Author Archive | Orin Kerr

How to Read a Legal Opinion: A Guide for New Law Students

I’ve posted this before, but I thought some of our newer readers might appreciate a re-post of my short article on how to read legal opinions: How to Read a Legal Opinion: A Guide for New Law Students. It’s intended for new law students, but I understand that at least some non-lawyers have found it helpful, too. My apologies for the re-post to those who have seen the article before. […]

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Amicus Briefs in United States v. Auernheimer

Three Four amicus briefs have been filed in support of the appellant in United States v. Auernheimer, the Computer Fraud and Abuse Act case I have blogged about (and for which I am co-counsel for the appellant). Here they are:

1. National Association of Criminal Defense Lawyers (Attorneys: Counsel from Keker & Van Nest)

2. Mozilla Foundation, Computer Scientists, Security and Privacy Experts (Attorney: Jennifer Granick)

3. Thirteen Professional Security Researchers (Attorney: Alex Muentz)

4. Digital Media Law Project (Attorney: Kit Walsh)

Also, this updated opening brief for the appellant was filed on July 2 to correct some formatting issues. (All the substance is exactly the same.)

UPDATE: My apologies that I accidentally overlooked the fourth amicus brief that was filed; I have now added it. […]

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More on How the FISC Justifies the Legality of Requiring Telephone Providers to Turn Over Entire Databases of Metadata

A month ago, on the day that The Guardian released the FISC order requiring Verizon to turn over all of its telephone metadata, I wrote:

If the order is what it appears to be, then the order points to a problem in Section 1861 that has not been appreciated. Section 1861 says that the “things” that are collected must be relevant to a national security investigation or threat assessment, but it says nothing about the scope of the things obtained. When dealing with a physical object, we naturally treat relevance on an object-by-object basis. Sets of records are different. If Verizon has a database containing records of billions of phone calls made by millions of customers, is that database a single thing, millions of things, or billions of things? Is relevance measured by each record, each customer, or the relevance of the entire database as a whole? If the entire massive database has a single record that is relevant, does that make the entire database relevant, too? The statute doesn’t directly answer that, it seems to me. But certainly it’s surprising — and troubling — if the Section 1861 relevance standard is being interpreted at the database-by-database level.

In today’s Wall Street Journal, Jennifer Valentino-DeVries and Siobhan Gorman have an article, Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering, shedding light on the underlying FISC opinion:

The National Security Agency’s ability to gather phone data on millions of Americans hinges on the secret redefinition of the word “relevant.”

. . . In classified orders starting in the mid-2000s, the [FISC] accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records


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A Proposal To Reform FISA Court Decisionmaking

Yesterday’s New York Times story on the secret legal opinions of the FISA court prompts a natural question: How should the FISA court reach its decisions, and how do we know it is doing so correctly? That breaks down into two questions. First, what procedures should the FISA court use to reach legal conclusions? And second, when or how should those legal conclusions be made public? The latter has received much more attention than the former. Like a lot of people, I tend to think that it wouldn’t impact national security for the FISA court to release more information about its decisions, at least in those cases when the judges consider abstract legal issues.. Perhaps the court could issue opinions in redacted form; perhaps it could simply release a summary of its legal conclusions and reasoning. Either way, a lot of people have voiced opinions on that issue. In this post, I want to focus on the first question that hasn’t received as much attention: What procedures should the FISA court use to reach its legal conclusions?

