Just say NO to continued government surveillance!

Call/email Congress. Ask legislators to oppose the FISA Improvements Act. Look here at the ACLU comments, here at the EFF comments on "fake fix bill", another EFF note on 54 civil liberties and public interest organizations opposing this bill and here for an analysis in the British paper The Guardian (Permanent loophole for "backdoor search provision," and the Cato Institute, which called it the NSA Fig Leaf.

Ask your congresspeople to support the USA Freedom Act, and enact protections for non-Americans. Read the ACLU comments supporting this alternative bill. The EFF also supports this bill, which was co-sponsored by Representative Sensenbrenner (R, Wis) and Senator Leahy (D, Ver).

There are limits to what the USA Freedom Act accomplishes, according to the EFF website:

The bill only addresses a small portion of the problems created by NSA spying and overreaching government secrecy. It does not touch problems like NSA programs to sabotage encryption standards, it does not effectively tackle the issue of collecting information on people outside of the United States, and it doesn't address the authority that the government is supposedly using to tap the data links between service provider data centers, such as those owned by Google and Yahoo.

The bill also does not address a key issue that the government uses to inhibit lawsuits contesting the spying: excessive secrecy. For instance, it won't deal with the major over-classification issues or the state secrets privilege, the latter of which is used aggressively to prevent litigation from getting to a court decision on whether the spying is unconstitutional. The bill also leaves out a clause appearing in Sen. Ron Wyden's bill [113 S. 1551 Intelligence Oversight and Surveillance Reform Act] and, which provides guidelines to obtain standing in legal cases against the spying.

Lastly, it does not hold public officials accountable for their role in allowing this spying to take place and hiding it from public and Congressional oversight, and it does not create a Congressional committee that could independently investigate the surveillance programs and give the country a full accounting. Remember we are still just learning the full depth of the programs on a piecemeal basis.

So while we are happy to support the USA FREEDOM Act, we also acknowledge that there is still much to do to dial back the NSA. This can happen through ongoing improvements to the USA FREEDOM Act as well as through additional bills.

The EFF does list 7 steps the USA Freedom Act uses to improve privacy rights:
1. It would likely stop the NSA's call records program;
2. The bill modifies Section 702 of the FISA Amendments Act (EFF thinks one effect of the amendment is good - it requires the NSA to get a more narrowly tailored order from the FISA court before searching its enormous databases of call data for information on U.S. citizens. However, EFF is concerned that the amendment codifies the practices and existence of the collection and databases rather than abolishing them.
3. The bill creates a special advocate before the FISA court.
4. "Significant decisions" by the FISA court must be disclosed by the Attorney General. This is hugely important, though the FISA court itself has increased the publication of some of its decisions in recent days, there is neither any confidence that it might continue nor anything to show the public that we have had publication of either the most significant decisions or any proportion of significant decisions.
5. It increases protections designed to limit the potential harm from the use of National Security Letters (NSLs, the secret orders from the FBI that include a gag order preventing recipients from ever announcing they got one). Nevertheless, the law fails to address the central problem with NSLs: NSLs would still be unconstitutional.
6. Increases (a tiny bit) the ability of the companies that are ordered to cooperate with government agencies to be more transparent to users about their cooperation. There would still be gag orders limiting the amount of information that could be shared, but reports could be somewhat more detailed.
7. It grants subpoena powers for the Privacy and Civil Liberties Oversight Board (PCLOB). PCLOB is supposed to provide oversight and recommendations to the executive branch when it comes to our civil liberties, but currently has no subpoena powers.

Fight for the Future coordinates an Internet Fight against NSA Surveillance

Who here has gotten the e-mail from Fight for the Future? FFtF is a not for profit that

is dedicated to protecting and expanding the Internet's transformative power in our lives by creating civic campaigns that are engaging for millions of people. Alongside internet users everywhere we beat back attempts to limit our basic rights and freedoms, and empower people to demand technology (and policy) that serves their interests.

Well, they don't have any problem with self esteem, anyway. Their issues, from their About Us page, listed as posing "major threats to freedom of expression online":

Copyright and patent laws are outdated and overzealous. They hurt artists and innovation, shifting control of our art, media, and ideas to large corporations.
Slow speed and limited access: Lack of competition in the U.S. broadband market has resulted in an Internet system that is among the slowest, most expensive and least available among developed nations.
Tracking and Spying: People can’t express themselves freely online when they feel like they are being watched. In an extreme form, government and corporate surveillance can lead to political repression.

