Readers following EPIC’s petition at the Supreme Court seeking review of the government’s telephony metadata program will be interested in this memorandum DOJ filed today in support of dismissing a complaint in a similar challenge brought by the ACLU in the South District of New York. The first ten pages of the government’s memorandum raise […]
Author Archive | Orin Kerr
Why the Government Doesn’t Know What Documents Snowden Copied
A lot of folks have wondered how the U.S. government couldn’t know what documents Edward Snowden illegally copied, and this AP story suggests an answer: The U.S. government’s efforts to determine which highly classified materials leaker Edward Snowden took from the National Security Agency have been frustrated by Snowden’s sophisticated efforts to cover his digital […]
The Supreme Court As Predictor of Future Preferences: A Reply to Sherry
This is a reply to Professor Sherry about her argument that courts should strike down more legislation. In her reply to my critique of that argument, she explains that that her mini empirical study was merely intended as confirmation that striking down more laws is good because public preference favors more rights over time. As […]
Swire Endorsed Position That NSA Telephony Metadata Program is Illegal
I mentioned in my post below that Peter Swire is like to be the civil libertarian on the 4-person Obama committee to review the NSA’s surveillance practices. Along those lines, I noticed that Swire co-signed this amicus brief filed a few weeks ago that argued that the NSA’s telephony metadata program is illegal under FISA’s […]
Not Exactly an “Outside” Committee to Review NSA Surveillance Programs
According to ABC News, the panel of “outside experts” picked by the Obama Administration to review the NSA surveillance programs consists of the following: Michael Morrell Richard Clarke Cass Sunstein Peter Swire Assuming that’s the whole group, it’s not exactly a list of “outside” experts. Morrell retired just two weeks ago from the CIA, where […]
The Overcollection Problem Identified in the 2011 FISC Opinion
The FISC’s newly-declassified 2011 Opinion on the NSA’s implementation of Section 702 surveillance is both dense and fascinating. In this post, I thought I would just bring readers up to speed on the basic factual problem identified in the opinion (at least to the extent I can understand it). In later posts, I’ll consider the […]
2011 FISC Opinion Invalidating Part of Section 702 Surveillance Program Released
The declassified and redacted opinion is here. I’m reading it now, and I hope to post some comments when I have finished. Meanwhile press coverage confirms my earlier suggestion that the problem was an overcollection problem. As the Post summarizes: Under the program, the NSA for three years diverted large volumes of international data passing […]
An Unhelpful Way to Measure the Consequences of Striking Down Versus Upholding Legislation: A Response to Sherry
Professor Suzanna Sherry recently posted an essay, Why We Need More Judicial Activism, arguing that we should encourage courts to strike down legislation because courts more often err by upholding legislation than by striking down legislation. The Green Bag put out a request for responses to Sherry’s article. I wrote up a response, but then […]
Speaking of Fourth Amendment History…
In light of my last post on Fourth Amendment originalism, I thought I would make two more comments — one a recommendation and the other a question. 1) Among those doing historical work on criminal procedure, I think one scholar’s historical work that is excellent and consistently “underplaced” is Wes Oliver of Duquesne (formerly of […]
Originalism and the Fourth Amendment
My co-blogger Randy Barnett raises some classic questions about originalism in his post below, Can Lawyers Ascertain the Original Meaning of the Constitution? Having spent some time trying to grapple with the original meaning of the Fourth Amendment specifically, especially in the course of writing this recent article, I thought I would offer some thoughts […]
Two Petitions on Searching Cell Phones Reach the Supreme Court
In recent weeks, two cert petitions have been filed seeking review of how the Fourth Amendment applies to searching a cell phone incident to arrest. Although the two cases raise the same legal issue, the facts of the two cases actually are pretty different. And the difference in the facts reflects the fast-moving evolution of […]
District Court Holds That Intentionally Circumventing IP Address Ban Is “Access Without Authorization” Under the CFAA
During the debate over the Aaron Swartz case, one of the legal issues was whether Swartz had committed an unauthorized access under the CFAA when he changed his IP address to circumvent IP address blocking imposed by system administrators trying to keep Swartz off the network. There was significantly more to the CFAA charges than […]
“NSA Broke Privacy Rules Thousands of Times Per Year, Audit Finds”
Bart Gellman has a big story at the Washington Post about another Snowden-leaked document, this time an internal NSA audit of some of its surveillance practices. Also of great interest is this internal document offering a description of the FISC opinion that found some of the NSA practices unconstitutional — apparently a problem with the […]
Lower Court Interpretations of Davis v. United States, 131 S.Ct. 2419 (2011).
In Davis v. United States, 131 S. Ct. 2419 (2011), the Supreme Court considered what remedies are available when appellate courts hand down Fourth Amendment rulings expanding Fourth Amendment rights beyond the state of prior caselaw. When that happens, the officer may have taken steps that were thought to be lawful at the time but […]
The Surprising Ages of the Founding Fathers on July 4, 1776
The numbers are here, via The Fed Soc twitter feed.