A Perfect Storm of Terrible Legal Writing

From the ABA Journal, I learned about the resignation of Professor William Bradford of West Point. Bradford resigned after publishing a notably awful article entitled Trahison Des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column. Bradford also is alleged to have "misrepresenting his military and academic credentials," as reported in this Guardian article. The Guardian notes:

Bradford had represented himself in academic papers as an “assistant professor” at the Defense Department-run National Defense University. But he was not a professor there, nor even a staff employee, according to NDU representatives. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.

And as for that article it can be found here. The abstract reads:

Islamist extremists allege law of war violations against the U.S. to undermine American legitimacy, convince Americans that the U.S. is an evil regime fighting an illegal and immoral war against Islam, and destroy the political will of the American people. Yet Islamists’ own capacity to substantiate these claims is inferior to a critical cadre of American law of armed conflict academics whose scholarship and advocacy constitute information warfare that tilts the battlefield against U.S. forces by arguing — against evidence and reason — that the Islamist jihadis a response to valid grievances against U.S. foreign policy, that civilian casualties and Abu Ghraib prove the injustice of the U.S. cause, that military action is an aggressive over-reaction, and that the U.S. is engaged in war crimes that breed terrorists, threaten the rule-of-law, and make us less safe. Rather than lending their prodigious talents to the service of their nation, these legal academics, for reasons ranging from the benign to the malignant, have mustered into the Islamist order of battle to direct their legal expertise against American military forces and American political will. This psychological warfare by American elites against their own people is celebrated by Islamists as a portent of U.S. weakness and the coming triumph of Islamism over the West. 

This Article defends these claims and then calls for a paradigmatic shift in our thoughts about the objects and purposes of the law of armed conflict and about the duties that law professors bear in conjunction with the rights they claim under academic freedom. It then examines the consequences of suffering this trahison des professeurs to exist and sketches key recommendations to attenuate its influence of this, shore up American political will, and achieve victory over ISIS and Islamist extremism more broadly.

Bradford's difficult-to-follow (and 185 page!) article reveals that he is not above name calling:

Most pointedly, this charge is aimed at a clique of about forty contemptuously critical LOACA [Law of Armed Conflict Academy] scholars (“CLOACA”) who, by proposing that LOAC restrictions on Islamists be waived to provide unilateral advantage, that Western states face more rigorous compliance standards, and that captured Islamist militants be restored to the battlefield, effectively tilt the battlefield against U.S. forces, contribute to timorousness and lethargy in U.S. military commanders, constrain U.S. military power, enhance the danger to U.S. troops, and potentiate the cognitive effects of Islamist military operations. Moreover, CLOACA, rather than make good-faith legal arguments as to what LOAC does, does not, should, and should not require, offers up politicized arguments—against evidence and reason—that the Islamist jihad is a reaction to valid grievances against U.S. foreign policy, that civilian casualties and Abu Ghraib prove the injustice of the Western cause, that law enforcement suffices and military action is a gross over-reaction, that U.S.-led interventions in Iraq and Afghanistan are illegal aggression per se, that the United States is engaged in a pattern of war crimes à la Nazi Germany, that U.S. criminality breeds more terrorists and threatens the rule of law, that U.S. leaders should be prosecuted for crimes that make Americans less safe, and that dissenters merit professional condemnation and prosecution to shame or compel them into silence.

Bradford's article led to this notable response from the National Security Law Journal, which published Bradford's article this spring. From the response:

Moving forward, the current Editorial Board is committed to generating legitimate scholarly debate, representing all points of view, in the area of national security law. However, we have learned from this experience, and we recognize the responsibility that attends our publication decisions. The process of selecting articles is one our Editorial Board takes very seriously, and we are re-examining our selection process to ensure that we publish high quality scholarly articles.

I haven't seen many retractions like this. But I wouldn't be surprised to see one forthcoming from the University of Melbourne's Media and Arts Law Review, which recently published this abomination on arbitration, trial by combat, and Game of Thrones.

Obama Teams Up With Zombies, Torts Ensue

Geoffrey Rapp has the scoop over at PrawfsBlawg.

"A Proposed Ban on the Sale To and Possession of Caloric Sweetened Beverages by Minors in Public"

That's the title of this article by James G. Hodge Jr., Leila Barraza, Susan Russo, Kellie Nelson, and Greg Measer. Here is the abstract:

Obesity is the definitive epidemic of the modern era in the United States. Its well-documented public health impacts, especially related to children and adolescents, are horrific. Nearly one-third of American minors are overweight; over 50% of them are obese. Already, these kids suffer from multiple adverse physical and mental health conditions. Sadly, absent serious communal and individual interventions, their lives may be cut short compared to their own parents’ life expectancy. While recent surveillance suggests childhood obesity may be trending down slightly in some populations, public health experts remain concerned about the threat obesity poses to the health of America’s youth.