On Feb. 11, they are urging websites to add a banner to their sites

urging people to call/email Congress. We'll ask legislators to oppose the FISA Improvements Act, support the USA Freedom Act, and enact protections for non-Americans.

If you're not in the US: Visitors will be asked to urge appropriate targets to institute privacy protections.

Visit their website to see.

I have mixed feelings about the breadth of their issues. But I do know what I think about the NSA and FISA courts.

Change Comes to the O.E.D.

The venerable Oxford English Dictionary, usually referred to as the O.E.D., is working on its third edition.  The last edition was published in 1989, and the editors had hoped to bring out the third edition in 2005.  The current guesstimate is that the third edition will come out in 2037!  A new editor, Michael Proffitt, has taken the helm of the O.E.D., and he has a different vision of the revered dictionary; he sees it as less "the heavy volumes of yore," and more "as a trove of invaluable data."  The New York Times recently interviewed Mr. Proffitt, who was very upbeat about the future of dictionaries, declaring in the article that "their time has come ... [p]eople need filters much more than they did in the past."  Some of the changes that he is contemplating include links to O.E.D. entries from digitized literature; more use by students (although he doesn't state how he would accomplish that); licensing O.E.D. data to other companies; more aggressive pricing; and "less stuffy definitions" pulled from blogs, Twitter feeds, and other untraditional sources.  One of the most interesting parts of the article comes at the end when the author, Tom Rachman, lists some words in common use today that have actually been in use for some time.  Some examples are OMG (first used in 1917) and Unfriend (first used in 1659).  

Archives Torched in Canada

Climate change has been in the news a lot lately thanks to the extreme severe winter weather that has affected most of the United States and Canada over the past several weeks.  Researchers investigating changes in weather often seek out archival materials in order to glean historical evidence of patterns in weather events and temperatures.  Canadian environmental researchers will be out of luck in the future thanks to the decision of the Canadian government to destroy a number of archives relating to climate research.  In 2012, the government announced it was going to close down national archives sites around the country, but promised to digitize any materials that were going to be discarded or sold.  It turns out that only a small part of the archives was scanned, while the balance was sent to landfills, burned, or otherwise disposed of.  According to this report, archives relating to climate change fared the worst because of the Conservative government's hostility to climate research.  Among the archives destroyed were the environmental research materials of the St. Andrews Biological Station in New Brunswick, the Freshwater Institute Library in Winnipeg, and the Northwest Atlantic Fisheries Centre in St. John's.  The report goes on to state that no records were kept of what was discarded, sold, lost, or burned.  The materials that were destroyed are priceless and irreplaceable.  They contained nearly one hundred years' worth of information related to Canadian fisheries, freshwater ecosystems, and oceans.  The savings generated by closing the archives is small--$443,000 dollars (Canadian) a year.  Critics of the closures maintain that they were driven by the Conservative government's war against science and evidence-based climate research. 

Follow up on Fundraiser for Food For Thought Books

Some time ago, I wrote a post here about a small bookstore in Amherst, Massachusetts, Food For Thought Books, which was trying a crowdsource fundraiser to keep itself open. I just thought I would report briefly that they made their goal and a bit over. So Yay! for crowdsource and for small, community-based, socially conscious bookstores. Congratulations to Food For Thought and many thanks to all of those who contributed.

Click Farms - diluting social media

The Associated Press did an investigative report on all those Facebook Likes and it turns out (I am Shocked! Shocked I tell you!) that they are not all genuine.

The Boston Globe has a nice version of the story. It does not seem to have run in many papers - I found lots of little "Five things to Know About Click Farms" but this is an in-depth story about the pervasive problem and how it undermines the value of Google Plus and Facebook Likes, Retweets and other methods that social medias have developed for users to how how much play either they, individually, or a particular bon mot are getting. And the story is interesting, not just to see what the various players are doing in the weapons race on each side to outwit each other, but to discover WHO is using click farms.

For instance, would you be interested to know that the U.S. Department of State dropped $630,000 in 2013 to boost its Facebook numbers? It stopped after an inspector general (thank you, thank you!) criticized this use of tax dollars. I mean, who are they competing against?!! It's not as though I can choose a different country's state department! Or maybe choose a different government agency to represent me to the world? Sheesh! Should we lay this at John Kerry's door or is this some individual agency wonk run amok? The result was that the U.S. Dept. of State was a fave in Cairo.*
Ta Da.


