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The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material. In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinion by U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used. Together the permission to search and to keep data longer expanded the NSA’s authority in significant ways without public debate or any specific authority from Congress. The administration’s assurances rely on legalistic definitions of the term “target” that can be at odds with ordinary English usage. The enlarged authority is part of a fundamental shift in the government’s approach to surveillance: collecting first, and protecting Americans’ privacy later.

“The government says, ‘We’re not targeting U.S. persons,’ ” said Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology. “But then they never say, ‘We turn around and deliberately search for Americans’ records in what we took from the wire.’ That, to me, is not so different from targeting Americans at the outset.”

 Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement Historical Documents Dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States Justice Brandeis’s dissenting opinion is one of the more notable dissents in Supreme Court history. He attempted to define a general right of privacy based on the Fourth and Fifth Amendments. Brandeis had long been interested in the problem of privacy in the modern age; years earlier he and his law partner, Samuel Warren, published what many consider the seminal article on the topic (Samuel Warren & Louis D. Brandeis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890)). Brandeis’s opinion in Olmstead attempted to apply to the current era what he said were the principles of the Fourth and Fifth Amendments. Historians often overlook how much his approach draws on the dissenting opinion of Judge Rudkin in the circuit Court, but Brandeis himself acknowledged his debt to Rudkin in the text. The quotation about “the form that evil had theretofore taken” referred to the Supreme Court decision in Weems v. United States, in which Justice Joseph McKenna wrote of the need for the Court to apply the general principles of the Constitution to new problems.

Moreover, “in the application of a constitution, our contemplation cannot be only of what has been but of what may be.” The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed “subversive of all the comforts of society.” Can it be that the Constitution affords no protection against such invasions of individual security? . . .

In Ex parte Jackson, 96 U.S. 727, it was held that a sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below: “True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed, but these are distinctions without a difference.” The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and, although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.

Out of California’s years-long litigation over reducing the population of prisons deemed unconstitutionally overcrowded by the U.S. Supreme Court in 2010, another obstacle to addressing the U.S. epidemic of mass incarceration has emerged: The utility of cheap prison labor. In recent filings, lawyers for the state have resisted Court orders that they expand parole programs, reasoning not that releasing inmates early is logistically impossible or would threaten public safety, but instead that prisons won’t have enough minimum security inmates left to perform inmate jobs. The dispute culminated Friday, when a three-judge federal panel ordered California to expand an early parole program. California now has no choice but to broaden a program known as 2-for-1 credits that gives inmates who meet certain milestones the opportunity to have their sentences reduced. But California’s objections raise troubling questions about whether prison labor creates perverse incentives to keep inmates in prison even when they don’t need to be there.

The debate centers around an expansive state program to have inmates fight wildfires. California is one of several states that employs prison labor to fight wildfires. And it has the largest such program, as the state’s wildfire problem rapidly expands arguably because of climate change. By employing prison inmates who are paid less than $2 per day, the state saves some $1 billion, according to a recent BuzzFeed feature of the practice. California relies upon that labor source, and only certain classes of nonviolent inmates charged with lower level offenses are eligible for the selective program. They must then meet physical and other criteria. In exchange, they get the opportunity for early release, by earning twice as many credits toward early release as inmates in other programs would otherwise earn, known as 2-for-1 credits. In February, the federal court overseeing California’s prison litigation ordered the state to expand this 2-for-1 program to some other rehabilitation programs so that other inmates who exhibit good behavior and perform certain work successfully would also be eligible for even earlier release.

As has been California’s practice in this litigation, California didn’t initially take the order that seriously. It continued to work toward reducing its prison population. In fact, the ballot initiative passed by voters in November to reclassify several nonviolent felonies as misdemeanors will go a long way toward achieving that goal. But it insisted that it didn’t have to do it the way the court wanted it to, because doing so could deplete the state’s source of inmate firefighters. The incentives of this wildfire and other labor programs are seemingly in conflict with the goal of reducing U.S. reliance on mass incarceration. But the federal judges overseeing this litigation were nonetheless sensitive to the state’s need for inmate firefighters. That’s why they ordered the state to offer 2-for-1 credits only to those many inmates who weren’t eligible for the wildfire program. This way, inmates who were eligible would still be incentivized to choose fighting wildfires, while those that weren’t could choose other rehabilitative work programs to reduce their sentence.

Tomosaitis v. URS Inc.

