Surveillance

I had the opportunity to go to the Supreme Court to watch the oral arguments in a case called United States v. Carpenter. Carpenter deals with what standard law enforcement must meet to obtain cell site location information from a wireless carrier, which fundamentally is about the appropriate balance between privacy and security. This is an issue of great interest to Verizon.  Verizon joined an amicus brief in the case this summer, and we will host an event in Washington, DC to discuss it in more detail in the new year. 

The Department of Immigration & Customs Enforcement is taking new steps in its plans for monitoring the social media accounts of applicants and holders of U.S. visas. At a tech industry conference in Arlington (VA), ICE officials explained to software providers what they are seeking: algorithms that would assess potential threats posed by visa holders in the United States and conduct ongoing social media surveillance of those deemed high risk. The comments provide the first clear blueprint for ICE’s proposed augmentation of its visa-vetting program.

Sens Patrick Leahy (D-VT) and Mike Lee (R-UT) released their bipartisan proposal to renew a powerful surveillance authority for collecting foreign intelligence on US soil, but with a new brake on the government’s ability to access the data. The bill would require government agencies to obtain a warrant before reviewing communications to or from Americans harvested by the National Security Agency under the surveillance authority known informally as Section 702. The measure stands little chance of passage.

[Commentary] With the understandable focus on the will-they-or-won't-they of congressional tax reform, one of the most important tasks facing Congress before year's end has garnered little national attention: reauthorization of the law that governs foreign intelligence surveillance on U.S. soil.  There is a growing sense in Congress that changes are needed to better protect Americans' privacy. One of the leading reform proposals is the USA Liberty Act, a bill introduced by a bipartisan group of House Judiciary Committee members that will be marked up in committee this week.

The FBI has confiscated the phone of the gunman who opened fire at a Texas church Nov 5 but is unable to access it for the ongoing investigation.  FBI Special Agent Christopher Combs, who is leading the investigation, told reporters that the bureau had flown the device to Quantico (VA) Nov 6 and that agents have been reviewing the phone but have not been able to get into it.  “It actually highlights an issue that you’ve all heard about before with advance of the phones and the technology and the encryption, law enforcement, whether it’s at the state, local or the federal level, is increasin

Reps Ted Poe (R-TX) and Zoe Lofgren (D-CA) have proposed amending the USA Liberty Act to toughen protections against warrantless searches and seizures of emails and other online communications. In Oct, House Judiciary Committee Chair Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI) introduced the USA Liberty Act, which would reform and reauthorize Sec. 702 of the Foreign Intelligence Surveillance Act, which authorizes the surveillance of communications from non-U.S. residents.

On Oct 31’s technology-executive hearings before the Senate Intelligence Committee, a key tension at the heart of the internet emerged: Do American tech companies, such as Twitter, Facebook, and Google, operate as American companies? Or are they in some other global realm, maybe in some place called cyberspace?

[Commentary] One of the biggest cases for the US Supreme Court’s current term could mark a watershed moment for the Fourth Amendment. In Carpenter v. United States, the court will consider whether police need probable cause to get a search warrant to access cell site location information (CSLI), data that's automatically generated whenever a mobile phone connects to a cell tower. Not only does this case offer a chance to protect privacy rights for cell phones, Carpenter also provides an opportunity to reevaluate an antiquated legal theory, called the third-party doctrine, that underpins many government surveillance programs.

If the Supreme Court rules that CSLI falls outside the Fourth Amendment, warrantless searches will inevitably lead to wrongful seizures.

[Nick Sibilla is a legislative analyst at the Institute for Justice, a libertarian-leaning public interest law firm.]

Social media has become an integral part of everyday life for individuals around the world. In light of the growing role of online communication, the Department of Homeland Security (DHS) implemented a notable change to its collection and record-keeping of social media information and search results of non-US persons (naturalized citizens, green card holders, immigrant visa holders, asylees, special immigrant juveniles, and student visa holders) in the United States. Per a notice issued in September, the information will be stored in DHS’ visa and immigration history records for each individual, also known as “Alien Files” or “A-Files.” Given the serious threats to freedom of association and privacy posed by this practice, OTI has signed onto a coalition letter expressing concern regarding DHS practices around social media collection and retention.