*(click on the LIKES and it will take you to a page that will analyze the numbers behind it. This week, for instance, the numbers dropped from a recent high Dec, 5 - 11. But the most people who "like" the DOS are in Washington, DC which seems more believable, unless there is a click farm there, too). The image is the Facebook page this day for Dept of State, showing the Likes.

Gone with the wind -- burning the archives

Wow. Ran across a blog post about 160 year old legal documents destroyed... apparently this is becoming a genuine web phenomenon as more and more bloggers pick it up. The North Carolina Dept of Archives summarily destroyed a room's worth of legal documents dating from the early to middle 1800's, after it was discovered by a county clerk. Local folks and a local historical society had been enthusiastically working on sorting and preserving them until they made the mistake of contacting that department to ask for professional help in conserving the documents. Whoops! Apparently that's where politics may have reared it's ugly head. The author, Grace, supposes,

HERE’S WHAT I THINK:
After the Civil War (after emancipation), a lot of large land-owners deeded out substantial tracts of land to their former slaves. These former slaves had demonstrated to their masters that they were loyal, hard-working, and would continue to farm and contribute to the plantation collective as they always had. The only difference is that they would own the land they worked, and earn a somewhat larger income as a result of their efforts.

During reconstruction, a lot of land holders, both black and white, had difficulty paying very high property taxes imposed by Federal Occupiers. In swept speculators and investors from up North (these people have come to be known as “Carpet Baggers”.) They often forced white land owners to sell out at a fraction of the actual value of their property. In the case of black land-owners, sometimes all the Carpet Baggers offered was threats. The effect was the same – a vast transfer of wealth from titled property owners to new people who became, in the decades of the late 19th and early 20th century, among the wealthiest people in the South.

How do I know this? Some of my own ancestors were Carpet Baggers from Maryland. They made a small fortune after the war, stealing land, setting up mills, and effectively re-enslaving two or three generations of both poor-white and black natives of Halifax County, North Carolina.

My suspicion is that in and amongst all those now destroyed records, was a paper trail associated with one or more now-prominent, politically connected NC families that found its wealth and success through theft, intimidation, and outrageous corruption.

Prove me wrong. You can’t. They destroyed the records.

See a series of posts following the original where the archives folks reply with lame excuses that the blogger blows away. If you come to this late, and using that link is not helpful, the dates are late December, 2013 - early January, 2014. The destruction of the documents happened on Dec. 6, 2013.

The image is from the original blog, and is captioned, "Boxes of documents from the Franklin County Courthouse seized and burned by the North Carolina State Archives." Found at http://stumblingintheshadowsofgiants.wordpress.com/ written by Grace.

Start monitoring TAFTA (a.k.a. TTIP); or WHY ARE THEY NEGOTIATING in SECRET?

TAFTA (Trans-Atlantic Free Trade Agreement), also known as TTIP (Transatlantic Trade and Investment Partnership), is a new, and very secret trade agreement being negotiated between the U.S. and E.U. It mirrors an earlier attempt in a provision of the Multilateral Agreement on Investment (MAI), in the mid- to late 1990's to work out an agreement among the 29 members of the OECD (Organisation for Economic Cooperation and Development). But they made the mistake back then of letting the word get out. And public opinion was VERY STRONGLY against it. So this time, they are negotiating in deepest secrecy.

Wow! This sounds familiar. A lot like what happened when some copyright holders convinced the U.S. Congress into recent attempts to sew up the intellectual property rights to the Internet with PIPA and SOPA. Then followed COICA and ACTA. Remember those ill-considered bills and treaties? Google and Facebook, Wikipedia and a number of other leading social media and search engine sites really led an effort to educate the public and lobby Congress about what terrible bills these were -- that the way they were written would cripple all the good things that make the Internet a real hub of commerce and intellectual ferment and creativity.

This time (and in the 1990's), the agreement is a work-around that achieves all the goodies that were on the checklists for those bills. A few whispers are trickling out. This link from Canada, sees the European public's point of view, where it seems as though American business is shoving changes down their throats so they can sell to them the shoddy goods that are now banned by the EU's superior regulatory schemes.

