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Category Archives: Civil Liberties and Constitutional Rights

NSA Spying Will Begin Winding Down This Week: Justice Department Memo

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Wednesday, May 20, 2015 at 6:11 PM

Dustin Volz of the National Journal has obtained a memo from the Department of Justice circulated among congressional offices today that says the NSA will need to begin taking steps to wind down the bulk telephone metadata collection program authorized under Section 215 of the Patriot Act by Friday, May 22nd. The memo makes clear . . .
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McConnell Introduces 2 Month NSA Extension

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Friday, May 15, 2015 at 4:00 PM

Likely you’ve heard: Senate Majority Leader Mitch McConnell (R-KY) last night introduced a bill that would reauthorize portions of the Patriot Act set to expire on June 1 for two months, giving lawmakers extra time to consider whether to approve the USA Freedom Act, a clean re-authorization of the Patriot Act’s provisions, or some other formulation. . . .
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PCLOB Public Meeting on 12333 Counterterrorism Activities

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Wednesday, May 13, 2015 at 10:10 AM

The proceedings will get underway at 10:15 a.m., at the National Constitution Center in Philadelphia.  Witness testimony and other information can be found here; streaming video is below, too.

“Reasonable Search” or “Reasonable Expectation of Privacy:” A Brief Reply to Orin Kerr on the 2nd Circuit’s Decision

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Sunday, May 10, 2015 at 12:30 PM

Thursday’s 2nd Circuit decision striking down 215 ends with a brief, and unresolved, rumination on the impact explicit congressional authorization might have on a 4th Amendment analysis—if and when such an analysis were actually to take place: [W]hether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality. The . . .
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A Few Thoughts on the Second Circuit’s 215 Decision and Its Importance

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Saturday, May 9, 2015 at 11:11 AM

From day one of the Snowden revelations, we all knew that the legal validity of the 215 program hinged ultimately on the capaciousness of a single word: “relevant.” Even those of us who generally support robust signals intelligence programs also knew immediately that the legal theory underlying this program lay right at the margins, perhaps beyond . . .
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The Increasing State Practice and Opinio Juris on Spying

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Wednesday, May 6, 2015 at 4:30 PM

Ben flagged today that the Germans have been caught out spying on friends and allies. What makes this a story is the way the Germans responded more than a year ago when Snowden’s leaks revealed that the NSA was spying on Angela Merkel: with shock and awe. Stepping back a bit from the substance of NSA’s . . .
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The Full Glare of European Hypocrisy on Surveillance

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Tuesday, May 5, 2015 at 9:57 PM

In case you needed a refresher course on European hypocrisy on surveillance and data privacy, the New York Times today obliges with two stories over which the connoisseur of human folly ought really to pause. The first involves the adoption by France’s lower parliamentary house of a new surveillance law so broad and so lacking in judicial review . . .
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International Law in the U.S. Legal System, 2nd Edition

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Monday, May 4, 2015 at 1:40 PM

Curtis A. Bradley (Duke University Law School professor, leading scholar of US foreign relations law and, not least, Friend of Lawfare) is most recently author of  International Law in the U.S. Legal System, 2nd Edition,  which has just been released in paperback.  The intersection of international law and US law and legal processes, says Bradley, . . .
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Spokeo and National Security/Foreign Relations Law – Especially Zivotofsky

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Friday, May 1, 2015 at 3:02 PM

The Supreme Court recently granted certiorari in Spokeo v. Robins, a Fair Credit Reporting Act case which might appear to have little connection to national security and foreign relations law.  But the case is about standing, in particular Congress’s power to confer standing on private parties who do not suffer an injury-in-fact but have been . . .
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New Surveillance Reform Bill Introduced

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Tuesday, April 28, 2015 at 9:40 PM

