is a “serious issue,” the California bill is not narrowly tailored enough to pass First Amendment scrutiny because it punishes not only the “bad actor” (the person who posts pornographic pictures) but also everyone who distributes the images once they are posted.

NSA phone and Internet data collection

On Wednesday and Thursday, The Guardian published leaks from Edward Snowden revealing that the National Security Administration has been operating a broad, untargeted phone and Internet spying regime for at least seven years. Wednesday’s leak revealed that the NSA has been collecting the phone records of millions of Verizon customers, including all calls made into, within, and out of the United States. Thursday’s leak revealed that the NSA has been intercepting certain information from major Internet companies including Google, Microsoft, Apple, Facebook, and Skype.

These leaks confirm that the government has been using secret law to justify warrantless spying on Americans. The Fourth Amendment generally protects us from warrantless, suspicionless searches by the government. The NSA derives its authority to collect phone records from secret opinions and orders from the Foreign Intelligence Surveillance Court interpreting the Patriot Act. Unlike other courts, whose opinions are public, FISA Court opinions and orders are kept secret.

Why we should care that the government is collecting our phone records

In a statement on Thursday, President Obama said we shouldn’t worry about the NSA’s data collection because the government is not listening to our phone calls. It’s true that the NSA needs to obtain a warrant, based on reasonable suspicion, to listen to the content of someone’s phone call. But even without hearing your conversation, the NSA can obtain an alarming amount of data about you based on whom you called, where you called to and from, and when the calls were made. This information is commonly referred to as “metadata,” and EFF Senior Staff Attorney Kurt Opsahl’s new blog post explains why it matters. These are some of Kurt’s examples illustrating what your phone records might reveal to the NSA:

  • They know you called the suicide prevention hotline from the Golden Gate Bridge. But the topic of the call remains a secret.
  • They know you spoke with an HIV testing service, then your doctor, then your health insurance company in the same hour. But they don’t know what was discussed.
  • They know you received a call from the local NRA office while it was having a campaign against gun legislation, and then called your senators and congressional representatives immediately after. But the content of those calls remains safe from government intrusion.

President Obama also said that we can’t have 100 percent privacy and 100 percent security. He believes the government has struck the correct balance. He said he welcomes a national debate about how much privacy we want to give up in the name of fighting terrorism. However, he also said he does not welcome leaks about the NSA’s spying programs. How can we have a real debate about how much spying is too much, and how can the American people have a say in the so-called balance between privacy and security, when the government does all it can to hide the details of and justifications for its data collection programs?

Woody comes to California!

Me and Woody at a reception for the Privacy Law Scholars Conference.

Me and Woody at a reception for the Privacy Law Scholars Conference.

Woodrow Hartzog, brilliant privacy scholar, law professor, UNC J-School alumnus (Ph.D. 2011), and the best mentor a nerd could ask for, came to town this week for the annual Privacy Law Scholars Conference. Woody presented a working paper with Daniel Solove on privacy law and the FTC. It was so great to catch up!

0

Lessig v. Corruption (2013)

By on March 1, 2013 in Journalism, Transparency

lessigcartoon

Larry Lessig will visit UNC on Monday, and we will confess to feeling a bit geeked out at the UNC Center for Media Law and Policy.

What is it about Lessig that continues to captivate political activists, hacktivists and academic observers some 15 years after he was first elevated into the limelight as a special master in the Microsoft antitrust case?

I can’t claim any special understanding of Lessig’s magnetism beyond what many others have said and written in the past. He is obviously not without his critics and detractors. But there are a few insights I can share about what makes him an unusual legal scholar and uniquely qualified, I believe, to root out corruption in government.

He’s someone who reaches and engages his audience.  Lessig’s first blog was followed closely by legal scholars, the tech community and others interested in copyright reform. There, he regularly engaged with those who posted comments and critiques, many of which were as interesting and thoughtful as Lessig’s own posts. In several of those posts, he began to envision a plan to change Congress, eventually the start of his Change Congress/Fix Congress/Rootstrikers movement. His move into the study of institutional corruption was prompted by years of uphill battle against the special interests entrenched in copyright legislation – and in the pockets of congressional representatives seeking re-election. Copyright wasn’t going to change without real change in how Washington worked.