EFF, bless their hearts, are tracking this, and, of course, are looking at it from the Internet perspective (here is EFF's page link for TAFTA):

... a newly leaked document from La Quadrature du Net shows how EU delegates intend to set rules around liability for Internet Service Providers and regulations over the transfer and processing of users’ personal online data, as well as rules to set a “uniform approach” to cyber security across the region. While the document makes no mention of copyright enforcement, other statements lead us to believe that it will also be included.

U.S. and European delegates will negotiate TAFTA secretly, mirroring the same undemocratic processes that led to the Anti-Counterfeiting Trade Agreement (ACTA). Like the Trans-Pacific Partnership (TPP) agreement, TAFTA’s objective is to address a wide range of cross-border regulatory issues under one overarching agreement

(here is La Quadrature du Net's page link for TAFTA in English) Possibly it is lucky for us and the developing world that the negotiations may have broken down over the scandal of U.S. spying on our European allies. The word at EFF, back in July, 2013, on the U.S.- EU negotiations over TAFTA, was the European leaders' exclaiming over how impossible it was to continue trade talks in the atmosphere of cold-war tactics like NSA surveillance of friendly leaders. Thank you, NSA!

However, the English edition of the left-wing French monthly newspaper, Le Monde Diplomatique (an independent subsidiary of the daily Le Monde, which may be better known to our readers), provides an in-depth report and alert about the negotiations dated December 2, 2013. This report takes a much broader view of the focus of TAFTA than EFF, which truly focuses on just the impact it could have on Internet companies and users. It appears that TAFTA would require the United States, not just federal but also state and local laws to do something very like the E.U. harmonization principle, where the member states must bring their local laws into agreement with the European Union agreed law. So it would impact American law and citizens as well as EU consumers. Here is a segment from Le Monde Diplomatique:

The obligation of signatory countries to “ensure conformity of their laws, regulations and administrative procedures” to these terms would be strongly enforced. They would certainly be keen to honour the terms, since failure to do so would subject countries to legal challenges before tribunals specially created to arbitrate between investors and states, and having the power to authorise trade sanctions against the latter.

This is in line with other trade pacts already in force. Last year the World Trade Organisation (WTO) condemned the US over its rules on the “dolphin-safe” labelling of tuna and country-of-origin labelling of meat, and for banning candy-flavoured cigarettes, which it ruled were barriers to free trade. The WTO also ordered the EU to pay hundreds of millions of euros in penalties over its ban on imports of genetically modified organism (GMO) foods. The TTIP/TAFTA and the TPP would allow foreign companies to attack any signatory country whose policies impacted on their profits.

Companies would be able to demand compensation from countries whose health, financial, environmental and other public interest policies they thought to be undermining their interests, and take governments before extrajudicial tribunals. These tribunals, organised under World Bank and UN rules would have the power to order taxpayers to pay extensive compensation over legislation seen as undermining a company’s “expected future profits”. [snip]

The US Chamber of Commerce and BusinessEurope, two of the world’s largest business organisations, have called on TIPP-TAFTA negotiators to arrange for major industry stakeholders on both sides of the Atlantic to be “at the table with regulators to essentially co-write regulation.”

The corporate interests have been remarkably candid about their goals, for example rolling back GMO regulation. [snip]

The offensive is equally vigorous over personal privacy. The Digital Trade Coalition, a group of high-tech and Internet companies, has encouraged TTIP/TAFTA negotiators to ensure that EU data privacy policies do not encumber the flow of personal data into the US. After the recent revelations of the US National Security Agency’s (NSA) indiscriminate data spying programmes, the tech corporations’ statement that “the current judgment of the EU that the US does not provide ‘adequate’ privacy protection is not reasonable” seems particularly outrageous. The US Council for International Business, which includes companies such as Verizon that have handed vast quantities of personal data over to the NSA, has stated: “The agreement should seek to circumscribe exceptions, such as security and privacy, to ensure they are not used as disguised barriers to trade.”

