NSA: National Security vs. Individual Rights
2014; Taylor & Francis; Volume: 30; Issue: 1 Linguagem: Inglês
10.1080/02684527.2013.867221
ISSN1743-9019
Autores Tópico(s)Cybersecurity and Cyber Warfare Studies
ResumoAbstractThis paper draws on liberal communitarianism to analyze two National Security Agency programs: the bulk phone records collection program and PRISM. Specifically, the paper addresses the following questions: Does the threat to national security justify such programs? Can this threat be addressed through standard criminal procedures favored by civil libertarians? Are the programs effective? To what extent do they violate the privacy of American citizens? What are the rights of non-Americans with respect to the programs? Are the programs in line with the Constitution and the various laws that govern them? Is there sufficient accountability and oversight of these programs? AcknowledgementsI am indebted to Jesse Spafford for his extensive research assistance on this paper, as well as to Danielle Kerem for the research that she contributed.Notes1 To qualify as legal, the program is required to not target Americans. Thus, PRISM searches are carried out only when there is at least '51 percent confidence in a target's "foreignness"'. Timothy B. Lee, 'How Congress Unknowingly Legalized PRISM in 2007', The Washington Post, 6 June 2013 < http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/06/how-congress-unknowingly-legalized-prism-in-2007/>.2 See Amitai Etzioni, The New Golden Rule: Community and Morality in a Democratic Society (New York: Basic Books 1996).3 I have previously discussed this balance in the context of privacy and public health, public safety, sex offenders, and freedom of the press, among other rights. See Amitai Etzioni, The Limits of Privacy (New York: Basic Books 1999); Amitai Etzioni, 'The Privacy Merchants: What Is To Be Done?', Journal of Constitutional Law 14/4 (2012) pp.929–51; and Amitai Etzioni, How Patriotic is the Patriot Act?: Freedom Versus Security in the Age of Terrorism (New York: Routledge 2004).4 Gerald Gaus and Shane D. Courtland, 'Liberalism', in Edward N. Zalta (ed.) The Stanford Encyclopedia of Philosophy < http://plato.stanford.edu/entries/liberalism/>; also John Rawls, A Theory of Justice (Cambridge: Harvard University Press 1971).5 For example, Lee Kuan Yew, 'Jinken gaiko wa machigatteiru [Human Rights Diplomacy Is Wrong]', Shokun (September 1993), pp.140149; also Bilahari Kausikan, 'Asian versus "Universal" Human Rights', The Responsive Community 7/3 (Summer 1997).6 For a broader discussion of this strand of communitarianism, see Russell A. Fox, 'Confucian and Communitarian Responses to Liberal Democracy', The Review of Politics 59/3 (1997) pp.561–92; also Daniel Bell, 'Daniel Bell on Confucianism & Free Speech' < http://freespeechdebate.com/en/media/daniel-bell-on-confucianism-free-speech/>; and Francis Fukuyama, 'Confucianism and Democracy', Journal of Democracy 6/2 (1995) pp.20–33.7 Jed Rubenfeld, 'The Right of Privacy', Harvard Law Review 102/4 (1989) p.740. The development of a right to privacy with respect to torts dates back to 1890 with the publication of Warren and Brandeis' 'The Right to Privacy'. See Richard A. Posner, 'The Right of Privacy', Georgia Law Review 12/3 (1978) p.409; also Samuel D. Warren and Louis D. Brandeis, 'The Right to Privacy', Harvard Law Review 4/5 (1890) pp.193–220. The exact emergence of the notion of a Constitutional right to privacy is a bit more difficult to exactly pinpoint. For more genealogy of constitutional right, see William M. Beaney, 'The Constitutional Right to Privacy in the Supreme Court', The