The question is hard to answer in part because we don’t know much about the procedures the FISA court presently uses. From what we know, it seems that only the government appears before the FISC judges (putting aside the procedures described in 50 U.S.C. 1881a(i)). We don’t know for sure, but it seems likely that DOJ lawyers apply for an order and the FISC issues an opinion to settle some legal issue raised by the opinion. Presumably they ask for briefing from DOJ, but there’s no evidence they ask for briefing from any other side. The Court then issues an opinion based only on the application and briefing from one side. I’m not sure it works that way, but it seems like […]

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Hints and Questions About the Secret Fourth Amendment Rulings of the FISA Court

In the New York Times, Eric Lichtblau has a major scoop describing some of the secret rulings of the Foreign Intelligence Surveillance Court, aka the FISC (and sometimes just called “the FISA court”). According to Lichtblau’s sources, described as “current and former officials familiar with the court’s classified decisions,” the FISA court has issued over a dozen significant rulings. Some of the rulings are “nearly 100 pages long.” Although Lichtblau purports to summarize the rulings, I find his descriptions a frustrating read. Maybe it’s just me, but I find Lichtblau’s writing to be sufficiently vague that his distillation of the opinions leaves me with more questions than answers. In this post, I want to go through what Lichtblau says about the Fourth Amendment rulings of the FISA court and why his descriptions leave me confused. I’ll try to get to the statutory issues in a future post.

Lichtblau writes:

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,


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Public Testimony About Classified Activities: A Thought On the Clapper Dilemma

As Jonathan notes below, DNI James Clapper has apologized for his “clearly erroneous” testimony before Congress about NSA surveillance. The underlying question is a tricky one, though: How can you have public testimony about classified activities? Senator Wyden had been briefed about the NSA program, and he knew the answer to the question. So he intentionally asked Clapper the question to pressure Clapper to disclose the classified program. Clapper had three choices: Disclose the classified program, give “clearly erroneous” testimony, or clam up and say that he couldn’t answer (effectively saying “yes”). The only way to avoid being placed in that dilemma was not to testify at all. No good options there, at least if you accept that we want open testimony, that witnesses should tell the truth, and that classified programs should stay classified.

Another way to look at it is that the real check here is inside the Intelligence Committee before you get to the hearing. The members of the Intelligence Committee get classified briefings, and if they are upset by what they learn they can put witnesses in that uncomfortable spot during testimony. If the government keeps members of the Committee happy, the Committee members presumably will avoid such questions. Of course, whether that check works depends on the members of the Committee, and the kinds of things that make them sufficiently annoyed or upset so that they will ask those kinds of questions.

UPDATE: I have changed the post a bit to clarify its meaning. […]

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NSA-Style Surveillance, The French Version

An interesting story for those interested in comparative law:

[T]he newspaper Le Monde disclosed on Thursday that France has its own large program of data collection, which sweeps up nearly all the data transmissions, including telephone calls, e-mails and social media activity, that come in and out of France.

Le Monde reported that the General Directorate for External Security does the same kind of data collection as the American National Security Agency and the British GCHQ, but does so without clear legal authority.

The system is run with “complete discretion, at the margins of legality and outside all serious control,” the newspaper said, describing it as “a-legal.”

Nonetheless, the French data is available to the various police and security agencies of France, the newspaper reported, and the data is stored for an indeterminate period. The main interest of the agency, the paper said, is to trace who is talking to whom, when and from where and for how long, rather than in listening in to random conversations. But the French also record data from large American networks like Google and Facebook, the newspaper said.


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Justice Ginsburg Vows to Resist Pressure to Retire

Joan Biskupic has the scoop:

In a Reuters interview late on Tuesday, [Justice Ginsburg] vowed to resist any pressure to retire that might come from liberals who want to ensure that Democratic President Barack Obama can pick her successor before the November 2016 presidential election.

In her interview, Ginsburg referred to past liberal commentary [urging her to step down] and predicted, “That’s going to start up again.”
. . .

Brushing off political calculations, she said, “It really has to be, ‘Am I equipped to do the job?’ … I was so pleased that this year I couldn’t see that I was slipping in any respect.” She said she remains energized by her work as the senior liberal, a position she has held since 2010 when Justice John Paul Stevens retired, and calls being a justice “the best job in the world for a lawyer.”

She has previously said she wanted her tenure to at least match the nearly 23 years of Justice Louis Brandeis, which would get her to April 2016, and said she had a new “model” in Justice Stevens, who retired at age 90 after nearly 35 years on the bench.