Food safety is also a target. The US meat industry is seeking to use the TTIP/TAFTA to remove the EU ban on the post-slaughter dipping of meat in chlorine. The North American Meat Association laments that “only the application of water and steam are permitted for use on meat carcasses by the EU.” [snip]

Ractopamine is a drug used to promote leanness of meat in cattle and pigs. It has been banned or limited in 160 nations (including EU member states, Russia and China) due to potential risks to human and animal health. The National Pork Producers Council sees these protective measures as a distortion of the principle of free trade that the TIPP-TAFTA must rectify urgently: “US pork producers will not accept any outcome other than the elimination of the EU ban on the use of ractopamine in the production process.” [snip]

Airlines for America (A4A), the biggest US airline industry association, has drawn up a list of “needless regulations [that] impose a substantial drag on our industry” — which they hope can be dismantled via the TTIP/TAFTA. First is the EU Emissions Trading Scheme, Europe’s central climate change policy, which required airlines to pay for carbon emissions. A4A labels the policy a “barrier to progress,” ... [snip]

But the most determined enemy of regulation is the financial sector. Five years after the global financial crisis, the US and EU negotiators have agreed that regulation has had its day. The framework they want to put in place would remove all safeguards on high-risk investments and prevent governments from controlling the volume, nature or origin of financial products on the market. Basically, the word “regulation” would be removed from the dictionary.

Where has this return to Thatcherism come from? The Association of German Banks has “concerns” about the (timid) reform of Wall Street after the financial crisis of 2008. The association includes Deutsche Bank, which received hundreds of billions of dollars from the US Federal Reserve in 2009, in exchange for mortgage-backed securities. Deutsche Bank takes issue with the Volcker Rule, a centrepiece of the Wall Street reform, calling it “much too extraterritorially burdensome for non-US banks”. Insurance Europe, a federation of European insurance firms, has stated its hope that the TIPP-TAFTA can be used to “remove” collateral requirements that keep financial firms from taking on high-risk investments.

I recommend you read the two links (EFF & Le Monde Diplomatique) and look for more information. This will hugely remake our world if it actually is negotiated. There is very little evidence that it will improve Gross Domestic Product (there is a section at the end of the LMD article about this), so it will really only benefit the CEOs at the top of the corporations, quite possibly not even the shareholders.

Here is another link: Public Citizen.org/TAFTA, Huffington Post follows TAFTA, Food and Water Watch on TAFTA, Tumblr TAFTA links, and, from the other side, TAFTA,The Case for an Open Transatlantic Free Trade Area, a 300 page booklet in PDF format by Jaime Garcia Lagaz and Joseph Quinlan for the Foundation for Social Studies and Analysis (FAES, which seems to be from Spain, since the booklet was printed there, though the booklet is English with an American flag decorating the cover of, at least, this edition).

I must credit the fabulous image decorating this blog post. I found it at http://falkvinge.net/2012/11/23/the-unitary-patent-and-why-we-should-be-worried/ where the blogger, Rick Falkvinge, the founder of the Swedish and first Pirate Party, is discussing the problems with the Unitary Patent. The image of an EU flag with a hand grabbing across it, and symbols of law, were just too perfect for this blog post. Thank you, Rick and kudos to you or whomever created this awesome image for your blog post!

New on SSRN: Legal Education in Crisis, and Why Law Libraries are Doomed

It's still a bit rough, but in view of recent developments in law library land (including reports from Washington University Law School), I thought I should post this for comment:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2370567

Legal Education in Crisis, and Why Law Libraries are Doomed

Abstract:      

The dual crises facing legal education—the economic crisis affecting both the job market and the pool of law school applicants, and the crisis of confidence in the ability of law schools and the ABA accreditation process to meet the needs of lawyers or society at large—have undermined the case for not only the autonomy, but the very existence, of law school libraries as we have known them. Legal education in the United States is about to undergo a long-term contraction, and law libraries will be among the first to go. A few law schools may abandon the traditional law library completely. Some law schools will see their libraries whittled away bit by bit as they attempt to answer “the Yirka Question” in the face of shrinking resources, reexamined priorities, and university centralization. What choices individual schools make will largely be driven by how they play the status game.

Number of Pages in PDF File: 37

Keywords: law libraries, legal education, law schools, rankings, reputation

NSA decision, Klayman v. Obama

The exciting decision from the Federal District Court for the District of Columbia, Judge Richard Leon presiding, just came out, and it's quite powerful. You can see the full text at Scribd. Judge Leon writes a strongly worded opinion, that is rather narrow in actual scope, but contains a good deal of important reasoning. There are 2 cases joined here, so there are 2 petitioners. The judge is only ruling on petitioners' requests for an injunction against the NSA continuing to gather metadata about their telephone calls as part of their Bulk Telephony Metadata Program. Judge Leon further rules that the NSA must destroy any information they have already collected of this nature about the two petitioners.