Supreme Court Review (1962) pp.212–51.8 Anthony Lewis, Freedom for the Thought We Hate: A Biography of the First Amendment (New York: Basic Books 2007) p.23.9 Black's Law Dictionary, 'What is Public Interest?' < http://thelawdictionary.org/public-interest/>.10 See, for example: United States v. Hartwell, 436 F.3d 174, 180 (3d Cir. Pa. 2006); also Skinner v. Railway Labor Executives' Association, 489 US 602 (1989); and National Treasury Employees Union v. Von Raab, 489 US 656 (1989).11New York Times Co. v. United States, 403 US 713 (1971).12United States v. Hartwell, 436 F.3d 174, 180 (3d Cir. Pa. 2006).13 See, for example, Bruce Schneier, 'It's Smart Politics to Exaggerate Terrorist Threats', CNN, 20 May 2013 < http://www.cnn.com/2013/05/20/opinion/schneier-security-politics/index.html>.14 See, for example, Randy E. Barnett, 'The NSA's Surveillance is Unconstitutional', The Wall Street Journal, 11 July 2013 < http://online.wsj.com/article/SB10001424127887323823004578593591276402574.html>; also Conor Friedersdorf, 'Lawbreaking at the NSA: Bring on a New Church Committee', The Atlantic, 16 August 2013 < http://www.theatlantic.com/politics/archive/2013/08/lawbreaking-at-the-nsa-bring-on-a-new-church-committee/278750/>.15 Frank Thorp and Carrie Dann, 'House Narrowly Votes down Move to Gut NSA Data-Collection Program', NBC News, 24 July 2013 < http://nbcpolitics.nbcnews.com/_news/2013/07/24/19658896-house-narrowly-votes-down-move-to-gut-nsa-data-collection-program?lite>.16 For example, 'President Obama's Dragnet', The New York Times, 6 June 2013 < http://www.nytimes.com/2013/06/07/opinion/president-obamas-dragnet.html?pagewanted = all>.17 Karen J. Greenberg, Susan Quatrone, et al., 'Terrorist Trial Report Card: September 11, 2001 – September 11, 2011', The Center on Law and Security, New York University School of Law < http://www.lawandsecurity.org/Portals/0/Documents/TTRC%20Ten%20Year%20Issue.pdf>.18 Anthony D. Romero, 'Terrorists are Criminals and Should be Tried in Civilian Court', US News & World Report, 16 February 2010 < http://www.usnews.com/opinion/articles/2010/02/16/terrorists-are-criminals-and-should-be-tried-in-civilian-court>.19 Paige Lavender, 'Eric Holder Defends Civilian Trials for Terrorists', The Huffington Post, 16 June 2011 < http://www.huffingtonpost.com/2011/06/16/eric-holder-civilian-trials-terrorism_n_878750.html>.20 Melanie Getreuer, 'Why Civilian Courts are Best for Terror Trials, Especially Boston Bombing Suspect', The Christian Science Monitor, 30 April 2013 < http://www.csmonitor.com/Commentary/Opinion/2013/0430/Why-civilian-courts-are-best-for-terror-trials-especially-Boston-bombing-suspect>.21 Barack Obama, 'Remarks by the President at the National Defense University', 23 May 2013, The White House Office of the Press Secretary < http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university>.22 Barack Obama, as quoted in 'Obama's Remarks at a News Conference', The New York Times, 9 August 2013 < http://www.nytimes.com/2013/08/10/us/politics/obamas-remarks-at-a-news-conference.html?pagewanted = all&_r = 0>.23 Mark Mazzetti, 'Interpol Asks Nations to Help Track Terror Suspects Freed in Prison Breaks', The New York Times, 3 August 2013 < http://www.nytimes.com/2013/08/04/world/interpol-issues-alert-on-prison-breaks-in-9-nations.html?