Reinforcing the message that she might not leave before her health requires it, she mused of another former colleague, “I wonder if Sandra regrets stepping down when she did?”

Thanks to How Appealing for the link. […]

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Appellant’s Brief Filed in United States v. Auernheimer

Back in March, I blogged about my agreeing to work pro bono on a Third Circuit appeal, United States v. Auernheimer, that raises several critical questions about the scope of the computer crime laws. I spent part of May and most of the last month working on the brief, and I’m happy to say it was filed just a few moments ago.

You can read the brief here. My co-counsel on the brief are Hanni Fakhoury of the EFF, Marcia Hofmann, Tor Ekelend, and Mark Jaffe. I tend to think that briefs should speak for themselves, so I don’t plan to say a lot about it here. But I do think this case raises several foundational questions about the scope of the computer crime laws. At bottom, the case is about the freedom to surf the web. But once you get into the details, it’s also about several kinds of prosecutorial overreach: Circular theories that try to turn misdemeanors into felonies; an astonishing view of venue that would allow any AUSA anywhere to bring charges in their district for crimes having nothing to do with their district; and punitive sentences based largely on smoke and mirrors. And it’s all in there in a single case. That’s how I look at it, at least. As always, YMMV. Anyway, I invite readers to weigh on the case and the brief in the comment threads. […]

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Does the Government Need A Warrant to Attach A GPS Device to A Government Employee’s Car To Monitor Workplace Misconduct?

Today the New York Court of Appeals (the state’s highest court) addressed a novel Fourth Amendment question in Cunninghman v. Department of Labor: If the state suspects that a government employee is submitting false time reports, can it attach a GPS device to the employee’s private car without a warrant in order to track the location of the car to find out when the employee is actually at work?

In an opinion by Judge Smith, the Court concludes that the state can do that in some cases but not in others. Specifically, the government needs suspicion that the employee is engaged in misconduct, and it cannot monitor the location of the car for too long beyond workplace hours. The Court reaches that result by first concluding that the relaxed government workplace rules of O’Connor v. Ortega, 480 U.S. 709 (1987), apply to GPS surveillance of a private car used during workplace hours “to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.” Ortega requires a general reasonableness balancing: A search of a government workplace must be justified at its inception and justified in its scope. The Court rules that the GPS monitoring in this case was not justified in its scope because it monitored him for too long outside of workplace hours. From the opinion:

We cannot find, however, that this search was reasonable in its scope. It was, in the words of the T.L.O. Court quoted in O’Connor, “excessively intrusive.” It examined much activity with which the State had no legitimate concern — i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an


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It Was Time

This week the Supreme Court struck down a significant federal law. The law was popular when it was enacted, not that long ago, but times have quickly changed and we’re in a different world. By a 5-4 vote, reflecting the usual right/left split, the Court decided that it was time for that law to go. The Court invoked federalism to get there, reasoning that the federal government was overreaching into an area traditionally regulated by the states that was appropriately reserved to the states. And so the power has been returned to the states, at least for now.

But here’s the question: Am I describing Windsor v. United States, Shelby County v. Holder, or both? […]

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A Punt, But For How Long?

Today the Supreme Court punted on the basic question of whether there is a constitutional right to same-sex marriage. But I doubt it will be long before the issue comes back to them. There’s lots of language in Windsor strongly hinting that a majority of the current Court would (eventually) hold that such a right exists. New suits will be filed in many states pretty soon, both in federal court and state court. I suspect most trial judges will treat the issue as one of law rather than as one of fact (contra Vaughn Walker), leading to pretty quick initial decisions. Red states will defend their laws on appeal, solving the standing problem. And the four liberal Justices can get cert granted in any of the cases if they think Kennedy is ready. So the issue may be back on the Supreme Court’s docket in just a few years. And at least based on Windsor, it seems more likely than not that the votes will be there (assuming no change in personnel) to hold that there is a constitutional right to same-sex marriage. […]

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