This abstract sounds uncontroversial, and doesn't do justice to the article's attention-grabbing title. So here is a selection from the introduction that more accurately reflects the paper's content:

In the sections below, we take apart and analyze the legal and policy issues underlying a proposed ban on the sale to and possession of CSBs by minors in all public places. To the extent our proposed ban is legally viable, buttressed by available scientific evidence on the harms related to minors’ consumption of CSBs, closely tied to reducing gains in childhood obesity, and already in place in select school districts, it reflects the future of public health policy within and across states.

Some thoughts:

First, the article admits that current policies to reduce the consumption of sugary drinks by children are not succeeding. One reason for the lack of success is that "public opinion" stalls the progress of reform -- which presumably means that people tend to resist passage of restrictions on sugary drinks. The article claims that a full ban on sweetened drinks will succeed where these other restrictions have failed. But it is unclear how a complete ban would overcome the same obstacle of public opinion, especially if public opinion is enough of a barrier to frustrate less-exhaustive bans. Accordingly, it is unclear how this complete ban "reflects the future" of public health policy.

Second, on page 112, the authors state that their ban would not apply to fruit drinks to which no sugar has been added. But administering this ban would be quite difficult, since even single brands of fruit juice may contain varieties in which no sugar is added, and varieties with added sugar. Moreover, those varieties with added sugar may not be obvious -- since it has been my experience that only the varieties without added sugar have labels proclaiming the lack of such sugar. Customers who are under 18 would need to differentiate between these different varieties of drinks, and this same differentiation would need to be carried out by the store's cashiers. The breadth of the authors' definition therefore threatens to create a great deal of confusion for both customers and store employees.

Third, on that same page, the authors state that their definition of "caloric sweetened beverages" applies to milkshakes. This shocks the conscience.

Fourth, the ban would only apply to beverages that are sweetened with "caloric" sweeteners. This would exempt diet sodas from the ban. It is therefore difficult to see how a ban on both the purchase and public possession of these beverages could be enforced. Say a store has a soda fountain that is out of the immediate sight of the store clerk. A mischievous minor could claim that the drink he is purchasing is a diet soda, when in fact it is a regular soda. How is the clerk to verify that the minor is telling the truth?

And say that a police officer spies a group of youths outside a local gas station sipping on beverages that appear to be soda. The authors of this paper propose a ban that would apply to the possession of sugary drinks by minors in public. But how is the officer to determine whether the minors' drinks are regular or diet sodas? There must be some way for the authorities to enforce this new law -- perhaps the authors are suggesting that officers taste young people's beverages. Instead of "stop and frisk," perhaps officers will "stop and sip" minors' beverages in an effort to determine whether their drinks are calorie-free, or carbonated contraband.

The authors are correct to point out the problems caused by childhood obesity. And they are correct to claim that an outright ban on sugary drinks would probably be within state governments' powers. But despite their promise to explain every component of the ban, these six coauthors are unable or unwilling to confront the very apparent objections that this ban would be politically unfeasible and unenforceable.

Childhood obesity is a problem. A complete ban on the sale and possession of sugary beverages is a radical solution. Defending the feasibility of this solution requires more than three full pages of text.

Lawfare Podcast on the Law of War . . . Against Zombies

I highly recommend the most recent Lawfare Podcast which is entitled, "Bone-Crushing Zombie Action."




Shane Harris moderates the podcast in which Benjamin Wittes, Robert Chesney, and Jennifer Daskal discuss issues that would arise in the event of a military conflict between the United States and zombies.

The panelists discuss numerous issues, including whether the President would have the authority to order military force against zombies, whether zombies can truly considered to be engaging in "armed" conflict against the united states, and whether military action would potentially violate the zombies' due process rights or international laws. Important considerations throughout the discussion include whether the zombies are human or not and whether non-lethal actions against zombies are feasible.

My favorite line in the podcast is from Benjamin Wittes. A portion of the podcast addresses the issue of how much government surveillance should be permitted in light of the zombie threat. Wittes points out that privacy is an important consideration, but that "I prefer to be not eaten on camera than to be lunch in private." There was also some pretty good discussion about the case, In re Neagle.

If you are looking for both laughs and some good insight into an alternate perspective on laws of war, I highly recommend that you listen to the whole thing.

July 2014: Bar Exam Apocalypse - Day 1

Above the Law reports that the bar exam software, ExamSoft is crashing like crazy right now as people across the country try to upload their exam answers. Their Twitter feed is currently filled with dozens of messages assuring test-takers that they are working on fixing up their system, and upload deadlines are being extended an an expanding number of states.

I managed to eventually upload the exam, but it took quite a while, and ExamSoft's upload page on its website seemed to remain inaccessible.

Meanwhile, across campus, a 30 foot geyser of water sprang into being, flooding parts of campus. The AP reports:

Firefighters, some using inflatable boats, have saved at least five people who were stranded in the underground parking structures.