I added my two cents and theorized about how such a movement might gain mass media attention. To my surprise, we engaged in a back-and-forth email discussion, and I was off to Washington, D.C., to help out with his initial announcement to launch Change Congress.  I was one of many who found themselves in this position.

But I’m just another academic.

On another occasion, I went to Cleveland to see Larry speak to a group of reform-minded Clevelanders about his efforts to change Beltway culture. The audience was interesting and varied and included a gentleman hiding in the back of the room who struck me as a Tea Party supporter. (I lived close to Tea Party activists in the Midwest for several years, so I had a good sense of who they were and what they wanted at a grassroots level.) Out of all the wonks, activists and academics in the room, it was this one young man that Larry seemed most compelled to talk to and to answer his questions and persuade. Lessig is, as he says, “cross-partisan” not “bi-partisan.”

He’s someone who has publicly changed his mind, but who is more authentic for having done so. Americans love a good story, but I think they especially like a credible story. Lessig’s is a story of right to left. Raised a Reagan Republican, he experienced a sea change in thought studying abroad. Increasingly, he has taken on the rhetoric of the activist, referring to Dr. Martin Luther King and pledging justice in the wake of Aaron Swartz’s death. This is not a Lessig we would recognize before the U.S. Supreme Court in 2003. It’s an unapologetically public journey of change, and he has taken many of us – willingly — along with him.

He understands and embraces the passion of youth.  In Remix, Lessig warned of a war against youth culture and a stifling of innovation under an increasingly repressive copyright regime. He understood that new generations would see code as their printing press, with new possibilities and social upheavals on the horizon as a result:

“Now I worry about the effect this war is having upon our kids. What is this war doing to them? Whom is it making them? How is it changing how they think about normal, right-thinking behavior? What does it mean to a society when a whole generation is raised as criminals?”

His words were tragically prescient. Aaron Swartz’s death has been a watershed moment in the copyright wars – a moment that is mobilizing the Internet in new ways.

He listens more than he talks. His unique presentations are legendary, and hundreds will flock to hear them. He can talk for more than a solid hour and hold the attention of everyone in a room. But if you watch Lessig away from the podium, he’s listening and asking questions more than he is talking — and particularly listening to folks at the grassroots. Away from the microphone, he is an observer and often the quietest person in the room.

He gets tech. And tech gets (and admires) him. There are few (if any) legal experts who understand technology as well as Lessig. He is as at home in Internet protocol as he is in intellectual property law. He speaks in code and is comfortable in geekdom. He likes learning from them. That has endeared him to that community.

Finally, he’s a constitutionalist. Perhaps others have said this of him. I realized today that this year is the tenth anniversary of Eldred v. Ashcroft, the U.S. Supreme Court case challenging the Copyright Term Extension Act, the case Lessig argued in front of the Court on behalf of Eldred.  Constitutionalism recognizes that the document isn’t just a series of rules – it’s a series of rules that limit government on behalf of the people. Eldred was all about limiting the government’s reach. Lessig’s new fight is about limiting the effects of special interests on that governance.

With so much more at stake, we can only hope his new battle is more successful.

0

Center Co-Director to Join in Sunshine Day Celebration

By on March 12, 2012 in Transparency

UNC Center for Media Law and Policy Co-Director Cathy Packer will moderate a panel discussion about the strengths and weaknesses of the N.C. Public Records Law as part of the N.C. Open Government Coalition’s annual Sunshine Day celebration. The event will be held Wednesday, March 14, 2012, at Elon University. It is open to the public.

Discussing the public records law will be Hugh Stevens, a media law attorney from Raleigh; Fleming Bell, professor of public law and government in the UNC School of Government; Tom McCormick, Raleigh’s city attorney; and Fred Clasen-Kelly, a reporter for The Charlotte Observer.

Click here for a full description of the Sunshine Day event.

0