Computers, Privacy, & the Constitution

Professor Eben Moglen

Columbia Law School, Spring 2006


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My office hours are Wednesday 11-12, and Thursday, 3-4. in JG642, and by appointment at other times. Please email me for an appointment, or consult my assistant, Kristie Hart, Room 603A, x42656.

On April 13, at last, we wil be ready to discuss the NSA Domestic Surveillance situation. Please read what's On the Radar in addition to past readings in Part Four.


On the Radar

NSA Domestic Surveillance - Collaboration with AT&T and Other Telcos

Background

Josh Meyer & Joseph Menn, U.S. Spying is Much Wider, Some Suspect, LA Times (archived at libertypost.org), December 26, 2005

Ryan Singel, AT&T Sued Over NSA Eavesdropping, Wired News, January 31, 2006

Declan McCullagh, AT&T sued over NSA spy program, C|Net News, January 31, 2006

Declan McCullagh & Anne Broache, Some companies helped the NSA, but which?, C|Net News, February 6, 2006

Declan McCullagh & Anne Broache, NSA eavesdropping: How it might work, C|Net News, February 7, 2006

Declan McCullagh, Yahoo on NSA surveillance: No comment, C|Net News, February 15, 2006

Bruce Schneier, AT&T's 1.9-Trillion-Call Database, Schneier on Security Blog, March 3, 2006

Ryan Singel, A Pretty Good Way to Foil the NSA, Wired News, April 3, 2006

Declan McCullagh, AT&T whistleblower claims to document illegal NSA surveillance, C|Net Politics Blog, April 6, 2006

Ryan Singel, Whistle-Blower Outs NSA Spy Room, Wired News, April 7, 2006

Whistleblower outs NSA's secret spy room at AT&T, Spam Daily News, April 8, 2006

EFF Lawsuit against AT&T

Press Release, EFF Files Evidence in Motion to Stop AT&T's Dragnet Surveillance, EFF.org, April 6, 2006

EFF, Motion to Lodge Under Temporary Seal, April 5, 2006

For up-to-date legal documents and press releases, see EFF's Class-Action Lawsuit Against AT&T for Collaboration with Illegal Domestic Spying Program.

State Secrets Privilege

United States v. Reynolds, 345 U.S. 1 (1953)

Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998)

Kevin Poulsen, Secrecy Power Sinks Patent Case, Wired News, September 20, 2005


Part One: Speech, Press, Assembly

Theory

Lawrence Lessig, Reading the Constitution in Cyberspace, 43 Emory L.J. (1996)

Potter Stewart, "Or of the Press," 26 Hastings L.J. 631 (1975)

Jay Rosen, Bloggers v. Journalists is Over, PressThink, January 15, 2005

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)

Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)

Reno v. ACLU, 521 U.S. 844 (1997)

Speech that induces unlawful conduct

Brandenburg v. Ohio, 395 U.S. 444 (1969)

Speech that provokes a hostile audience reaction

Feiner v. New York, 340 U.S. 315 (1951)

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Speech that discloses confidential information

New York Times Co. v United States, 403 U.S. 713 (1971)

Libel

New York Times v. Sullivan, 376 U.S. 254 (1964)

Public fora

Hague v. CIO, 307 U.S. 496 (1939)

DVD cases

Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000)

Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001)

Municipal Wi-Fi

Philadelphia's Municipal Wi-Fi Plan

Wireless Philadelphia to Provide Free Internet, Access to Education, IP|Links, September 8, 2004

Lobbyists try to kill Philly wireless plan, MSNBC News, Nov. 23, 2004

Declan McCullagh, Philly, Verizon reach accord on city Wi-Fi plan, C|Net News.com, Dec. 1, 2004

Dianah Neff, Hands off our Wi-Fi network!, C|Net News.com, Feb. 10, 2005

Wi-Fi Plans & Legislation in Other States

Ben Charny, Wi-Fi goes (West) Hollywood, C|Net News.com, Jan. 4, 2005

Esme Vos, Nebraska Introduces Anti-Municipal Broadband Bill, MuniWireless.com, Jan. 18, 2005

Esme Vos, Texas Bill Restricts Municipal Broadband and More, MuniWireless.com, Feb. 15, 2005

