Surveillance

Not to get all originalist, but isn’t “government collecting evidence at random based on vague suspicion” exactly the scenario that the Framers of the Bill of Rights feared? Liberals — or at least liberals outside the White House — generally agree on this. Even conservatives are on board with this one. However, there is an alternative view. It may be too clever by half, but maybe the collection of phone data wasn’t really a search or seizure? Maybe it’s a “reasonable” search?

Some very smart people try to make the case that gobbling up phone data on all of us isn’t really a constitutional case. Let’s see if they convince you…

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It’s time to yell back at a notorious loudmouth.

Former NSA head Keith Alexander — the original Million Dollar (a month) Man and premier cybersecurity consultant to the banking industry — is taking his years of expertise (and several mysteriously non-public patents) on the road, speaking at whatever venue will have him.

He recently delivered remarks at MIRcon in Washington, explaining exactly how simple it is for Americans to avoid the sort of domestic surveillance they always assumed they’d never have to worry about (you know, because of the Constitution and its various amendments, etc.). And remember, this man is asking $1 million a month to rent his brain….

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When you think of George Hamilton, if at all, you think of the walking precautionary example for artificial tanning. Maybe you think of Tom Hagen’s replacement as the Corleone Family lawyer in Godfather III (if you acknowledge that the movie exists). But there was a time in the 60s when George Hamilton was the bee’s knees and hob-knobbing with the rich and powerful.

And because he was an actor, Lyndon Johnson thought Hamilton was “running around with a bunch of homosexuals,” so the White House set the U.S. Supreme Court and — ironically — J. Edgar Hoover on the case of digging into George Hamilton’s private life. It’s like a “Stars — They’re Just Like Us” feature for the current administration — see, government spied on its people just as much in the 60s as it does today. It’s just back then knowing gay people made you “a potential terrorist” instead of “Bravo’s demographic.”

Thanks to a FOIA request at the heart of an Eastern District of Pennsylvania decision, this is all finally coming to light…

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Edward Snowden returned to the news this week when NBC aired an hour-long interview with him, the first on American TV. Anchor Brian Williams met with Snowden in a Moscow hotel. The 30-year-old former computer systems administrator described his motives for releasing an unprecedented payload of classified information about NSA surveillance.

Snowden is vexing. As a person, he seems a mix of likeable and unlikeable traits. He appears earnest, convinced of the rectitude of his choices even if, as he told NBC, “Sometimes, to do the right thing you have to break the law.” Yet he bristles at Obama Administration characterizations of him as a low-level employee, a high-school dropout. (For example, the president told reporters last year, “No, I’m not going to be scrambling jets to get a 29-year-old hacker.”) Even if Snowden is right to resist the connotations of those labels, listening to him defend himself in the interview can be painful. He insists he was “trained as a spy” who lived under an assumed identity and was a powerful operator. He sounds like a young man with a bruised ego. The last thing one wants to have to worry about in a situation of this great national and international importance, though, is one young man’s ego.

Snowden’s case is more important and more vexing. NSA’s surveillance programs are deeply troubling….

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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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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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‘They showed me the money, Xenu!’

* Judge Richard Leon’s decision in the NSA surveillance case is ripe for review by the D.C. Circuit, and given the court’s new make-up, we could see a very interesting result. Oh, to be an NSA agent listening in on those calls. [National Law Journal]

* With seven business days left until 2014, law firms all around the country are still desperately trying to get paid. Lawyers are working hard for the money — 83.5 cents to the dollar — so you better treat them right. [Wall Street Journal (sub. req.)]

* Who you gonna call? Your local bankruptcy attorney. Alston & Bird, currently housed in Heller’s old digs in Silicon Valley, will head to a new office whose former occupants include Dewey, and Howrey, and Brobeck, oh my! [Am Law Daily]

* Four were arrested in the tragic murder of attorney Dustin Friedland, and each is being held on $2 million bond. One of the alleged assailants has a history of putting guns to other people’s heads. [NJ Star-Ledger]

* “I think it would be wise for the NCAA to settle this now.” Thanks to the Ed O’Bannon lawsuit, the world of college sports will be forever changed, so all those video games you’ve got are now antiques. [CNBC]

* Tom Cruise settled his defamation lawsuit against a tabloid publisher over claims that he’d abandoned his daughter during the pendency of his divorce proceedings. Xenu is pleased by this announcement. [CNN]

* 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]

You get objectified and denied all control over your own sexuality. You’re welcome.

* Judge Brian Cogan has ruled that a group of New York Catholic institutions doesn’t have to provide health insurance plans that include birth control coverage to its employees because… insurance policies with provisions that other people may or may not ever invoke is a religious thing. Too bad no one told the Catholic Church in New York, which already pays for insurance that provides birth control coverage and has for years. [Jezebel]

* Judge Richard Leon’s decision ruling the NSA metadata gathering program unconstitutional makes a lot of good points, but perhaps the best is that even if you think there’s a compelling counter-terrorism concern that trumps constitutional safeguards, the NSA just can’t point to it. Of course we’ll all be singing another tune when the Moldovans take over. [Lawyers, Guns & Money]

* Here’s a tale of dealing with a Biglaw bully. I don’t get the concept — being locked in a locker is way better than spending the whole night conforming edits. [Big Law Rebel]

* Elie appeared on the Lawyer 2 Lawyer podcast to discuss drones. [Lawyer 2 Lawyer]

* Eyewitness testimony is often disastrously wrong. Suddenly that “Eyewitness News” title your awful local news channel uses seems really appropriate. [Slate]

* A guide for tech startups and software developers dealing with contracts. I’m looking in your direction, Winklevoss twins. [Alleywatch]

* An IP lawyer makes a rap video. His record may affirm that he knows IP, but I don’t think Death Row is going to be calling any time soon. Video embedded below…

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