Plaintiff filed suit against his employer (URS) and the DOE, alleging violations of the Energy Reorganization Act (ERA), 42 U.S.C. 5851(b)(4), whistleblower protection provision, and requested a jury trial. The district court partially dismissed the complaint, denied a jury trial, and granted summary judgment against plaintiff. The court held that before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, that respondent must have had notice of, and an opportunity to participate in, the agency action for one year. In this case, plaintiff's claim against DOE failed for lack of administrative exhaustion. The court concluded that the administrative exhaustion was sufficient as to URS E&C. The court affirmed the district court's dismissal of URS Corp. for lack of administrative exhaustion. The court also concluded that, since plaintiff has shown that his protected activity was a "contributing factor" in the adverse employment action he suffered, he has met his burden for establishing a prima facie case of retaliation under the ERA. Further, the evidence created a genuine issue of fact as to whether plaintiff's compensation, terms, conditions, or privileges of employment were affected by his transfer. The court reversed the grant of summary judgment to URS E&C for ERA whistleblower retaliation. Finally, the court held that plaintiff has a constitutional right to a jury trial for his claims seeking money damages against URS E&C and the court reversed the district court's ruling.

LISBON, Portugal (AP) — A Portuguese court has ruled that a former CIA operative convicted of kidnapping an Egyptian cleric as part of an extraordinary renditions program should be turned over to Italy to serve her six-year sentence there, a court official said Friday. The decision to extradite Sabrina De Sousa after her arrest last October was handed down on Tuesday, the president of the court in Lisbon, Luis Vaz das Neves, told The Associated Press. De Sousa, who operated under diplomatic cover in Italy, was among 26 Americans convicted in absentia for the kidnapping of Milan cleric Osama Moustafa Hassan Nasr, known as Abu Omar, in broad daylight from a Milan street on Feb. 17, 2003. Extraordinary renditions were part of the Bush administration's "war on terror" after the Sept. 11, 2001, attacks. The Egyptian cleric's kidnapping, which also implicated Italy's secret services, has proven embarrassing to successive Italian governments. De Sousa, who was born in India and holds both U.S. and Portuguese passports, was initially acquitted due to diplomatic immunity, but was found guilty by Italy's highest court in 2014. She was arrested at Lisbon Airport on a European warrant last year as she was on her way to visit her elderly mother in India with a round-trip ticket.

Authorities seized her passport and set her free while awaiting the court decision on her extradition. Manuel Magalhaes e Silva, De Sousa's Portuguese lawyer, told the AP in an email he was officially informed of the extradition decision Friday and intends to lodge an appeal at the Supreme court. If that fails, he will go to the Constitutional court, he said. De Sousa has argued against extradition to Italy, telling a Portuguese court after her arrest that Italian authorities tried her in absentia and never officially notified her of her conviction, according to Vaz das Neves. All of the Americans were tried in absentia and were represented for most of the proceedings by court-appointed lawyers who had no contact with their clients. Only toward the end of the trial did De Sousa and another defendant, a member of the military, receive clearance to hire their own lawyers. The Lisbon judge ruled that De Sousa should be sent to Italy so she can be notified of the conviction and possibly demand another trial, Vaz das Neves said. The judge also ruled that if De Sousa accepts her prison sentence, she must be allowed to serve it in Portugal if she wishes, which is possible under European legal procedure, according to Vaz das Neves. De Sousa has said that she had been living in Portugal and intended to settle there.

De Sousa has denied in interviews participating in the rendition and has said she wants to hold the CIA accountable. "If she truly arrives in Italy, she could finally choose to say to magistrates what she so far has only said in interviews," said the lead prosecutor in the case, Armando Spataro. De Sousa has requested a pardon from Italy. Earlier this month, in an act of clemency, Italy's president reduced the sentences of two others convicted in the case. President Sergio Mattarella reduced former CIA base chief Robert Seldon Lady's sentence to seven years from nine. Mattarella also wiped out the entire penalty — three years — faced by another American, Betnie Medero. After being kidnapped Nasr was transferred to Egypt where he claimed he was tortured. After he was released from Egyptian custody, Italian authorities in 2005 issued an arrest warrant for him. He was convicted in absentia by an Italian court in 2013 on decade-old terror charges and was sentenced to six years in prison, although he never returned to Italy to serve the sentence.

Laura K. Donohue is a professor at Georgetown University Law Center and director of Georgetown’s Center on National Security and the Law. The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.In 2008, Congress added section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target. A U.S. citizen may not intentionally be targeted.To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.