And from Jeong Park of the Daily Bruin:

looking up at the flood. pic.twitter.com/krCAINLbj0
— Jeong Park (@JeongParkDB) July 29, 2014

I would say the end is near, but there are still two days to go.

Noll on Weaponizing Neurotechnology

From Lawrence Solum's Legal Theory Blog, I learned about a forthcoming article in the London Review of International Law by Gregor Noll entitled, Weaponising Neurotechnology: International Humanitarian Law and the Loss of Language.

Here is the rather short abstract:

Are operators of weapon systems which draw on neuroscience, or their commanders capable of applying [International Humanitarian Law] IHL? Only at the price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place. To be meaningful, this review system would need to take the metaphysical foundations of neuroweapons into account.

A bit of a longer summary can be found in the paper's introduction:

This question, formulated in Section C and underlying the remainder of the text, is whether operators of weapons systems drawing on neuroscience, or their commanders, are capable of applying IHL. Section C first explains how rapid processing is traded off against consciousness, and why this might be a problem for IHL. Second, it shows that some scholars, whether from law or from other disciplines, react rather optimistically to the promises of neuroscience. Third, I try to take that optimism to its extreme by sketching the development of an IHL software that could be integrated into future weapons systems, automatising judgements on whether a certain conduct is in conformity with IHL norms or not. This enables me to ask what would be lost if we were to use such a machine. Section D answers this question from a micro-perspective, focusing on the cognitive unity of the human being. It draws on the critique of neuroscience as a degenerate form of Cartesianism that has been formulated within analytical philosophy. Section E is devoted to the loss of language, which leads me to consider the work of the German philosopher Martin Heidegger. In the concluding Section F, I suggest that the ‘nature’ of man as reflected by neuroscience risks to undermine the ability to apply IHL in the use of neuroweapons.

And there are some predictions about the future of warfare that are both fascinating and frightening to think about:

Arms development in general follows a temporal logic of surprise: being first with the latest. My main example of neuroscientific applications in the military domain is very literally about acceleration. In a great number of battlefield situations, the human brain is actually faster than a computer when it comes to perceiving threats, yet a computer is faster than a human being in calculating countermeasures. Obviously, those militaries combining the two – human perception and machine calculation – will gain an accumulated temporal advantage over those who do not. As I will illustrate in what follows, time competes with conscious decision-taking. 

. . .

I believe that neuroweapons are the logical sequel to UAVs, and the debate on the ‘autonomy’ of the latter prepares the ground for the acceptance of neurotechnology in the development of weapons. While currently one operator is needed to control a single UAV, developments take place that will allow a single operator to control a swarm of UAV in the future. Consequently, there will be a strong case for neuroscientific enhancement of the cognitive capabilities of that operator. Today, all the talk is about drones, while we should be talking about the neurotechnology that will follow in the wake of their deployment.

This paper contributes to the broader scholarly discussion over autonomous military robots and the ethical questions they raise. Noll seems skeptical about whether international humanitarian law could govern neurotechnological weaponry since this may come at the "price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place." But as other commentators like Kenneth Anderson and Matthew Waxman argue, the development of autonomous weapons systems is inevitable and the application of legal and ethical rules to these systems should accompany that development as it happens.

The development of autonomous military technology and technology that is connected on a fundamental level to the brain functions of human operators pose interesting legal and ethical questions. While some of this technology may seem fanciful now, I think that it may be a real possibility down the road, and these difficult questions may eventually be unavoidable.

Batman v. Superman: My Thoughts on Potential Cases

Linda Holmes of NPR has an fun article about the upcoming sequel to Man of Steel. The title of the sequel will be Batman v Superman: Dawn of Justice. Holmes notes that the "v" in the title is typically used in the titles of court cases, pointing out that the title is not going to be "vs." or "versus." Accordingly, Holmes reaches the hopeful conclusion that Batman v Superman will be a legal drama, rather than a typical superhero movie.

Holmes provides a few examples of what the plot of the movie may be. The first is:

Batman sues Superman over an incident in which Superman accidentally picks up Batman's cape at the dry cleaner's, which leads to the revelation that Superman only sees black and white, which renders his colorful costume very ironic. Batman v Superman!

As somebody who has just graduated from law school, and who has seen Man of Steel, I join in Holmes's hope that Batman v Superman will be a legal drama rather than a repeat of its loud, humorless, two-dimensional, and destruction-filled predecessor. I thought that I would throw out some of my own bar-review-inspired ideas for the plot of the sequel.

California Bill Seeks to Oppose NSA Surveillance

Reuters reports:

The federal government would need a warrant from a judge if it wants the cooperation of California officials in searching residents' cellphone and computer records, under a bill making its way through the state legislature.