_r = 0>.24 Hillary Clinton, 'America's Pacific Century', Foreign Policy < http://www.foreignpolicy.com/articles/2011/10/11/americas_pacific_century?print = yes&hidecomments = yes&page = full>.25 Douglas A. Pryer, 'The Rise of the Machines', Military Review (2013) p.17 < http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20130430_art005.pdf>.26 Lindsey Boerma, 'Al Qaeda Embassy Plot among "Most Specific and Credible Threats" since 9/11, McCaul Says', CBS News, 4 August 2013 < http://www.cbsnews.com/8301-3460_162-57596909/al-qaeda-embassy-plot-among-most-specific-and-credible-threats-since-9-11-mccaul-says/>.27 Katherine Zimmerman, 'Al Qaeda and its Affiliates in 2013', American Enterprise Institute, (2013) p.2 < http://www.criticalthreats.org/al-qaeda/al-qaeda-affiliates>.28 There is a debate regarding the nature of the relationship between Al Qaeda and what are often designated its subsidiaries. For more on this point, see Leah Farrall, 'Forward Focus: Assessing Al-Qaeda's In-Theater Capabilities', IHS Defense, Security and Risk Consulting (2012) pp.14–19 < http://allthingsct.files.wordpress.com/2012/03/janes-article-2012.pdf>.29 Oren Dorell, 'Al-Qaeda on the Run? No Way, Say Experts', USA Today, 6 August 2013 < http://www.usatoday.com/story/news/world/2013/08/06/al-qaeda-middle-east/2623475/>.30 Sara Carter, 'Al Qaeda Gaining Strength in Mali, North Africa', The Washington Times, 26 March 2013 < http://www.washingtontimes.com/news/2013/mar/26/key-mali-lawmaker-challenges-obama-on-al-qaida-thr/?page = all>. See also Sudarsan Raghavan, 'Nigerian Islamist Militants Return from Mali with Weapons, Skills', The Washington Post, 31 May 2013 < http://articles.washingtonpost.com/2013-05-31/world/39642133_1_northern-mali-boko-haram-nigerian-islamist>; and Adam Entous, Drew Hinshaw, and David Gauthier-Villars, 'Militants, Chased from Mali, Pose New Threats', The Wall Street Journal, 24 May 2013 < http://online.wsj.com/article/SB10001424127887323336104578503464066163002.html>.31 Zimmerman, 'Al Qaeda and its Affiliates in 2013', p.3.32The Economist, 'The Unquenchable Fire', 28 September 2013, pp.21–23.33 Zimmerman, 'Al Qaeda and its Affiliates in 2013', p.3.34 Ibid.35 Liz Sly, 'Al-Qaeda Expands in Syria via Islamic State', The Washington Post, 12 August 2013 < http://www.washingtonpost.com/world/al-qaeda-expands-in-syria-via-islamic-state/2013/08/12/3ef71a26-036a-11e3-9259-e2aafe5a5f84_story.html>.36 Ibid.37 For a detailed discussion of this point, see Paul K. Kerr and Mary Beth Nikitin, 'Pakistan's Nuclear Weapons: Proliferation and Security Issues', Congressional Research Service, RL34248, 19 March 2013 < http://www.fas.org/sgp/crs/nuke/RL34248.pdf>; and Amy F. Woolf, 'Nonstrategic Nuclear Weapons', Congressional Research Service, RL32572, 19 December 2012 < http://www.fas.org/sgp/crs/nuke/RL32572.pdf>38 Shaun Gregory, 'The Terrorist Threat to Pakistan's Nuclear Weapons', CTC Sentinel 2/7 15 July 2009 < http://www.ctc.usma.edu/posts/the-terrorist-threat-to-pakistan%E2%80%99s-nuclear-weapons>. See also Dean Nelson and Tom Hussain, 'Militants Attack Pakistan Nuclear Air Base', The Telegraph, 16 August 2012 < http://www.telegraph.co.uk/news/worldnews/asia/pakistan/9479041/Militants-attack-Pakistan-nuclear-air-base.html>; and Kapil Komireddi, 'Take Pakistan's Nukes, Please', Foreign Policy, 24 May 2011 < http://www.foreignpolicy.com/articles/2011/05/24/take_pakistans_nukes_please>.39 Adam Serwer, 'Holder Defends Civilian Courts', The American Prospect, 16 March 2010; Lavender, 'Eric Holder Defends Civilian Trials for Terrorists'; and The Associated Press, 'Eric Holder: Critics of Civilian Courts Handling Terrorism Cases "Are Simply Wrong"', The Huffington Post, 11 May 2013 < http://www.huffingtonpost.com/2013/05/11/eric-holder-terrorism-cases_n_3260432.html>.40 See Matthew Kroenig and Barry Pavel, 'How to Deter Terrorism', The Washington Quarterly 35/2 (2012) pp.21–36 < http://dx.doi.org/10.1080/0163660X.2012.665339>:'In contrast [to the Cold