Senators Leahy and Lee introduced a new version of the USA Freedom Act today to scale back surveillance authorities, including limiting the use of Section 215 of the USA Patriot Act for bulk collection, plus much, much more. The text of the bill is available here. And on Friday May 1, the Congressional Internet Caucus will host a . . .
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Homeland Security Committee’s Cyber Bill a Missed Opportunity

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Tuesday, April 14, 2015 at 5:15 PM

Today, the House Homeland Security Committee marked up a cybersecurity information sharing bill that promised to be “the best of bunch” in terms of civil liberties protections among the cybersecurity information sharing bills that Congress is currently considering. Unfortunately, the bill misses the mark in a key respect. The problem starts with the fact that . . .
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The Power of Citizenship Bias

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Monday, March 23, 2015 at 3:00 PM

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. . . .
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Stop Spying on Wikipedia Users – Comment on NY Times editorial

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Tuesday, March 10, 2015 at 6:00 PM

The New York Times today has an op-ed by the founder of Wikipedia called Stop Spying on Wikipedia Users. The op-ed asserts that “N.S.A.’s mass surveillance of Internet traffic on American soil — often called “upstream” surveillance — violates the Fourth Amendment, which protects the right to privacy, as well as the First Amendment, which . . .
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The Iran Letter and the Logan Act

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Tuesday, March 10, 2015 at 10:32 AM

  Please like our Facebook page and follow Lawfare on Twitter: Follow @lawfareblog The second-day story about the letter by 47 Republican Senators to the government of Iran that Jack’s discussed here and here has shifted to whether these Senators have violated the Logan Act–as Peter Spiro suggested in this post over at Opinio Juris. Before folks . . .
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FREAK: Security Rollback Attack Against SSL

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Friday, March 6, 2015 at 11:00 AM

This week we learned about an attack called “FREAK”—“Factoring Attack on RSA-EXPORT Keys”—that can break the encryption of many websites. Basically, some sites’ implementations of secure sockets layer technology, or “SSL,” contain both strong encryption algorithms and weak encryption algorithms. Connections are supposed to use the strong algorithms, but in many cases an attacker can . . .
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Email Privacy, Overseas Jurisdiction, and the 114th Congress

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Friday, March 6, 2015 at 9:00 AM

Everything old is new again.  Two years ago, I wrote about a bipartisan effort (in which I was and still am participating) to update the Electronic Communications Privacy Act.  That effort, sadly, went nowhere. I am, however, happy to report that progress is being made to revive that effort in the 114th Congress.  This year . . .
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American Privacy and EU Privacy

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Wednesday, March 4, 2015 at 2:33 PM

Of course the US cares about privacy, just as much, if not more, than they do in the EU.  And the data are clear that in the EU, national security and law enforcement surveillance are often subject to less formal judicial control than in America. Many have been making this case for quite some time . . .
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Bruce Schneier’s Important New Book

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Wednesday, March 4, 2015 at 2:18 PM

Bruce has just published Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World, a book that will interest many Lawfare readers.  Data and Goliath is deeply informed and accessibly written analysis of mass surveillance by firms and the government.  Part One is a terrific tutorial on big data and data mining, . . .
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Fishing Expedition

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Friday, February 27, 2015 at 4:00 PM

Do you worry that the NSA, perhaps in a joint program with the U.S. Fish and Wildlife Service, might be considering a “collect-it-all” program to seize and monitor fish, crocodiles, or antelopes for national security purposes?  If so – and I think I may have read something about this on The Intercept – you can . . .
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Senate Commerce Committee Hearing on “Preserving the Multistakeholder Model of Internet Governance”

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Wednesday, February 25, 2015 at 9:55 AM

The Senate panel, led by Chairman John Thune (R-SD), will discuss internet governance matters this morning at 10:00 a.m. A livestream can be found at the Commerce Committee’s website; we’ll post embedded video if it is available. The witnesses (with links to testimony): Mr. Fadi Chehadé CEO, Internet Corporation for Assigned Name and Numbers (ICANN) Ambassador . . .
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