Jim Hu, Indiana kills anti-muni broadband bill, C|Net News.com, Feb. 17, 2005

Esme Vos, Illinois Anti-Municipal Broadband Bill, MuniWireless.com, Feb. 21, 2005

Recent News & Blogs

MuniWireless, Reports on Municipal Wireless and Broadband Projects

Save Muni Wireless, Updated news on the Texas municipal wireless bill

Eric Griffith, Think Tank Trashes Municipal-Run Wireless, Wi-Fi Planet, Feb. 3, 2005

Lawrence Lessig, Why Your Broadband Sucks, Wired, March 2005

Net Neutrality

Paul Kapustka, Verizon Says Google, Microsoft Should Pay For Internet Apps, Information Week, January 5, 2006

Jeremy Pelofsky, Broadband, content firms fight over Net neutrality, Reuters, February 7, 2006

Marguerite Reardon, Without 'Net neutrality,' will consumers pay twice?, C|Net News, February 7, 2006

e-Postage

AOL, Yahoo Planning Postage Charges for Email, Consumer Affairs, February 5, 2006

Elinor Mills, Newsmaker: You've got (certified) mail!, C|Net News, February 13, 2006

Online Campaign Regulations

New FEC Regulation

Declan McCullagh, Election commission takes light touch with Net regs, C|Net News, March 24, 2006

Zachary A. Goldfarb & Thomas B. Edsall, Proposed FEC Rules Would Exempt Most Political Activity on Internet, Washington Post, March 25, 2006

Anne Broache, Feds approve liberal election rules for Net, C|Net News, March 27, 2006

AP, Net: A Political Free-for-All, Wired News, March 27, 2006

Vice Chairman Lenhard & Commissioner Weintraub, FEC Internet Rulemaking - Background and FAQ, Federal Election Commission, March 24, 2006

Draft of the Final Rule, Federal Election Commission, March 24, 2006

Amendments to the Final Rule, Federal Election Commission, March 27, 206

For additional information, the complete rulemaking record is located here.

H.R. 1606 (the "Online Freedom of Speech Act") and H.R. 4900

Rep. Hensarling (R-TX), H.R. 1606, To amend the Federal Election Campaign Act of 1971 to exclude communications over the Internet from the definition of public communication, introduced April 13, 2005

Rep. Allen (D-ME), H.R. 4900, To amend the Federal Election Campaign Act of 1971 to exclude certain communications made over the Internet from certain requirements of such Act, and for other purposes, introduced March 8, 2006

CDT, Comparison of the Impact on Small Speakers of H.R. 1606 and H.R. 4900, Center for Democracy and Technogloy, March 15, 2006

Leslie Harris & John Morris, Hensarling Bill Would Do Too Little, and Too Much, Center for Democracy and Technology, March 14, 2006

Various, Support for H.R. 4900; Opposition to H.R. 1606, Democracy 21, March 14, 2006

CDT, CDT Endorses Bill to Protect Political Speech Online, Center for Democracy and Technology, March 15, 2006

Kos, HR 1606, the debate, Daily Kos, March 15, 2006

Jerome Armstrong, HR 4900 doesn't look good for MyDD, My DD, March 18, 2006

CDT, CDT Commends FEC For Protecting Political Speakers, Center for Democracy and Technology, March 27, 2006

Various, Statement by Reform Groups on the Internet Regulation Adopted Today by the FEC, Democracy 21, March 27, 2006

Part Four: Surveillance, Search and Seizure

Additional Readings

NSA Surveillance Hearings

Eric Lichtblau, Top Aide Defends Domestic Spying, New York Times, February 7, 2006

Sen. Patrick Leahy, Statement, U.S. Senate Judiciary Committee Hearing on Wartime Executive Power and the NSA's Surveillance Authority, February 6, 2006

Alberto Gonzales, Prepared Testimony, U.S. Senate Judiciary Committee Hearing on Wartime Executive Power and the NSA's Surveillance Authority, February 6, 2006

Alberto Gonzales, Response to Questions from Chairman Specter, , February 6, 2006

A full transcript of the hearing is available here: Part I, Part II, Part III, Part IV

Greek Cell Phone Tapping

James Kanter, Greek cellphones tapped, International Herald Tribune, February 3, 2006