War], deterrence against terrorism can only be partial at best. The United States cannot deter all terrorist activity, but as long as Washington can deter certain types of terrorists from engaging in certain types of terrorist activity, deterrence can contribute to national security goals'.41 Robert Pape, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House 2006) chs.2, 5.42 Clearly jihadists do not have a monopoly on this type of fanaticism, and the American criminal court system handles domestic terrorists, like Wade Michael Page who killed six worshippers in a Sikh temple in 2012. But zealots such as these are also best dealt with in a preventative measure, and while they make up a tiny percentage of American criminals, they are a large part of the terrorist population, large enough to justify a different level of legal protection.43 Matthew Waxman writes that 'criminal justice also has a preventive component … criminal law is generally retrospective in focus, in that it addresses past acts' in 'Administrative Detention of Terrorists: Why Detain, and Detain Whom?', Journal of National Security Law and Policy 3 (2009) pp.12–13.44 Coleen Rowley, 'Memo to FBI Director Robert Mueller', 21 May 2002 < http://globalresearch.ca/articles/ROW205A.html>.45 The FBI 'provides guidance for law enforcement officers confronted with an emergency that may require interrogating a suspect held in custody about an imminent threat to public safety without providing Miranda warnings'. Carl A. Benoit, 'The "Public Safety" Exception to Miranda', FBI Law Enforcement Bulletin (2011) < http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest>.46 Lucian E. Dervan, 'The Surprising Lessons from Plea Bargaining in the Shadow of Terror', Georgia State University Law Review 27/2 (2011) pp.239–98.47 Lindsey Overton, 'Are Two Judicial Systems Better Than One? A Look at the Debate Between Military Tribunal Commissions v. Federal Civilian Trials in Terrorism Cases', Albany Government Law Review, 20 February 2010 < http://aglr.wordpress.com/2011/02/20/are-two-judicial-systems-better-than-one-a-look-at-the-debate-between-military-tribunal-commissions-v-federal-civilian-trials-in-terrorism-cases/>.48 See, for example, Jameel Jaffer, 'Needles are Harder to Find in Bigger Haystacks', The New York Times, 10 June 2013 < http://www.nytimes.com/roomfordebate/2013/06/09/is-the-nsa-surveillance-threat-real-or-imagined>; Ron Wyden and Mark Udall, 'Wyden, Udall Issue Statement on Effectiveness of Declassified NSA Programs', 19 June 2013 < http://www.wyden.senate.gov/news/press-releases/wyden-udall-issue-statement-on-effectiveness-of-declassified-nsa-programs>; Kevin Drum, 'The NSA's Massive Call Record Surveillance Program Barely Accomplishes Anything', Mother Jones, 31 July 2013 < http://www.motherjones.com/kevin-drum/2013/07/nsa-surveillance-call-record-program>; and Robert Zubrin, 'PRISM Costs Lives', National Review Online, 21 June 2013 < http://www.nationalreview.com/article/351622/prism-costs-lives-robert-zubrin>.49 Keith Alexander, as quoted in 'House Select Intelligence Committee Holds Hearing on Disclosure of National Security Agency Surveillance Programs', Federation of American Scientists, 18 June 2013 < https://www.fas.org/irp/congress/2013_hr/disclosure.pdf > pp.5, 11–13.50 Jaffer, 'Needles are Harder to Find in Bigger Haystacks'.51 Matthew Waxman, 'How to Measure the Value of NSA Programs?' Lawfare, 12 August 2013 < http://www.lawfareblog.com/2013/08/how-to-measure-the-value-of-nsa-programs/>.52 Wyden and Udall, 'Wyden, Udall Issue Statement on Effectiveness of Declassified NSA Programs'; also Drum, 'The NSA's Massive Call Record Surveillance Program Barely Accomplishes Anything'; and Josh Gerstein, 'The Metadata Muddle: How Effective is Call-Tracking?', Politico, 19 June 2013 < http://www.politico.com/story/2013/06/nsa-surveillance-93075.html>.53 Wyden and Udall, 'Wyden, Udall Issue Statement'; and Waxman, 'How to Measure the Value of NSA Programs?'