However, in coming to this ruling, Judge Leon distinguishes the 1979 decision, Smith v. Maryland, 442 U.S. 735 which the FISC Court has ruled "squarely control[s]" on the issue of "telephone service provider metadata." Indeed, the government has so heavily relied on courts accepting the Smith case as controlling, that they have considered the issue as completely settled. In Smith, the police installed a pen register on a telephone without a warrant, after a robbery victim complained to them that she was receiving obscene and threatening phone calls. The FISC court accepted the Smith precedent in a decision that has been redacted and published at their website, In Re An Application of the [FBI] for an Order Requiring the Production of Tangible Things from [Redacted], BR13-109 at 6-9, (FISC, Aug. 29, 2013). Leon, however, writes that a short term, very limited pen register is a far cry from the long-running, wide-ranging modern technology being deployed n the Bulk Telephony Metadata Program, and furthermore notes that the Supreme Court recently called the Smith decision into some doubt in United States v. Jones, 132 U.S. 945 (2012), (attaching a GPS device to a vehicle) a 5-4 decision. Judge Leon notes that the Supreme Court took the Jones decision as an opportunity to revisit the Smith decision, because there was an earlier warrantless tracking device opinion, United States v. Knotts, 460 U.S. 276 (1983) which could have been used as precedent.

Judge Leon uses strong language about the NSA datagathering program, which enlists the nation's telecommunications giants (and, incidentally, the Internet search and social networking providers as well) to

"operate what is effectively a joint intelligence-gathering operation with the Government." Klayman, at 48. ... the almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. ... The notion that the government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best in 1979, the stuff of science fiction. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future." Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring). ... (Klayman at 49)

And finally and most importantly, not only is the Government's ability to collect, store and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people's telephone metadata is much greater as well.... But the ubiquity of phones has dramatically altered the quantity of information now available and, more importantly, what that information can tell the Government about people's lives. ... Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic, a vibrant and constantly updating picture of the person's life. ... (Klayman at 50, 54)

In sum, the Smith pen register and the ongoing NSA Bulk Telephone Metadata Program have so many significant distinctions between them that I cannot navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones. (Klayman, at 55)

[Judge Leon next examines the likelihood that the petitioners will succeed in showing that the searches are unreasonable. He does a very careful survey of the Supreme Court Fourth Amendment jurisprudence, and concludes:] ... To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet. (Klayman at 58)

The Government asserts that the Bulk Telephony Metadata Program serves the "programmatic purpose" of "identifying unknown terrorist operatives and preventing terrorist attacks." Govt.'s Opp'n at 51 -- an interest that everyone, including this Court, agrees is "of the highest order of magnitude," In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F3d 1004, 1012 (FISA Ct. Rev, 2008). ... A closer examination of the record, however, reveals that the Government's interest is a bit more nuanced -- it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. ... (Klayman, at 59-60)

Yet, turning to the efficiency prong, the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack or otherwise aided the Government in achieving any object that was time-sensitive in nature. In fact, none of the three "recent episodes" cited by the Government which supposedly "illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack" involved any apparent urgency. (Klayman, at 61. Judge Leon describes the 3 examples laid out by the Government in the Holley Declarations, and finds none of the three persuasive). ... Given the limited record before me ... most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than investigative tactics -- I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism ... (Klayman at 62)

I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast. (Klayman at 64)

[Judge Leon then considers the Government's complaint of the burdensomeness of removing the two plaintiffs from its database and that this may cause a number of other such requests, degrading the utility of the program.] ... Of course the public has no interest in saving the Government from the burdens of complying with the Constitution! ... For reasons already explained, I am not convinced ... that the NSA's database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will "degrade" the program in any meaningful sense. (Klayman at 66)

This case is the latest chapter in the Judiciary's continuing challenge to balance the national interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. ... (Klayman at 66-67)

The image of Judge Leon decorating this post is from Suffolk Law Review's Donahue Lecture series. Judge Leon spoke at our school in 2012, about his cases on the Guantanamo detainee litigation, balancing personal liberties against national security during the war on terror. Seeing the title of his talk, which I attended, makes it doubly interesting that he heard this case on the NSA.