The bill, which passed the state Senate with just one opposing vote on Monday, was introduced in the wake of information leaked by former National Security Agency contractor Edward Snowden showing massive internal surveillance of U.S. citizens by the NSA.

The bill is SB 828, and the text of the bill is available here. It would add a section to the California Government code that would read:

The state shall not provide material support, participation, or assistance to any federal agency attempting the illegal and unconstitutional collection of electronic data or metadata, without consent, of any person not based on a valid warrant that particularly describes the person, place, and thing to be searched or seized, seized or a court order, or in accordance with judicially recognized exceptions to warrant requirements. 

That is the text that appears on the legislature's website, my understanding is that the bill would appear without the struck-through "seized" and with the italic words included as a normal part of the text, but I thought I should include the full text as it appears on the government's website.

I think that the bill will be ineffective, however, for two reasons.

Forget Cruel and Unusual Punishment, Waterboarding Violates the Establishment Clause...

...at least if Sarah Palin is in charge of things. The Hill reports on a speech Palin gave before the National Rifle Association annual meeting on Saturday. From The Hill:

“They obviously have information on plots to carry out Jihad,” she said at the National Rifle Association (NRA) annual meeting on Saturday evening, referring to prisoners. "Oh, but you can’t offend them, can’t make them feel uncomfortable, not even a smidgen. Well, if I were in charge, they would know that waterboarding is how we baptize terrorists.”

There's a video of it too!





Palin gets to the quote above at around the 6:45 mark, in case you don't have the time to watch the full video.

The First Amendment prohibits, among other things, Congress from making a law "respecting an establishment of religion." I imagine that forced baptism of prisoners would run afoul of this constitutional protection.

UPDATE

The American Conservative criticizes Palin's remarks, calling her statement "sacrilegious."

Reporting on the Snowden Leaks: The Tension Between Hype and Integrity

DW has published an interview with the journalist, Holger Stark, a correspondent for Der Spiegel. I was struck by one particular question and answer in that interview:

You have already published six feature pieces on the NSA scandal. Now you have written the book "The NSA Complex" with your colleague Marcel Rosenbach. Are we slowly starting to get the full picture of organized mass surveillance? 

The NSA systematically taps fiber optic cables - the main arteries of Internet traffic conveying the largest streams of data. It engages some American companies as collaborators and cooperates with partner intelligence agencies abroad, including Germany's Federal Intelligence Service [also known by its German acronym, BND]. This system enables control of nearly the whole stream of relevant data and then processing it with sophisticated intelligence analysis programs to see what is important. 

I think we have grasped this principle, but the material is so extensive that we will still be seeing interesting and partly surprising and shocking reports about it over many months.

One of the more persistent lines of criticism that I have seen of Edward Snowden's release of NSA documents and the press's treatment of this information is that the information is presented to the public in an overly dramatic and potentially misleading fashion. While Snowden has released numerous documents to the media, news outlets have discretion when it comes to deciding what to publish.

While this discretion may be helpful to ensure that complicated details are released in a coherent and interesting manner, there is a point where selective or overly dramatic release of information overshadows the full extent of the story. Stark's foreshadowing of "surprising and shocking" future reports seems to step into overly dramatic territory.

I have not adopted a strong, personal opinion on NSA surveillance, but I imagine that I would be aggravated by Stark's answer no matter what side I took. If I were a supporter of government surveillance practices, I would urge timely release of the information (assuming it will inevitably be released at some point) so that I could defend or explain the government's tactics. If I were a critic, I'd want to know about what the government is doing now, rather than later -- since some of my activities might fall under the scope of surveillance programs that have yet to be disclosed.

Admittedly, it takes time to sort through information and decide what stories are worth presenting. But Stark's answer is unsettling because it sounds less like a claim that he needs time to work on his stories and more like a teaser.

"Supreme Court Passes on NSA Bulk Phone Surveillance Case"

That's the title of this article at Ars Technica. It begins:

The Supreme Court declined Monday to resolve the constitutionality of the National Security Agency's bulk telephone metadata surveillance program, leaving intact what a lower-court judge described as an "almost-Orwellian" surveillance effort in which the metadata from every phone call to and from the United States is catalogued by US spies. 

The move by the justices comes as the Obama administration and Congress consider dramatically revamping the spy program disclosed in June by NSA whistleblower Edward Snowden.

The case that this article discusses is Klayman v. Obama, where the District Court for the District of Columbia held that section 215 of the PATRIOT Act, which authorizes broad collection of phone dialing information, is likely unconstitutional. I discuss that decision at more length here.

The subtitle to the Ars Technica article is that the case will "likely" end up in the Supreme Court, but the text of the article focuses more on the legislative situation:

The high court's inaction Monday means the future of the phone surveillance program will most likely play itself out in the political theater before the judicial arena. Section 215 of the Patriot Act, the stated provision allowing the bulk collection, expires June 1, 2015. 