.54 Peter L. Bergen, The Osama bin Laden I Know (NY: Free Press 2006) p.397; also Jason Burke and Ian Black, 'Al-Qaida: Tales from Bin Laden's volunteers', The Guardian, 10 September 2009 < http://www.theguardian.com/world/2009/sep/10/al-qaida-terrorism-bin-laden>; and Matthew Schofield, 'Osama bin Laden was Angry, Increasingly Irrelevant in Final Years, Letters Show', McClatchy, 3 May 2012 < http://www.mcclatchydc.com/2012/05/03/147573/letters-show-bin-laden-was-angry.html>.55 Peter Finn and Anne E. Kornblut, 'Al-Qaeda Couriers Provided Trail that Led to bin Laden', The Washington Post, 2 May 2011 < http://articles.washingtonpost.com/2011-05-02/national/35264458_1_al-qaeda-couriers-osama-bin-laden-abu-faraj>.56 Eric Schmitt and Michael S. Schmidt, 'Qaeda Plot Leak has Undermined US Intelligence', The New York Times, 30 September 2013, p.A1.57 Sibohan Gorman, Evan Perez, and Janet Hook, 'US Collects Vast Data Trove', The Wall Street Journal, 7 June 2013 < http://online.wsj.com/article/SB10001424127887324299104578529112289298922.html>.58 Dianne Feinstein, 'Make NSA Programs More Transparent', The Washington Post, 30 July 2013 < http://articles.washingtonpost.com/2013-07-30/opinions/40893423_1_nsa-analyst-national-security-agency-fisa-court>; also Bob Cesca, 'CNET Reporter Posts Wildly Inaccurate Yet Totally Viral "Bombshell" About NSA Eavesdropping', The Daily Banter, 16 June 2013 < http://thedailybanter.com/2013/06/cnet-reporter-posts-wildly-inaccurate-yet-totally-viral-bombshell-about-nsa-eavesdropping/>. Examples of critics include Glenn Greenwald, 'Fisa Court Oversight: A Look Inside a Secret and Empty Process', The Guardian, 18 June 2013 < http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy>; and Conor Friedersdorf, 'The NSA Scandal is All That: A Polite Rebuttal to Marc Ambinder', The Atlantic, 22 August 2013 < http://www.theatlantic.com/politics/archive/2013/08/the-nsa-scandal-is-em-all-that-em-a-polite-rebuttal-to-marc-ambinder/278886/>.59 Information voluntarily handed over to another party does not receive Fourth Amendment protection 'even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed': United States v. Miller, 425 US 435, 443 (1976). See also Orin Kerr, 'The Case for the Third Party Doctrine', Michigan Law Review 107 (2009) pp.561, 569–70. Earlier cases that built up this doctrine include Lee v. United States 343 US 747 (1952) and Couch v. United States 409 US 322 (1973).60Smithv. Maryland, 442 US 735 (1979).61 Robert Litt, 'General Counsel Litt's Remarks on Intelligence Collection', Council on Foreign Relations, 18 July 2013 < http://www.cfr.org/intelligence/general-counsel-litts-remarks-intelligence-collection/p31130?cid = rss-primarysources-general_counsel_litt_s_remarks-071813>.62 As Orin Kerr notes: 'The third-party doctrine is the Fourth Amendment rule scholars love to hate. It is the Lochner of search and seizure law, widely criticized as profoundly misguided … The verdict among commentators has been frequent and apparently unanimous: The third-party doctrine is not only wrong, but horribly wrong. Even many state court judges have agreed. Over a dozen state Supreme Courts have rejected the doctrine under parallel provisions of their state constitutions … Remarkably, even the US Supreme Court has never offered a clear argument in its favor. Many Supreme