Privacy

In too many ways, 2013 was a year that vindicated the long-standing paranoia of many Americans, particularly the more conservative. A bewildering number of stories littered the news that seemed to confirm exactly the sort of gross government overreach that previously sounded like a delusion of someone whose eyes were scanning the skies for black helicopters. In spring 2013, for example, we learned that the IRS had been targeting the 501(c)(3) applications of conservative and libertarian organizations, apparently based solely on their political and philosophical affiliations. Nothing in 2013, though, fanned the flames of political paranoia quite like revelations of the National Security Agency’s mass surveillance programs.

In Clapper v. Amnesty International USA, decided in February, the U.S. Supreme Court dismissed Amnesty International’s constitutional challenge to a portion of the FISA Amendments Act of 2008. In its 5-4 opinion, the Court found that Amnesty lacked Article III standing, in part because the plaintiffs could not show that they had necessarily been targeted for surveillance. When Edward Snowden later disclosed details of the NSA’s PRISM surveillance program, civil libertarians experienced something of a Pyrrhic victory. Standing would not be a problem in many future lawsuits because the revelation of PRISM established that millions of Americans had been subject to some NSA spying. The only question was whether that surveillance amounted to a violation of the law.

As we leave 2013 and 2014 dawns, some new developments have emerged . . . .

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Edward Snowden

* Now that a federal judge has ruled against the NSA’s domestic spying program, maybe government prosecutors will cut Edward Snowden some slack — or maybe haha, yeah right. [WSJ Law Blog]

* On that note, the ACLU is appealing the other federal ruling that says the agency’s activities are constitutional. The NSA will let you know what the Second Circuit’s decision is this spring. [Guardian]

* Alas, Judge Shira Scheindlin knew from the get-go that her stop-and-frisk ruling would be contested, and she even warned the lawyers involved that they ought to consider a jury. [New York Times]

* “How do you say, ‘I’m married, but not really? I’m divorced, but not really?’” Thanks to Utah’s same-sex marriage ruling, unhappy gay couples who married in other states are rejoicing over the fact that they can finally get divorced. [Deseret News]

* Facebook, a social network that constantly changes its privacy settings to make your life less private, is being sued over its alleged interception and sharing of messages with advertisers. Shocking. [Bloomberg]

* It goes without saying that Sergio Garcia is having a happy new year. The California Supreme Court ruled that the undocumented immigrant will be able to legally practice law in the state. ¡Felicitaciones! [CNN]

* Judge William Pauley ruled that the NSA’s warrantless spying program is legal, noting that — if it had existed — the government could have predicted the 9/11 attacks. Good point, because intelligence agencies were in no position to figure out that there was an attack brewing without a Big Brother initiative. Oh… wait. [Huffington Post]

* On a related note, a cartoon from 1994 that predicted the NSA’s controversial programs. It’s really kind of scary…. [Slate]

* Britain’s clowns are furious that people are dressing up as clowns and trying to scare people. For their sake, let’s make sure they never hear about Pennywise. [Lowering the Bar]

* Professor Dave Hoffman evaluates the case for flat-rate tuition. [Concurring Opinions]

* The Wolf of Wall Street is about a criminal ripping off poor people. Bankers cheered at a recent showing. There is a lesson to be had there about what bankers would do if given an opportunity. [Business Insider]

* “Knockout,” a game where young boys cold-cock unsuspecting victims, is a serious issue. Nah, just kidding, it’s a crypto-racist overreaction. But at least one kid was stupid enough to try it and then tell a cop about it. Seriously. [Gawker]

John Yoo, who famously wrote the legal rationale for allowing the US government to torture people, has already defended the NSA’s activities, arguing that it takes too long for the NSA to obey the Constitution, so it shouldn’t have to. Given that, it was hardly a surprise to see his reaction to the recent ruling saying that the NSA’s bulk metadata collection program was likely unconstitutional and should be stopped. Yoo is… not a fan of this ruling. In fact, he uses it to rail against judges daring to make any determination about whether or not something violates the 4th Amendment. According to him (and only him) that’s the job of Congress, not the courts….

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* The DOJ is looking to retry an accused Somali pirate. They’re totally on top of piracy as long as it doesn’t take place here. [The Blog of the Legal Times]

* Yesterday we posted our holiday tipping thread, heavily citing Corporette’s Kat Griffin. Now she’s posted her own guide and we’re linking to it. It’s like Inception up in here. [Corporette]

* Why fashion gets knocked off: delving into the world of design patents and trade dress. [Fashionista]

* Comparing the modern NSA to the intelligence-gathering techniques employed during the American Revolution. Interesting stuff, but a total cover-up job. Where’s the discussion of Ben Franklin’s “electric kite drones,” eh? You must think we’re pretty naïve, Logan Beirne. [Fox News]

* Incredibly sad, but also incredibly fascinating: if a child is rendered brain dead by a possible medical mistake, should the state honor the wishes of the family to keep the kid on life support even though every day on life support makes an investigation into the cause of death harder? [CNN]