There are some 30 different legislative packages in Congress on the topic. And Obama said he wants to overhaul the surveillance process altogether by removing the metadata from the possession of the nation's spooks.

As I discuss here, I think that Congress is more likely to deal with section 215 than the courts. And Congress's ability to specifically tailor reforms on a wide-ranging basis means that it may be more effective at reforming the law than the courts.

Is Government Release of Confidential Program Information "Propaganda" or "Damage Control?"

At The Intercept, Glenn Greenwald has an article where he addresses the NSA's release of classified information about its own programs. Greenwald notes this article in the LA Times, which begins:

In nearly nine years as head of the nation's largest intelligence agency, Gen. Keith Alexander presided over a vast expansion of digital spying, acquiring information in a volume his predecessors would have found unimaginable.

In Iraq, for example, the National Security Agency went from intercepting only about half of enemy signals and taking hours to process them to being able to collect, sort and make available every Iraqi email, text message and phone-location signal in real time, said John "Chris" Inglis, who recently retired as the NSA's top civilian.

The overhaul, which Alexander ordered shortly after taking leadership of the agency in August 2005, enabled U.S. ground commanders to find out when an insurgent leader had turned on his cellphone, where he was and whom he was calling.

Greenwald quotes this portion of the article, and highlights the second paragraph, noting that this seems to be the first anybody has heard of this program. Greenwald is, to put it lightly, critical:

[I]n this case, the NSA’s “most carefully guarded secrets” were spilled thanks to Chris Inglis and the paper’s own Ken Dilanian. But because the purpose was to serve the NSA’s interests and to propagandize the public, none of the people who pretend to object to leaks–when they shine light on the bad acts of the most powerful officials–will utter a peep of protest. That’s because, as always, secrecy designations and condemnations of leaks are about shielding those officials from scrutiny and embarrassment, not any legitimate considerations of national security or any of the other ostensible purposes.

I blogged previously about the struggle to control the narrative on government surveillance. There, I highlighted that the government is in a very difficult position -- Edward Snowden has taken an undetermined, massive amount of classified information, and the government does not know what will be leaked to the press and when these leaks will be disclosed. Critics of media coverage of this information accuse journalists like Greenwald of strategically releasing this information in misleading ways in order to draw attention to the story. But if the government tries to control the narrative by releasing information about its own programs, commentators like Greenwald point out that this seems to create tension with the government's claims that the secrecy of this information is necessary for these programs to be effective and to save lives.

In the case of the Iraq program discussed in the LA Times, I think that Greenwald's criticism may be a little misplaced. The program that Inglis mentioned in that article seems to have been related to US war efforts in the country -- efforts that have since ceased. So the government's disclosure of that program would not seem to undermine information-collecting activities or endanger any lives.

But Greenwald's critique here points out an additional obstacle to any attempt by the government to control the narrative regarding mass surveillance programs. Not only is the government in the dark over what information Snowden has and when the media will release this information, any attempt by the government to release the information under its own framework will appear to conflict with the government's claims that the secrecy of these programs is necessary to protect lives and maintain the effectiveness of the NSA's information-collecting tools. 

The government may respond that in certain cases, the benefits of releasing information about a classified program may outweigh the costs of that program becoming public knowledge. In some situations, the government may think that the information will be inevitably released by media outlets based on leaked information. In these scenarios, the government's own release of the information would only reveal information that would likely be revealed by the media in the near future. Additionally, in some situations (like, possibly,  the Iraq phone surveillance program), the government may no longer have any use for the program, and disclosing it would not remove any meaningful surveillance options from the government's toolbox. Under these circumstances, the government's release of information may be an effective damage control strategy, since the government can present the program in a manner that highlights its effectiveness, its limits, or other features that may make the program seem more palatable to the public.

Whatever the case may be, Greenwald's article highlights the difficulty for the government when it comes to controlling the narrative over its classified programs. Not only is the government in the dark over when the media will release this information, if the government chooses to release the information itself, it risks undermining its claims that classification is necessary for the programs to remain effective and save lives. And critics may fire right back by labeling the government's release as "propaganda."

"Obama to Call for End to N.S.A.’s Bulk Data Collection"

That is the title of an article in today's New York Times. It begins:

The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials. 

Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.

This move is relevant to courts' Fourth Amendment jurisprudence, since two federal courts have reached contradictory rulings on the constitutionality of this program. My post on the decision of the District Court for the District of Columbia ruling that the program is likely unconstitutional is here, and my post on the Southern District of New York's decision that held the program constitutional is here.