Court opinions have applied the doctrine; few have defended it'. Kerr, 'The Case for the Third Party Doctrine', pp.563–4. Though Kerr highlights the many criticisms of the doctrine, the cited paper attempts to defend the doctrine by defusing prominent criticism and presenting positive reasons for accepting the doctrine, e.g., it preserves the Fourth Amendment's technological neutrality and ensures its ex ante clarity.63 Matthew Tokson, 'Automation and the Fourth Amendment', Iowa Law Review 96 (2011) pp.581, 586.64 Greenwald, 'Fisa Court Oversight'. See also Friedersdorf, 'The NSA Scandal Is All That: A Polite Rebuttal to Marc Ambinder'.65 Amy Zegart, 'Real Spies, Fake Spies, NSA, and More: What My 2012 and 2013 National Polls Reveal', Lawfare, 7 November 2013 < http://www.lawfareblog.com/2013/11/real-spies-fake-spies-nsa-and-more-what-my-2012-and-2013-national-polls-reveal/>.66 Pew Research, 'Few See Adequate Limits on NSA Surveillance Programs', 26 July 2013 < http://www.people-press.org/2013/07/26/few-see-adequate-limits-on-nsa-surveillance-program/>.67 David Ignatius, 'NSA Weighs its Options', The Washington Post, 26 July 2013 < http://articles.washingtonpost.com/2013-07-26/opinions/40859128_1_national-security-agency-surveillance-programs-calling-records>.68 Ron Nixon, 'US Postal Service Logging All Mail for Law Enforcement', The New York Times, 3 July 2013 < http://www.nytimes.com/2013/07/04/us/monitoring-of-snail-mail.html?pagewanted = all>.69 The data retention policies of the US telecommunication giants vary from company to company and depending on the type of information. In 2011, the ACLU of North Carolina obtained through a FOIA request a chart created by the Department of Justice that details how long six major cellular service providers kept their data. Cell tower information was kept on a rolling one-year basis by Verizon; for 18–24 months by Sprint; and indefinitely since 2008 by AT&T. In contrast, the content of text messages was not retained at all by four of the companies, and kept for 3–5 days by Verizon and 90 days by Virgin Mobile (but only accessible to law enforcement with a warrant). See Allie Bohm, 'How Long Is Your Cell Phone Company Hanging On To Your Data?', American Civil Liberties Union, 28 September 2011 < http://www.aclu.org/blog/technology-and-liberty/how-long-your-cell-phone-company-hanging-your-data>. Similarly, on Washington Week with Gwen Ifill, Pete Williams said: 'the phone companies only keep this data for 30 to 90 days. They don't have any reason. There's no business reason for the phone company to keep six-month old phone records. So they throw it away. Unless the government gets it, it's not going to keep it'. See Pete Williams as quoted in 'Transcript', Washington Week with Gwen Ifill, 7 June 2013 < http://www.pbs.org/weta/washingtonweek/watch/transcript/39902>.70 Mike Rogers, '"This Week" Transcript: Sen. Dianne Feinstein and Rep. Mike Rogers', ABC This Week, 9 June 2013 < http://abcnews.go.com/Politics/week-transcript-sen-dianne-feinstein-rep-mike-rogers/story?id=19343314>.71 Legal Information Institute, 'Fourth Amendment', Cornell University Law School < http://www.law.cornell.edu/wex/fourth_amendment>(accessed 12 July 2013).72 American Civil Liberties Union 'ACLU Motion for Preliminary Injunction in ACLU v Clapper', (2013) p.4 < https://www.aclu.org/national-security/aclu-v-clapper-legal-documents>.73 Eve Brensike Primus, 'Disentangling Administrative Searches', Columbia Law Review 111 (2011) p.256 < http://www.columbialawreview.org/wp-content/uploads/2011/03/111-2_Primus.pdf>.74 Ibid., p.263.75Illinois v. Lidster, 540 US 419, 427 (2004).76 See: Michigan