Four days before a sweeping government surveillance law was set to expire last year, Sen. Dianne Feinstein, the chairman of the chamber’s Intelligence Committee, took to the Senate floor. She touted the law’s value by listing some of the terrorist attacks it had helped thwart, including “a plot to bomb a downtown Chicago bar” that fall. “So I believe the FISA Amendments Act is important,” the California Democrat said before a vote to extend the 2008 law, “and these cases show the program has worked.”Today, however, the government is refusing to say whether that law was used to develop evidence to charge Adel Daoud, a 19-year-old Chicago man accused of the bomb plot.And Daoud’s lawyers said in a motion filed Friday that the reason is simple. The government, they said, wants to avoid a constitutional challenge to the law, which governs a National Security Agency surveillance program that has once again become the focus of national debate over its reach into Americans’ private communications.“Whenever it is good for the government to brag about its success, it speaks loudly and publicly,” lawyers Thomas Durkin and Joshua Herman wrote in their motion. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets.”

Four days before a sweeping government surveillance law was set to expire last year, Sen. Dianne Feinstein, the chairman of the chamber’s Intelligence Committee, took to the Senate floor. She touted the law’s value by listing some of the terrorist attacks it had helped thwart, including “a plot to bomb a downtown Chicago bar” that fall. “So I believe the FISA Amendments Act is important,” the California Democrat said before a vote to extend the 2008 law, “and these cases show the program has worked.”Today, however, the government is refusing to say whether that law was used to develop evidence to charge Adel Daoud, a 19-year-old Chicago man accused of the bomb plot.And Daoud’s lawyers said in a motion filed Friday that the reason is simple. The government, they said, wants to avoid a constitutional challenge to the law, which governs a National Security Agency surveillance program that has once again become the focus of national debate over its reach into Americans’ private communications.“Whenever it is good for the government to brag about its success, it speaks loudly and publicly,” lawyers Thomas Durkin and Joshua Herman wrote in their motion. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets.”

If the government acknowledged that it had used evidence derived from the FISA Amendments Act, Daoud would have standing to challenge the law’s constitutionality. Specifically, Daoud’s lawyers would be able to take on a provision known as Section 702. The law permits the interception of foreign targets’ ­e-mails and phone calls without an individual warrant, including when the foreigners are in communication with Americans or legal residents.The U.S. Supreme Court in February rejected a constitutional challenge to Section 702 by a group of journalists, lawyers and human rights advocates, saying they had no standing to sue because they had not proved that their communications had been intercepted.But the Court also said that if the government intends to use information derived from the Section 702 surveillance in a prosecution “it must provide advance notice of its intent,” and a defendant may challenge the lawfulness of the surveillance. The government assured the Court that it would give such notice to criminal defendants.In a filing this month in Chicago, U.S. Attorney Gary S. Shapiro refused to say whether the evidence was obtained under Section 702. Instead, he said, the government told Daoud the evidence was acquired pursuant to a traditional FISA Court order, rather than under the expanded surveillance program authorized in 2008. A traditional order requires the government to go to a FISA judge and show probable cause that the target is an agent of a foreign power.Daoud’s attorneys say in their pleading that the government is being disingenuous. “We believe it is clear that the evidence . . . came from Section 702,” Durkin said in an interview. “Either Senator Feinstein’s information was correct in December 2012, or she was given wrong information. The government has never disputed what she said.”

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions. The 11-member Foreign Intelligence Surveillance court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.” In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said. The special needs doctrine was originally established in 1989 by the Supreme court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

The leader of the secret court that is supposed to provide critical oversight of the government’s vast spying programs said that its ability to do so is limited and that it must trust the government to report when it improperly spies on Americans. The chief judge of the Foreign Intelligence Surveillance court said the court lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other Court when it comes to enforcing [government] compliance with its orders.” Walton’s comments came in response to internal government records obtained by The Post showing that National Security Agency staff members in Washington overstepped their authority on spy programs thousands of times per year. The records also show that the number of violations has been on the rise.

The court’s description of its practical limitations contrasts with repeated assurances from the Obama administration and intelligence agency leaders that the court provides central checks and balances on the government’s broad spying efforts. They have said that Americans should feel comfortable that the secret intelligence court provides robust oversight of government surveillance and protects their privacy from rogue intrusions.President Obama and other government leaders have emphasized the court’s oversight role in the wake of revelations this year that the government is vacuuming up “metadata” on Americans’ telephone and Internet communications. “We also have federal judges that we’ve put in place who are not subject to political pressure,” Obama said at a news conference in June. “They’ve got lifetime tenure as federal judges, and they’re empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused.”