If the law that will be proposed ends the widespread collection of telephonic metadata, it may very well render moot the existing challenges to the law. Those hoping for stronger Fourth Amendment protections against government surveillance may be disappointed as a result -- since existing Fourth Amendment law arguably permits the collection of phone-dialing information from telephone companies under Smith v. Maryland. Commentators, and the District Court for the District of Columbia, have argued that this is an outdated view of the Fourth Amendment, since broad surveillance programs may technically comport with Fourth Amendment precedent, but result in the collection of a great deal of personal information. If the challenged law is changed, and if the challenges to the law become moot, then the Fourth Amendment question will remain unanswered.

There are those who would likely argue that this is a good thing from a constitutional law perspective, since courts may be ill-suited to make Fourth Amendment decisions based on rapidly developing technology. The legislature may be better at drafting laws tailored to address wide-ranging surveillance programs without stretching the Fourth Amendment too far.

All of this depends on how far-ranging the White House's proposed change to the surveillance program will be, and whether this proposed change gains enough support to become law. I still have a few questions about what a "new kind of court order" means, when it comes to the government requesting calling records for specific individuals. There is some indication of what this is in another part of the article:

In recent days, attention in Congress has shifted to legislation developed by leaders of the House Intelligence Committee. That bill, according to people familiar with a draft proposal, would have the court issue an overarching order authorizing the program, but allow the N.S.A. to issue subpoenas for specific phone records without prior judicial approval.

The Obama administration proposal, by contrast, would retain a judicial role in determining whether the standard of suspicion was met for a particular phone number before the N.S.A. could obtain associated records.

It is still unclear what kind of role the judiciary will play in approving requests for phone number information, and what the standard of suspicion will be in evaluating these requests. But requiring judicial approval would almost certainly mark a significant reduction in information the government directly collects.

The specifics of this plan should be clearer on Friday, which is the deadline for the Justice Department to release their plan for the collection of metadata, and which is when the Foreign Intelligence Surveillance Court's most recent order authorizing the program will expire.

UCLA Moot Court Program Hosts Cybercrime Competition and Symposium: "Edward Snowden: Patriot or Traitor?"

One of the many hats that I wear at UCLA Law is that of being a problem developer for the UCLA Cybercrime Moot Court Competition. The competition took place this previous weekend, and twelve teams from nine schools competed. The University of Michigan came out on top, and UCLA was the runner-up. I had the opportunity to keep time for several rounds, and I thought that the competitors did an excellent job dealing with the problem (which consisted of a Computer Fraud and Abuse Act issue based closely on the upcoming United States v. Aurenheimer case, and an invented Fourth Amendment issue concerning police searches of unsecured wireless networks).

This year marked the first time that the UCLA Moot Court program hosted a symposium in conjunction with the tournament. The topic of the symposium was Edward Snowden: Patriot or Traitor? Five panelists debated this question. Stewart Baker of Steptoe & Johnson and Judge James Carr, a federal judge from the Northern District of Ohio (and former Chief Judge of the Foreign Intelligence Surveillance Court) argued Snowden was a traitor (although Baker made it immediately apparent that he was more comfortable with the claim that Snowden was a non-patriot, but not necessarily a traitor). Snowden's attorney, Jesslyn Radack, and Trevor Timm, the founder of the Freedom of the Press Foundation argued that Snowden was a patriot. And the Snowden family's attorney, Bruce Fein, argued that Snowden was neither a patriot nor a traitor.

A recording of the full debate is available here.

New Snowden Documents on NSA Use of Botnets

The Intercept reports:

Top-secret documents reveal that the National Security Agency is dramatically expanding its ability to covertly hack into computers on a mass scale by using automated systems that reduce the level of human oversight in the process. 

The classified files – provided previously by NSA whistleblower Edward Snowden – contain new details about groundbreaking surveillance technology the agency has developed to infect potentially millions of computers worldwide with malware “implants.” The clandestine initiative enables the NSA to break into targeted computers and to siphon out data from foreign Internet and phone networks. 

. . . 

In some cases the NSA has masqueraded as a fake Facebook server, using the social media site as a launching pad to infect a target’s computer and exfiltrate files from a hard drive. In others, it has sent out spam emails laced with the malware, which can be tailored to covertly record audio from a computer’s microphone and take snapshots with its webcam. The hacking systems have also enabled the NSA to launch cyberattacks by corrupting and disrupting file downloads or denying access to websites. 

The implants being deployed were once reserved for a few hundred hard-to-reach targets, whose communications could not be monitored through traditional wiretaps. But the documents analyzed by The Intercept show how the NSA has aggressively accelerated its hacking initiatives in the past decade by computerizing some processes previously handled by humans. The automated system – codenamed TURBINE – is designed to “allow the current implant network to scale to large size (millions of implants) by creating a system that does automated control implants by groups instead of individually.”

Wired also highlights that the NSA has been hijacking private botnets as part of its overall scheme. The NSA document describing that program is available here, but, as Wired admits, it is pretty short on the details and the purpose of the program. What the document does indicate is that the NSA has successfully taken over the command-and-control functions of several botnets and effectively controls 140,000 computers as a result of this approach.