Department of State Police v. Sitz, 110 S. Ct. 2481 (1990).77 See: United States v. Hartwell, 436 F.3d 174, 180 (3d Cir. Pa. 2006); also Electronic Privacy Information Center v. United States Department of Homeland Security, 653 F.3d 1, 10–11 (D.C. Cir. 2011).78 Primus, 'Disentangling Administrative Searches', pp.263–4.79Michigan Department of State Police v. Sitz, 496 US at 455. And, in Illinois v. Lidster, the Court held that a traffic stop for the purposes of investigating a recent hit-and-run accident was permissible, as there was a favorable balance between Fourth Amendment when a court finds a favorable balance between 'the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty'. See, for example, Illinois v. Lidster, 540 US 419, 427 (2004) (quoting Brownv. Texas, 443 US 47, 51 (1979)). And in United States v. Hartwell, the Third Circuit Court of Appeals held that TSA screenings, despite lacking individualized suspicion and being conducted without a warrant, are permissible, as they further a key state interest in a way that was tailored to furthering that interest while also being minimally invasive. According to the court, 'preventing terrorist attacks on airplanes is of paramount importance' and thus, given the empirical evidence, screening checkpoints 'advance the public interest' in a way that no measure relying upon individualized suspicion could. See United States v. Hartwell, 436 F.3d 174, 180 (3d Cir. Pa. 2006). At the same time, the Court held that, in addition to protecting the public, the searches were 'minimally intrusive', as the procedures used 'were well-tailored to protect personal privacy, escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search. The search began when Hartwell simply passed through a magnetometer and had his bag x-rayed, two screenings that involved no physical touching'. TSA screening was also upheld on similar grounds in previous rulings, most notably United States v. Davis (United States v. Davis, 482 F.2d 893, 908) and United States v. Pulido-Baquerizo (United States v. Pulido-Baquerizo, 800 F.2d 899, 901).80 Jeffrey Rosen, 'The Naked Crowd: Balancing Privacy and Security in an Age of Terror', Arizona Law Review 46 (2004) p.613.81 United States Foreign Intelligence Surveillance Court, 'In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things From [Redacted]', American Civil Liberties Union (2013), pp.13–14 < https://www.aclu.org/files/assets/br13-09-primary-order.pdf>.82 Ibid., p.15.83 Ibid.84 Robert Litt, 'Privacy, Technology, & National Security: An Overview of Intelligence Collection', Brookings Institution, 19 July 2013 < http://www.dniindex.p/index.php/newsroom/speeches-and-interviews/195-speeches-interviews-2013/896-privacy,-technology-and-national-security-an-overview-of-intelligence-collection>.85 Charlie Savage, 'Senate Panel Presses NSA on Phone Logs', The New York Times, 31 July 2013 < http://www.nytimes.com/2013/08/01/us/nsa-surveillance.html?pagewanted = all>; also 'Section 215 White Paper', US Department of Justice, p.3 < http://www.nytimes.com/interactive/2013/08/10/us/politics/10obama-surveillance-documents.html?