113th Congress Report SENATE 1st Session 113-118 ====================================================================== FREE FLOW OF INFORMATION ACT OF 2013 _______ November 6, 2013.--Ordered to be printed _______ Mr. Leahy, from the Committee on the Judiciary, submitted the following R E P O R T together with ADDITIONAL AND MINORITY VIEWS [To accompany S. 987]

Senator Cornyn offered an amendment (ALB13708) that would ensure that all persons or entities that are protected under the Free Press Clause of the First Amendment are covered by the bill's privilege. The Committee rejected the amendment by a roll call vote. The vote record is as follows: Tally: 4 Yeas, 13 Nays, 1 Pass Yeas (4): Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R- AZ) Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D- MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley (R-IA), Hatch (R-UT), Graham (R-SC) Pass (1): Feinstein (D-CA)

ADDITIONAL MINORITY VIEWS FROM SENATORS CORNYN, SESSIONS, LEE, AND CRUZ On December 15, 1791, the United States of America ratified the Bill of Rights--the first ten amendments to the U.S. Constitution. The first among them states: ``Congress shall make no law . . . abridging the freedom . . . of the press[.]'' United States Constitution, amend. I. The freedom of the press does not discriminate amongst groups or individuals--it applies to all Americans. As the Supreme Court has long recognized, it was not intended to be limited to an organized industry or professional journalistic elite. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (the ``liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a fundamental personal right[.]''); Lovell v. Griffin, 303 U.S. 444, 452 (1938) (``The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.''). The Founders recognized that selectively extending the freedom of the press would require the government to decide who was a journalist worthy of protection and who was not, a form of licensure that was no freedom at all. As Justice White observed in Branzburg, administering a privilege for reporters necessitates defining ``those categories of newsmen who qualified for the privilege.'' 408 U.S. at 704 That inevitably does violence to ``the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.'' Id.

The Supreme Court announced Monday morning that it would not be considering at this time a complaint filed months earlier that challenged the legality of the National Security Agency’s dragnet telephone surveillance program. The high Court issued a notice early Monday without comment acknowledging that it would not be weighing in on a matter introduced this past June by a privacy watchdog group after NSA leaker Edward Snowden revealed evidence showing that the United States intelligence agency was collecting metadata pertaining to the phone calls of millions of American customers of the telecommunications company Verizon on a regular basis. That disclosure — the first of many NSA documents leaked by Mr. Snowden — prompted the Washington, DC-based Electronic Privacy Information Center, or EPIC, to ask the Supreme Court to consider taking action that would end the collection of phone records on a major scale.

When EPIC filed their petition in June, they wrote, “We believe that the NSA’s collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974 and the Foreign Intelligence Surveillance Act of 1978 as amended.” “We ask the NSA to immediately suspend collection of solely domestic communications pending the competition of a public rulemaking as required by law. We intend to renew our request each week until we receive your response,” EPIC said. Five months later, though, the Supreme Court said this week that it would not be hearing EPIC’s plea. A document began circulating early Monday in which the high Court listed the petition filed by the privacy advocates as denied. With other cases still pending, however, alternative routes may eventually lead to reform of the NSA’s habits on some level. Lower Courts are still in the midst of deciding what action they will take with regards to similar lawsuits filed by other groups in response to the Snowden leaks and the revelations they made possible. The American Civil Liberties Union, the Electronic Frontier Foundation and conservative legal activist Larry Klayman have filed separate civil lawsuits in various US District Courts challenging the NSA’s program, all of which are still pending.

Cindy Cohn, the legal director of the EFF, told the Washington Post only weeks after the first Snowden leak appeared that the disclosures had been a “tremendous boon” to other matters being litigated, and pointed to no fewer than five previously-filed complaints challenging various government-led surveillance programs. "Now that this secret surveillance program has been disclosed, and now that Congressional leaders and legal scholars agree it is unlawful, we have a chance for the Supreme Court to weigh in,” EPIC lead counsel Alan Butler told The Verge on Monday.

WASHINGTON (AP) -- The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods, The Associated Press has learned. Citing security reasons, the U.S. has intervened in routine state public records cases and criminal trials regarding use of the technology. This has resulted in police departments withholding materials or heavily censoring documents in rare instances when they disclose any about the purchase and use of such powerful surveillance equipment. Federal involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures about classified federal surveillance programs.

