Panelists for the ACLU?“Eyes in the Sky” session, left to right: Marcy Wheeler of Empty Wheel, a free-lance online journalist; Ronald G. DeWaard, attorney at Varnum; and Shelli Weisberg, Legislative Director, ACLU of Michigan.
LEGAL NEWS PHOTO BY CYNTHIA PRIC
by Cynthia Price
Legal News
Opinion about government surveillance of private citizens cuts across political lines, engendering disapproval and even outrage from liberals and conservatives alike.
The American Civil Liberties Union (ACLU) of Michigan’s Western Branch tapped into those widespread concerns by holding a panel discussion, “Eyes in the Sky: New Technology and Your Privacy Rights” at the Urban Institute for Contemporary Arts (UICA) Monday night.
Many of the people in the audience were from the lakeshore, and Mitch Dennison, current president of the board for the ACLU of Michigan Western Branch, comes from Ottawa County himself. He served as emcee for the three highly knowledgeable panelists:
—Grand Rapidian Marcy Wheeler, a journalist who writes for her own blog at emptywheel.com and for online outlets such as the Guardian, Salon, Huffington Post, and The Progressive. She received her Ph.D. from University of Michigan, which is what brought her to this area, and won the 2009 Hillman Award for blog journalism.
—Ronald G. DeWaard, an attorney at Varnum specializing in trials of complex commercial, banking, corporate tax, patent, environmental, labor, and general liability cases for plaintiffs and defendants. He received his degrees from Calvin College and the University of Michigan?Law School, the latter cum laude. He was formerly an Assistant U.S. Attorney in Miami and served as Deputy Chief of the Major Crimes Division of the U.S. Attorney’s Office.
—Shelli Weisberg is the Legislative Director of the ACLU of Michigan. She received her degree from Wayne State University.
Dennison asked Wheeler to comment on the content of information released by whistleblower Edward Snowden, concerning the domestic spying practices of the National Security Agency, or NSA.
NSA technology consultant Snowden, of course, famously gave journalists all manner of documents about NSA surveillance because he felt that the public should know. Not all of the releases have been published, and there may be further revelations to come, but in sum, the NSA and other agencies secretly obtain the phone and email records and other data about U.S. citizens. They are not listening to the phone calls, but that is not the point.
“Not just the NSA but also the FBI are collecting bulk data – and that means your data,” Wheeler said Monday.
She added her fear is that, by reducing encryption on data the agencies want to mine, they leave all data more open to hackers. “This may mean that the NSA is making all of us less secure.”
Wheeler made reference to Section 215 of the 2001 Patriot Act, which according to the ACLU website “allows the FBI to order any person or entity to turn over ‘any tangible things’ ... ‘for an authorized investigation...to protect against international terrorism or clandestine activities;’ section 702 of the Foreign Intelligence Surveillance Act, which covers targeting persons outside the United States for communications collection (and she noted the possibility that U.S. persons may be targeted along the way); and Ronald Reagan’s Executive Order 12333, “United States Intelligence Activities, which is a surveillance provision that operates with no disclosure that extends the powers of intelligence agencies. ACLU has a Freedom of Informa-
tion Act suit to have the government produce 12333 documents.
DeWaard went on to explain the judicial history of the Pen Register thing. “In Katz [v. United States], the Supreme Court found that the content of your telephone conversations, even though they were on lines owned by an intermediary party, had a reasonable expectation of privacy, and law enforcement couldn’t listen in without a warrant. But since then some of the exceptions have overshadowed the rule.” Using Katz, Smith v. Maryland in 1979 established that the installation of pen registers, devices that record solely the numbers called from a given phone, did not violate the “legitimate expectation of privacy.”
This, DeWaard said, eventually opened the door to warrantless collection of metadata, in which not the content but the connections is subject to scrutiny. The scope of technological capability, he pointed out, could hardly have been imagined at that time.
Some but not all technology providers cooperate in providing such metadata.
While DeWaard predicted that there will be private citizen class action suits against governmental spying, he said afterwards that those are likely to wait on the outcome of several pending cases making their way through the appellate system.
First, the rabble-rousing Larry Klayman of Freedom Watch sued the Obama Administration over the illegality of NSA surveillance, and won in DC circuit court. Klayman has said he will ask the U.S. Supreme Court to sidestep the government’s appeal and take the case on itself.
Another concerns the case of Somalian immigrant Basaaly Moalin, who is challenging his conviction on charges of aiding a terrorist organization due to the surveillance tactics used under Sec. 215.
The Electronic Frontier Foundation is suing the government over the collection of other types of data, such as, for example, who is buying guns or who purchases something like acetone, which can be used in creating bombs but also removes nail polish.
Weisberg brought up privacy issues not previously under discussion, such as the collection of DNA samples from prisoners prior to conviction and the use of drones or unmanned aerial vehicles. She said that the ACLU is working with the Michigan State Police on policy for the latter.
All of the panelists expressed deep concern over the ability of private companies like Google and Facebook to gather data, and technology people in the audience cautioned that those companies are capable of ramping up technology tools available for the government.
In December, a task force appointed by the president made dozens of recommendations to the NSA surveillance program.
IT experts present, along with Wheeler, cautioned that better education on technology is critical. For example, one of the fixes many have proposed for the problematic retention of all those data is to erase them after a set period of time. Dennison said that will not work, since nearly all data, barring destruction of the physical device holding it, can be recovered by someone who knows how to do it.
The ACLU of Michigan Western Branch will host its next speaker series event, again at the UICA, on March 10 at 7 p.m. on “Hands Off! Ending The War on Women.”
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