New York Times Calls for Constraints on Big Data Use and Collection

From the New York Times Editorial Board:

Last month, Mr. Obama tapped his special adviser, John Podesta, to take another look at privacy and big data (the millions of records that businesses are collecting and using to increase sales and improve operations) and produce a fresh report in 90 days. 

With the Internet evolving fast, few consumers can adequately guard against losing control of their personal data. A recent report by the majority staff of the Senate Commerce Committee, for example, found that companies known as data brokers have assembled extensive dossiers on millions of individuals and families. Those files include information like web browsing histories, what consumers bought in physical and online stores, and what medical conditions people have. 

. . . 

The president and the public need from Mr. Podesta and his team not only a thorough description of how businesses are collecting private data but also specific legislative proposals to give consumers more control of that information.

While the editorial's focus is on private collection of data, reforms in the private sector have a corresponding impact on the constitutionality of government data collection. The government argues that widespread data collection from private entities does not violate the Fourth Amendment because individual users voluntarily submit their information to these entities. This is the Third Party Doctrine, and it holds some weight in debates over the constitutionality of government surveillance (See ACLU v. Clapper, holding that the third party doctrine permits mass collection of telephonic metadata; but see Klayman v. Obama, holding the opposite). For more background and discussion on these cases and the third party doctrine, see my posts here and here.

If the courts end up holding that the third party doctrine permits government collection of people's online profiles, the impact on user privacy may be mitigated by laws that lessen the scope of information that companies are permitted to collect. This report is something that people should look out for, given its potentially broad implications for the worlds of both private and governmental data collection.

The Implications of the Vague Revelations of Eavesdropping on Attorney Communications

The New York Times reports:

A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

The BBC reports on the story here. The NSA "provided clear guidance," says the Times, but nothing more is specified. Orin Kerr notes that this story does not appear to implicate the NSA in any notably invasive behavior:

As I understand it, the Times story is based on a short entry in an NSA internal bulletin celebrating the liaison office’s accomplishment. It reports that the liaison helped clear up a legal issue, and that it all ended well, as the Australians ended up giving useful intel to the U.S. But because it’s just an internal bulletin, it doesn’t tell us what we want to know: What advice was provided, and whether the intel was related to the legal issue. Without that information, it’s hard to know if there’s a significant story here.

The story is still interesting, given the implications for attorneys who are dealing with foreign clients. The Times reports:

Andrew M. Perlman, a Suffolk University law professor who specializes in legal ethics and technology issues, said the growth of surveillance was troubling for lawyers. He helped create the bar association’s ethics code revisions that require lawyers to try to avoid being overheard by eavesdroppers. 

“You run out of options very quickly to communicate with someone overseas,” he said. “Given the difficulty of finding anything that is 100 percent secure, lawyers are in a difficult spot to ensure that all of the information remains in confidence.”

While the story does not reveal very much about the NSA's role in this chain of events, or the particular information that was being monitored, it is a good reminder that attorneys who are working with foreign clients should be aware that their conversations may not be completely private.

Christopher Soghoian notes that there is something notable in this story, albeit, something that is buried and not necessarily related to invasive NSA behavior:

Last para of NYT story is nuts: Australian intel agency "obtained" crypto keys (Ki) for 1.8 mil Indonesian SIM cards. http://t.co/a2MHr4CXaD
— Christopher Soghoian (@csoghoian) February 16, 2014

Here are the last two paragraphs from the Times' story:

The Americans and the Australians secretly share broad access to the Indonesian telecommunications system, the documents show. The N.S.A. has given the Australians access to bulk call data from Indosat, an Indonesian telecommunications provider, according to a 2012 agency document. That includes data on Indonesian government officials in various ministries, the document states. 

The Australians have obtained nearly 1.8 million encrypted master keys, which are used to protect private communications, from the Telkomsel mobile telephone network in Indonesia, and developed a way to decrypt almost all of them, according to a 2013 N.S.A. document.

Soghoian is correct to point out that these final paragraphs indicate that there is a lot going on behind the scenes that this story does not explicitly illustrate. It will be interesting to see if more information is released regarding how the NSA obtained access to the data from Indosat and how the Australians obtained the keys to the Telkomsel network.

The Standing Implications of the NSA's Decrease in Metadata Collection

At Lawfare, Chris Donesa posts about a recent leak that indicates the NSA is only collecting 20 percent or 20-30 percent of U.S. telephonic metadata under the Section 215 program. For background on that program -- which involves the collection of phone numbers dialed and the duration of these calls -- see here. The stories reporting the leak appear here and here (behind a paywall).