One well-known type of this surveillance equipment is known as a Stingray, an innovative way for law enforcement to track cellphones used by suspects and gather evidence. The equipment tricks cellphones into identifying some of their owners' account information, like a unique subscriber number, and transmitting data to police as if it were a phone company's tower. That allows police to obtain cellphone information without having to ask for help from service providers, such as Verizon or AT&T, and can locate a phone without the user even making a call or sending a text message. But without more details about how the technology works and under what circumstances it's used, it's unclear whether the technology might violate a person's constitutional rights or whether it's a good investment of taxpayer dollars. Interviews, court records and public-records requests show the Obama administration is asking agencies to withhold common information about the equipment, such as how the technology is used and how to turn it on. That pushback has come in the form of FBI affidavits and consultation in local criminal cases.

"These extreme secrecy efforts are in relation to very controversial, local government surveillance practices using highly invasive technology," said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union, which has fought for the release of these types of records. "If public participation means anything, people should have the facts about what the government is doing to them." Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies. A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.

The leading civil liberties group in the United States has requested a federal court to stop the National Security Agency from collecting Americans’ phone data in bulk through the end of the year.

While the surveillance dragnet was phased out by Congress and Barack Obama last month, an American Civil Liberties Union suit seeks to end a twilight, zombie period of the same US phone records collection, slated under the new law to last six months. “Today the government is continuing – after a brief suspension – to collect Americans’ call records in bulk on the purported authority of precisely the same statutory language this court has already concluded does not permit it,” the ACLU writes in a motion filed on Tuesday before the second circuit court of appeals.

The venue is significant. On 7 May, as Congress debated ending the domestic phone-records collection, the second circuit ruled the collection was illegal. Yet it did not order Obama’s administration to cease the bulk collection, writing that a preferable option would be to stay out of the unfolding legislative battle over the future scope of US surveillance. That debate ended on 2 June with the passage of the USA Freedom Act, which reinstated expired provisions of the Patriot Act that the government had since 2006 relied upon – erroneously, in the second circuit’s view – for the bulk collection. Yet it ended the NSA’s bulk US phone records collection and created a new mechanism for the NSA to gather “call data records” from telecoms pursuant to a court order.

SMITH v. MARYLAND, 442 U.S. 735 (1979)

The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland court of Appeals affirmed. Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746. (a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U.S. 347 . Pp. 739-741.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736]   to the police, cf. United States v. Miller, 425 U.S. 435 . Pp. 741-746. 283 Md. 156, 389 A. 2d 858, affirmed.

Most courts continue to look the other way on MERS' lack of standing to sue, but the argument has picked up enough steam to consider the rather stunning implications. If MERS is not the title holder of properties held in its name, the chain of title has been broken and no one may have standing to sue. In MERS v. Nebraska Department of Banking and Finance, MERS insisted that it had no actionable interest in title, and the court agreed.

The international criminal court has persistently avoided opening an investigation into alleged war crimes in Gaza as a result of US and other western pressure, former court officials and lawyers claim.In recent days, a potential ICC investigation into the actions of both the Israel Defence Forces and Hamas in Gaza has become a fraught political battlefield and a key negotiating issue at ceasefire talks in Cairo. But the question of whether the ICC could or should mount an investigation has also divided the Hague-based court itself.

An ICC investigation could have a far-reaching impact. It would not just examine alleged war crimes by the Israeli military, Hamas and other Islamist militants in the course of recent fighting in Gaza that left about 2,000 people dead, including women and children. It could also address the issue of Israeli settlements in the Palestinian territories, for which the Israeli leadership would be responsible.

A federal appeals court Tuesday eliminated a possible roadblock for the National Security Agency (NSA), delaying a judge’s order to halt the agency's controversial data collection.The order from the U.S. court of Appeals for the D.C. Circuit sets the NSA on a path to wind down its bulk gathering of Americans’ phone records later this month.ADVERTISEMENTOn Monday, Judge Richard Leon of the U.S. District court for D.C. had sought to end the program immediately, before a Nov. 29 deadline. Leon’s order would have ended the NSA’s collection of records about one California lawyer, though doing that might have required taking the entire system offline, he acknowledged.Late Tuesday afternoon, however, the appeals court stepped in and issued a stay on that order, preventing it from taking effect. The move from the appeals court was widely expected, given that Leon's order would merely kill the program three weeks early.“The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay,” it said in a brief order, “and should not be construed in any way as a ruling on the merits of that motion.”

