Author Archive | Orin Kerr

United States v. Councilman: This Time the Sky Really *Is* Falling:

In debates on Internet surveillance law, I often end up arguing that reports of privacy’s death have been greatly exagerrated. For example, I wrote a law review article in 2002 describing the effect of the USA Patriot Act on Internet surveillance law as The Big Brother That Isn’t. Two weeks ago, however, the First Circuit decided a case called United States v. Councilman that poses a very real threat to Internet privacy. There has been some press on the case already, but some writers and commentators have also suggested that the decision really isn’t a big deal. Declan’s take is representative of the no-big-deal school:

the folks who are most upset about this haven’t read the court’s opinion carefully, and those that have are discounting the ability of state law and tort sanctions to keep people in line. There are other mechanisms than just federal wiretapping law that can enforce good behavior.

I disagree with Declan, and thought it might be worth explaining why the Councilman decision is so dangerous.

First, a bit of background. Federal law protect e-mail privacy through two primary laws: the Wiretap Act, codified at 18 U.S.C. 2510-22, and the Stored Communications Act, 18 U.S.C. 2701-11. The Wiretap Act offers very strong protection against the real-time interception of telephone or Internet communications. If any one tries to step in and snoop on the contents of another person’s communications, they commit a federal felony offense unless one of several fairly narrow exceptions applies. If the government tries to do this, they need a super-search warrant called a Title III order. In contrast, the Stored Communications Act sets up lesser privacy protections for access to stored communications. First, the law is much narrower; it applies only to files held by particular providers, and has much broader exceptions. […]

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Intelligence Errors and the American Psyche:

Over the course of the last year, it has become increasingly apparent that the United States invaded a country the size of California based in part on a misunderstanding. Popular support for the war in Iraq was based in large part on the belief that Iraq was gathering weapons of mass destruction, which itself was based largely on U.S. intelligence reports. Although different people had different reasons to support the war, many thought we needed to go in to Iraq to make sure that Saddam didn’t pass off a nuke to Al-Qaeda.

According to this 500-page report from the Senate Select Committee on Intelligence (check out the 30-page summary of conclusions here), it turns out that the intelligence agencies were kinda off on that whole WMD thing. The report is quite damning, and suggests that our intelligence agencies failed us in a most remarkable way. Of course, it may turn out that Saddam was doing more than we now realize; it may also be true that the war in Iraq would have happened even without the intelligence failures. But at this point it looks at least plausible that “but for” the intelligence errors, no war would have occurred.

It’s easy for the importance of this to get lost in the politics of the moment. For opponents of the Bush Administration, the intelligence failures are a sign of Bush’s incompetence (and another reason to vote against Bush). For Bush supporters, they are old news that matter less than what to do now that we are in Iraq (and provide no reason to vote against Bush). But I wonder: short-term politics aside, what are the long-term implications of the intelligence errors on the American psyche? I don’t know the answer; I’m afraid that this is more a question-asking post than […]

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