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Int’l Human Rights and Domestic Surveillance: What the HRW/ACLU report reveals about officials’ views

This morning, Human Rights Watch and the ACLU released a joint report on the chilling effects of domestic surveillance. The report examines, in particular, the impact of surveillance on two groups: (1) journalists (e.g., on their ability to protect sources and acquire information including unclassified matters); and (2) lawyers (e.g., on their ability to maintain the confidentiality of client information).…   continue »

Why (Some) Secrecy is Good for Civil Liberties

A few weeks back, Ben Wittes wrote a controversial post over at Lawfare on the latest Snowden disclosures, arguing that, “If you’re okay with dumping in the lap of a journalist 160,000 of the most personal conversations a signals intelligence agency can collect, then stop whining to me about ‘bulk’ or ‘mass’ collection.”  As Ben subsequently clarified, his point was not to criticize Snowden for possibly violating the Privacy Act, but to flag what he perceived as the hypocrisy of various media outlets and privacy and civil liberties groups in not criticizing these disclosures—and in thereby appearing to endorse the view that transparency of secret government programs is an unmitigated good.…   continue »

Guest Post: The PCLOB Report and Eight Questions About Section 702

Note: The views expressed below are my own and do not necessarily represent the views of PCLOB or its other Board members.

On July 2, Professor Jennifer Granick posed the question: “Did PCLOB Answer My Eight Questions About Section 702?” She concludes that her questions went largely unanswered in the Privacy and Civil Liberties Oversight Board’s report (hereinafter, “PCLOB report”) issued earlier that day, on the surveillance program operated under Section 702 of the Foreign Intelligence Surveillance Act.…   continue »

Nine to One, Baby, One in Nine: Surveillance by the Numbers

There’s a great deal of interesting material in this weekend’s big Washington Post story on collection of Internet communications under §702 of the FISA Amendments Act.  But in a way, the single fact that has gotten the most attention—that 90% of §702-acquired communications in a trove provided by Edward Snowden were sent by someone other than the target—is also the least surprising. …   continue »

Guest Post: Does the Intelligence Community Fear Lawyers…or Legal Scrutiny?

[Editor's Note: See Marshall Erwin's response to General Dunlap here.]

In a provocatively entitled essay, Are National Security Lawyers a National Security Threat? Marshall Erwin, a research fellow at the Hoover Institution and former “lead intelligence specialist” at the Congressional Research Service, asks if national security lawyers are a “security threat” because, as he claims, they “distract us from important questions about national security and intelligence community efficacy,” and “this hurts America’s national security bottom line.”

Mr.…   continue »

Pleasant Surprises – and One Disappointment – in the Supreme Court’s Cell Phone Decision

As commentators quickly recognized, there’s just cause for celebration in this week’s Supreme Court decision in Riley v. California, requiring a warrant to search an arrestee’s cell phone. The result was by no means a foregone conclusion because the Court had long held that police may search an arrestee and everything in his possession without a warrant and without any reasonable basis for suspicion.…   continue »