Plaintiffs suing the Obama administration, led by conservative legal activist Larry Klayman, will have until noon Friday to submit arguments on whether the program should be shut down immediately. The government has until the following Monday. Few watchers expect the court to interfere with the NSA’s own schedule, which will take the phone records program offline Nov. 29.Under the current program, the spy agency collects metadata records about millions of Americans’ phone calls, which include the numbers involved in a call, when the call occurred and how long it lasted. The records do not include content about people’s conversations.This summer, Congress passed legislation ending the current system and forcing the NSA to move to a new process in which it requests a narrow set of records from individual phone companies.

On Monday, the agency told lawmakers on Capitol Hill that it has “successfully developed a technical architecture to support the new program” and that testing is “underway.”In his Monday order, Leon said that the NSA should not wait until the new system was up and running, since “even one day” of the current program poses a threat to the Constitution. 

Microsoft's new plan to keep the US government's hands off its customers' data: Germany will be a safe harbor in the digital privacy storm. Microsoft on Wednesday announced that beginning in the second half of 2016, it will give foreign customers the option of keeping data in new European facilities that, at least in theory, should shield customers from US government surveillance. It will cost more, according to the Financial Times, though pricing details weren't forthcoming. Microsoft Cloud - including Azure, Office 365 and Dynamics CRM Online - will be hosted from new datacenters in the German regions of Magdeburg and Frankfurt am Main. Access to data will be controlled by what the company called a German data trustee: T-Systems, a subsidiary of the independent German company Deutsche Telekom. Without the permission of Deutsche Telekom or customers, Microsoft won't be able to get its hands on the data. If it does get permission, the trustee will still control and oversee Microsoft's access.

Microsoft CEO Satya Nadella dropped the word "trust" into the company's statement: Microsoft’s mission is to empower every person and every individual on the planet to achieve more. Our new datacenter regions in Germany, operated in partnership with Deutsche Telekom, will not only spur local innovation and growth, but offer customers choice and trust in how their data is handled and where it is stored.

On Tuesday, at the Future Decoded conference in London, Nadella also announced that Microsoft would, for the first time, be opening two UK datacenters next year. The company's also expanding its existing operations in Ireland and the Netherlands. Officially, none of this has anything to do with the long-drawn-out squabbling over the transatlantic Safe Harbor agreement, which the EU's highest court struck down last month, calling the agreement "invalid" because it didn't protect data from US surveillance. No, Nadella said, the new datacenters and expansions are all about giving local businesses and organizations "transformative technology they need to seize new global growth." But as Diginomica reports, Microsoft EVP of Cloud and Enterprise Scott Guthrie followed up his boss’s comments by saying that yes, the driver behind the new datacenters is to let customers keep data close: We can guarantee customers that their data will always stay in the UK. Being able to very concretely tell that story is something that I think will accelerate cloud adoption further in the UK.

In Hassan v. City of New York, the Third Circuit yesterday emphatically overturned a New Jersey district court, which had dismissed a challenge to the New York City Police Department’s Muslim surveillance program. The decision is important not only for the New Jersey plaintiffs who brought the case, but also for its analysis of several legal issues that have dogged efforts to obtain judicial review of surveillance programs.

The threshold issue in Hassan was whether the plaintiffs had alleged injury sufficient to establish standing to bring claims that the NYPD’s surveillance of Muslim communities in New Jersey violated the equal protection clause of the Fourteenth Amendment as well as the free exercise and establishment clauses of the First Amendment. The Third Circuit ruled that the fundamental injury alleged by the plaintiffs — unequal treatment on the basis of religion — was sufficient to keep them in court. The court rejected as “too cramped,” the City’s contention that discrimination is only actionable when it results in deprivation of “a tangible benefit like college admission or Social Security.”

One of the most remarkable aspects of the lower court’s dismissal of Hassan was its acceptance of the City’s argument that any injury to the plaintiffs was not fairly traceable to the police. Rather, defendants argued, it was the fault of the Associated Press, which published a Pulitzer Prize-winning investigation of the NYPD’s surveillance of Muslim communities in New York and New Jersey. The court described this position — variants of which have been articulated in the wake of Snowden’s disclosures as well — as “What you don’t know can’t hurt you. And, if you do know, don’t shoot us. Shoot the messenger.” The Third Circuit wasn’t buying it. The primary injury alleged was discrimination, which was caused by the City, not than the press.