''Big Brother'' Wiretapped Greek Prime Ministerís Phone, Greek News, February 6, 2006

British Traffic Cameras

Mark Townsend & Paul Harris, Security role for traffic cameras, Guardian, February 9, 2003

Lester Haines, When is a speed camera not a speed camera?, The Register, November 10, 2003

Lester Haines, Speed camera clocks motorist at 406 mph, The Register, January 21, 2004

County's speed cameras set alight, BBC News, February 10, 2006

New cameras to 'cut road deaths', BBC News, February 13, 2006

Online Dating and Social Networking

Melody Joy Kramer, Forfeiting privacy, one post at a time, Daily Pennsylvanian.com, November 30, 2005

Jessi Hempel with Paula Lehman, The MySpace Generation , Business Week, December 12, 2005

Kristi Eaton, Social sites spark privacy concerns, ASU Web Devil, January 18, 2006

Nate Anderson, Google + Facebook + alcohol = trouble, Ars Technica, January 19, 2006

Rob Stafford, Why parents must mind MySpace, NBC Dateline, January 27, 2006

CBS, MySpace: Your Kids' Danger?, CBS Evening News, February 6, 2006

Lizette Alvarez, (Name Here) Is a Liar and a Cheat, New York Times, February 16, 2006

Theory

Olmstead v. United States, 277 U.S. 438 (1928)

Katz v. United States, 389 U.S. 347 (1967)

United States v. Knotts, 460 U.S. 276 (1983)

United States v. Moran, 2005 U.S. Dist. LEXIS 54 (N.D.N.Y., Jan. 5, 2005)

Kyllo v. United States, 533 U.S. 27 (2001)

General Electronic Tracking & Surveillance

Jay Stanley and Barry Steinhardt, Bigger Monster, Weaker Chains, The Growth of an American Surveillance Society, ACLU Technology and Liberty Program, January 2003

Cell Phones & GPS

Andrew Brandt, Soon, Your Cell Phone May Be Tracking You, PC World, April 2004

Hiawatha Bray, GPS spying may prove irresistible to police, Boston.com, January 17, 2005

Ryan Singel, U.S. Cell-Phone Tracking Clipped, Wired News, October 28, 2005

Electronic Frontier Foundation, Cellphone Tracking Cases (USA v. Pen Register), EFF.org, last updated December 21, 2005

Data Mining & Data Selling

Declan McCullagh, Perspective: the flip side of database snooping, C|Net News.com, February 7, 2005

Tom Owad, Data Mining 101: Finding Subversives with Amazon Wishlists, Applefritter.com, January 4, 2006

John Aravosis, AMERICAblog just bought General Wesley Clark's cell phone records for $89.95, AMERICAblog, January 12, 2006

Reuters, Agencies probing sales of cell phone data, C|Net News.com, January 14, 2006

RFID

Declan McCullagh, RFID Tags: Big Brother in small packages, C|Net News.com, January 13, 2003

Kim Zetter, School RFID Plan Gets an F, Wired News, Feb. 10, 2005

Jim Rapoza, Security Getting Trampled in the Rush to RFID, eWeek.com, Mar. 7, 2005

Jacqueline Emigh, Homeland Security Officials Refute RFID Reports, CIO Insight, Mar. 17, 2005

Jacqueline Emigh, RSA Finds More Flaws in RFID, eWeek.com, Mar. 23, 2005

Mark Baard, RFID Cards Get Spin Treatment, Wired News, Mar. 29, 2005

Government Subpoenas for Search Records

Declan McCullagh & Elinor Mills, Feds take porn fight to Google, C|Net News.com, January 19, 2006

Declan McCullagh, FAQ: What does the Google subpoena mean?, C|Net News.com, January 20, 2006

Reuters, Privacy experts condemn Google subpoena, C|Net News.com, January 20, 2006

Katie Hafner & Matt Richtel, Google Resists U.S. Subpoena of Search Data, New York Times, January 20, 2006

Katie Hafner, After Subpoenas, Internet Searches Give Some Pause, January 25, 2006

NSA Domestic Spying Program

Background

James Risen & Eric Lichtblau, Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say, New York Times, December 15, 2005