* Loyola University Chicago introduces a new curriculum to give students an opportunity to get real-world experience with a judge or practicing lawyer before graduating. A law school focusing on training lawyers to be lawyers? This isn’t all that surprising when you look back at Dean Yellen’s previous work. [Loyola University Chicago]

* Congratulations to Therese Pritchard on her election as the first female chair of Bryan Cave. We’re big fans… until you fail to leak your bonus memo to us first. The ball’s in your court now Pritchard. [WSJ Law Blog]

* The venerable Green Bag is parting ways with GMU Law. Thankfully, it has already found a new home. [PrawfsBlawg]

* Former White House attorney John Michael Farren who we reported on a lot in the past about beating his wife nearly to death… was found liable for beating his wife nearly to death. So that happened. [News Times]

“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

Katz v. United States

“’But who wants to be watched all the time?’

‘I do. I want to be seen. I want proof I existed [ . . . ] Most people do. Most people would trade everything they know, everyone they know — they’d trade it all to know they’ve been seen, and acknowledged, that they might even be remembered. We all know we die. We all know the world is too big for us to be significant. So all we have is the hope of being seen, or heard, even for a moment.”

The Circle, by Dave Eggers

The Circle (affiliate link), the latest novel by Dave Eggers, is a work of speculative fiction centering on a hypothetical technology company called the Circle. Eggers sets the story on a glossy, mythical Silicon-Valley internet campus that unapologetically resembles some famous not-so-mythical ones. At the start of the tale, the Circle has recently overtaken Google, Facebook, and Twitter. Its TruYou technology has created unified accounts for its users’ online presences, linking all social media profiles and bank information, tying it to users’ actual offline identities. TruYou is a convenience, a means of better connecting online, but it also changes the tenor of Internet conversation. Since TruYou eliminates pseudonyms and anonymous activity, it also restores real-life accountability to online comments and interactions. People are nicer. Shopping is easier. Communicating is quicker. People send “zings.” They respond with “smiles” or “frowns.” The reader need not decode much in order to recognize this world….

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Did you catch 60 Minutes last night? Did you at least catch the 60 Minutes promos during various awesome football games this weekend?

On last night’s program, Amazon CEO Jeff Bezos declared that Amazon intends to send drones to your house to deliver packages. I’m pretty sure this is the only strategy that would be ultimately effective in Afghanistan. Instead of using drones to bomb people, if we were sending HD televisions, water, and vacuum cleaners, you’d see that region become much more amenable to America. At the very least, sending people things from the ATL holiday gift guide (sponsored) is better than sending them warheads.

But the thought of Amazon drones dropping consumerism on us from the sky should be pretty terrifying to Americans. How would that even work? I live in an apartment building… the humans often don’t know where to leave my packages. Watching Bezos, all I could think of was angry robots shooting copies of the Washington Post at me through my window while I read news on the internet.

Luckily, the Amazon plan is currently illegal. And it’s likely to stay completely unworkable…

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The ongoing legal fight, in which a bunch of US tech and internet companies — namely Google, Facebook, Microsoft, Yahoo and LinkedIn — are suing the US government, claiming a First Amendment right to publish some details on the number of requests they get from the NSA under Section 702 of the FISA Amendments Act, as well as the number of users impacted by those requests, is getting ever weirder. The government had filed its response back at the end of September. And, you might notice, large portions of it are totally redacted. For example, here is page 13 of the document (though, numbered page 8):

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Do you really think you can bother this woman and not get cut?

* The trial of a Utah doctor accused of murdering his wife-to-be with a mistress 20 years his junior has kicked off a battle of medical experts trying to guide the jury through the competing theories about the cause of death. See, this was all easier when you could just introduce a new sister wife into the equation. [The Expert Institute]

* Is it acceptable to interrupt Justice Ginsburg’s dinner to show her something on your phone? [Slate (second item)]

* Case against Iowa law school for barring a student training a service dog will go forward. They should have just been happy it wasn’t a llama. [Des Moines Register]

* This week in clever footnoting: citing The Chairman of the Board in Footnote 2 (page 17). [U.S. Court of Appeals for the Second Circuit]

* Professor Eric Posner reviews Professor Rahul Sagar’s new book, Secrets and Leaks (affiliate link), which posits that people may be overreacting when they call for tearing down the NSA. [The New Republic]

* Jay Edelson and his associate Chandler Givens explain why the billable hour is the first thing that must go. Don’t they mean “Reason Number 1″ to reform the legal profession? [Reuters Legal Solutions]

* Judge Scheindlin is lawyering up, and Bloomberg looks at the various legal experts — including our own David Lat — who have spoken out about the case. Video embedded after the jump… [Bloomberg Law via You Tube]

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A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.

– Attorney Michelle Menken, arguing that the Massachusetts Peeping Tom law does not apply to her client, a man who was arrested for exercising his right to free speech — by taking “upskirt” pictures of women on the Boston subway.

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