No surprise there, given the outlandish reasoning of the panel decision in United States v. Blewett.
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 […]
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. […]
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” […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
“NSA Surveillance Leaks: Fact and Fiction”
Here’s a very interesting panel from earlier in the week in the NSA surveillance programs. I was particularly interested to hear the perspective of Robert Litt, the General Counsel of the Office of the DNI, who begins at the 15:20 mark. Thanks to the LawFare blog for the link.
More Classified Documents Released by The Guardian
From the latest classified document release at The Guardian: A top-secret 2009 report by the NSA Inspector General about NSA surveillance and a secret 2007 DOJ memo on some of the legal issues raised by such surveillance. Wow, there’s a lot in there.
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 […]
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. […]
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 […]