Dan Eggen, Bush Authorized Domestic Spying, Washington Post, December 16, 2005

Kelli Arena, Bush says he signed NSA wiretap order, CNN.com, December 17, 2005

CBS/AP, Bush Defends Domestic Spying, CBS News, January 1, 2006

Terry Frieden, Gonzales to testify on domestic spying, CNN.com, January 13, 2006

ACLU, ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law, ACLU.org, January 17, 2006

Center for Constitutional Rights, CCR Files Suit over NSA Domestic Spying Program, CCR-NY.org, January 17, 2006

Legal Documents

Asst. Attorney General William E. Moschella, DOJ Letter on Legal Authority for NSA Surveillance, December 22, 2005

Elizabeth B. Bazan & Jennifer K. Elsea, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Congressional Research Service, January 5, 2006

Law Professors and Former Government Officials, A Response to the Justice Department's Letter of December 22, 2005, January 9, 2006

ACLU, NSA Spying Complaint, January 17, 2006

CCR, NSA Complaint, January 17, 2006

Attorney General Alberto R. Gonzales, Legal Authorities Supporting the Activities of the National Security Agency Described by the President, DOJ White Paper, January 19, 2006

Part Six: Speedy and Public Trial

Theory

Speedy Trial

Klopfer v. North Carolina, 386 U.S. 213 (1967)

United States v. Marion, 404 U.S 307, (1971)

Public Trial

Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979)

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)

Seattle Times v. Rhinehart, 467 U.S. 20 (1984)

Confrontation of Witnesses

Coy v. Iowa, 487 U.S. 1012 (1988)

Maryland v. Craig, 497 U.S. 836 (1990)

Crawford v. Washington, 541 U.S. 36 (2004)

Right to Assistance of Counsel

Massiah v. United States, 377 U.S. 201 (1964)

Weatherford v. Bursey, 429 U.S. 545 (1977)

United States v. Henry, 447 U.S. 264 (1980)

Electronic Surveillance of Counsel

Black v. United States, 385 U.S. 26 (1966)

O'Brien v. United States, 386 U.S. 345 (1967)

Russo v. Byrne, 409 U.S. 1219 (1972)

Williamson v. United States, 405 U.S. 1026 (1972)

Heutsche v. United States, 414 U.S. 898 (1973)

Tierney v. United States, 410 U.S. 914 (1973)

Monitoring Attorney-Client Communications

George Lardner, Jr., U.S. Will Monitor Calls to Lawyers, Washington Post, November 9, 2001

Charlie Cassody & Cassandra Porsch, Government Monitoring of Attorney-Client Communications in Terrorism-Related Cases: Ethical Implications for Defense Attorneys, 17 Geo. J. Legal Ethics 681 (Summer 2004)

Bureau of Prisons - Final Rule, 28 CFR Parts 500 and 501, October 31, 2001

Safety of Judges

Teresa Schmedding and David Orrick, Bodies found in high-profile judge's home, MSNBC/Daily Herald.com, March 1, 2005

Al Swanson, Analysis: Threats against judges common, Washington Times.com, March 3, 2005

ABC7Chicago.com, Police say Chicago man killed Lefkow's family, ABC 7 Chicago, March 11, 2005

James Oliphant, More Killings Raise Court Safety Fears, LegalTimes.com, March 14, 2005

Tony Mauro, Judicial Conference: Security of Judges 'Gravest Concern', LegalTimes.com, March 15, 2005

Frank Main & Natascha Korecki, Lefkow killer used GPS to find her home, Chicago Sun-Times, March 16, 2005

Deborah Sontag, In Courts, Threats Have Become a Fact of Life, New York Times, March 20, 2005 (Registration required)

Parts Nine and Fourteen: All Privacy and Autonomy Rights Reserved

Theory

Griswold v. Connecticut, 381 U.S. 479 (Goldberg, J., concurring)

Laurence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, 1991

Rights to Privacy - Examples

Privacy Protections in State Constitutions, National Conference of State Legislatures

Spanish Constitution, Section 18, last amended 1992

Slovenia Constitution, Sections 35-38, last amended 2003

The Data Protection Directive, EU Directive 95/46/EC, October 24, 1995

Australian Privacy Act of 1988, Information Privacy Principles, Applies to government agencies

Australian Privacy Act Amendments of 2000, National Privacy Principles, Applies to private sector businesses

Stay tuned.....