Donesa criticizes the NSA's apparent decision to reduce the amount of information it collects:

If accurate, this startling disclosure should be troubling to all sides of the debate over metadata collection. Advocates should be concerned that the collection is now so limited as to jeopardize the program’s utility in locating potential terrorist links to the United States, and that the Department of Justice, DNI, and NSA have allowed the state of affairs to decline so perilously. Critics now have substantial reason to question and even litigate the rationale for continuing the program, and industry should have heightened concern about the potential for expanded compelled collection by the government.

. . .

[I]f calming critics is the goal, the leak fails miserably. Disclosing that the scope is now so narrow fundamentally undermines the justification of collecting “all the dots.” In the oversimplified realm of the public debate, that becomes an easy and damning talking point to question whether the program even serves its purpose going forward. The disclosure will also inevitably fuel even more litigation, including questions about whether this fact should have been affirmatively made known to judges and others.

The release of this information may be more beneficial to the administration than Donesa argues. On its face, the leak gives the administration the ability to claim that it is not pervasively monitoring all phone records, which may make the program more politically acceptable.

But an even more significant consequence of the leak is the impact that this information may have on future plaintiffs' standing to sue the government over this program. The revelation that only 20-30 percent of telephonic metadata is collected gives the government a strong argument that plaintiffs lack standing to sue for rights violations that arise from this program.

In Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), the Supreme Court rejected a challenge to section 1881a of the Foreign Intelligence Surveillance Act which authorized the surveillance of communications of people outside of the United States. The plaintiffs in that lawsuit were people whose work required them to communicate with people outside the United States who were likely to be monitored under this act. The Court held that the plaintiffs did not have standing to challenge the surveillance program because they could not conclude that any injury resulting from surveillance was "certainly impending," since the plaintiffs could not make enough of a showing that they would be monitored, or that any monitoring would occur under 1881a.

Moving ahead to a more recent case, in Klayman v. Obama, the District Court for the District of Columbia held that a plaintiff's claim that Section 215's authorization of bulk metadata collection likely violated the Fourth Amendment. While I analyze the Fourth Amendment holding of that case in more detail here, the court distinguished Klayman from Clapper by noting that Snowden's leaks indicated that all telephonic metadata for Verizon was being collected by the NSA. In light of this post-Clapper information about the supposedly all-encompassing surveillance program, the court held that the plaintiff's had made enough of a showing that their rights had been violated and would continue to be violated.

The NSA's recent leak may undermine the Klayman court's standing conclusion, since the NSA's collection of metadata may not be as all-encompassing as previously thought. And this may spell trouble for plaintiffs seeking to enjoin the enforcement of Section 215. Where these plaintiffs may previously have had a strong argument that their information would almost certainly collected, it now seems that the probability of this collection is in the 20-30 percent range. And this might not be enough to prove that the plaintiffs face "certainly impending" harm from the program. As a result, plaintiffs suing to enjoin enforcement of Section 215 may run into the same lack-of-standing barrier as the plaintiffs in Clapper.

While the NSA's recent leak may undermine the administration's justifications of its bulk metadata collection program to some extent, the other political and legal impacts of this leak may outweigh this negative consequence. It will be interesting to see if this revelation has any influence on courts' jurisdictional decisions in future cases.

A Potential Drone Strike on an American Citizen and Related Articles by Gonzales, Vladek, and Opderbek

The New York Times reports:

The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.

It is the first time American officials have actively discussed killing an American citizen overseas since President Obama imposed new restrictionson drone operations last May. 

. . . 

The first time the Obama administration carried out a targeted killing operation against an American citizen was in September 2011, when a C.I.A. drone killed the radical preacher Anwar al-Awlaki in Yemen; officials said little publicly about the operation. The White House acknowledged last year that four American citizens had been killed in drone strikes during Mr. Obama’s time in office. According to the White House, only Mr. Awlaki had been intentionally targeted.

As the Times notes, the Obama administration is moving drone operations to the Pentagon to make the process more transparent. But there is a limit to the amount of transparency that the government can practically provide, and the practice of targeting American citizens remains highly controversial.

Apple's Equivocal National Security Order Press Release

Via the BBC, I learned that Apple is now reporting national security requests it receives for account information and the number of accounts affected. In a press release, Apple says:

Apple has been working closely with the White House, the U.S. Attorney General, congressional leaders, and the Department of Justice to advocate for greater transparency with regard to the national security orders we receive. We believe strongly that our customers have the right to understand how their personal information is being handled, and we are pleased the government has developed new rules that allow us to more accurately report law enforcement orders and national security orders in the U.S.

That sounds pretty good. And this very same press release reveals this crucial information: noting that Apple has received between zero and 249 National Security Orders and that these orders have affected between zero and 249 accounts.

Thank goodness. I had been worried that under the government's secret surveillance programs, we wouldn't be able to find out the extent of privacy intrusions. It's good that companies like Apple have these concerns in mind.

(Thanks go to Max Bryk for directing me to the portion of the BBC article that mentioned Apple's statement)