_r = 0>.86 United States Foreign Intelligence Surveillance Court, 'In Re Application of the Federal Bureau', p.7.87 'Section 215 White Paper', p.4.88 BBC, World News America, 16 December 2013.89 L. Gordon Crovitz, 'Snowden and His Fellow Fantasists', The Wall Street Journal, 25 November 2013, p.A15.90 See, for example, Mark Udall and Ron Wyden, 'The White House Should End the Bulk Collection of Americans' Phone Records', The Washington Post, 26 July 2013 < http://articles.washingtonpost.com/2013-07-26/opinions/40864658_1_phone-records-collection-program-americans>.91 United States Foreign Intelligence Surveillance Court, 'In Re Application of the Federal Bureau'.92 Marc Rotenberg and Chris Jay Hoofnagle, open letter to Reps. Adam Putnam and William Clay, Electronic Privacy Information Center, 25 March 2003 < http://epic.org/privacy/profiling/datamining3.25.03.html>; also Arshad Mohammed and Sara Kehaulani Goo, 'Government Increasingly Turning to Data Mining', The Washington Post, 15 June 2006 < http://www.washingtonpost.com/wp-dyn/content/article/2006/06/14/AR2006061402063.html>; and Heidi Boghosian, 'The Business of Surveillance', Human Rights Magazine 39 (2013) < http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/the_business_of_surveillance.html>.93 Christopher Slobogin, 'Government Data Mining and the Fourth Amendment', The University of Chicago Law Review 75 (2008) pp.317, 320.94 Ibid.95 Amitai Etzioni, 'The Bankruptcy of Liberalism and Conservatism', Political Science Quarterly 128/1 (2013) pp.39–66.96 Glenn Greenwald and Ewen MacAskill, 'NSA Prism Program Taps in to User Data of Apple, Google and Others', The Guardian, 6 June 2013 < http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data>.97 'Cover Letter and 2009 Report on the National Security Agency's Bulk Collection Program for USA PATRIOT Act Reauthorization', Office of the Director of National Intelligence, Washington, DC (2013) < http://www.dni.gov/files/documents/2009_CoverLetter_Report_Collection.pdf>.98 'Letters to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence Leadership regarding Section 702 Congressional White Paper "The Intelligence Community's Collection Programs Under Title VII of the Foreign Intelligence Surveillance Act", Office of the Director of National Intelligence', Washington, DC (2013), p.6 < http://www.dni.gov/files/documents/Ltr%20to%20HPSCI%20Chairman%20Rogers%20and%20Ranking%20Member%20Ruppersberger_Scan.pdf>.99 Greenwald and MacAskill, 'NSA Prism Program'. With respect to the Americans whose data is collected, the Washington Post reports that: 'The surveillance may not "intentionally target" an American, but the NSA can obtain the private communications of Americans as part of a request that officially "targets" a foreigner'. Timothy B. Lee, 'Here's Everything We Know about PRISM to Date', The Washington Post, 12 June 2013 < http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/12/heres-everything-we-know-about-prism-to-date/>.100 Litt, 'Privacy, Technology, & National Security: An Overview of Intelligence Collection'.101United States v. Verdugo-Urquidez, 856 F.2d 1214, 1218 (9th Cir. 1988).102 Ibid.103 It was initially unclear whether Verdugo would evolve into a general rule or a fact-specific finding, so I think a clarifying point is in order. In order to draw the conclusion that the finding does in fact limit Fourth Amendment rights this broadly, it would be necessary to also provide evidence that the finding has since been interpreted as a general rule rather than a fact-specific finding. A wide range of dissenting and concurring opinions written by the various justices has apparently 'muddied the water' and led Verdugo to be understood to apply in a 'diverse array' of situations.104 This is a reference to the eight Nazis who came entered the US via submarine with explosives and instructions to destroy vital war-time infrastructure. President Roosevelt set up a military commission for their prosecution. Stuart Taylor Jr., 'The Bill To Combat Terrorism Doesn't Go Far Enough', National Journal, 29 October 2001 < http://www.nationaljournal.com/magazine/legal-affairs-the-bill-to-combat-terrorism-doesn-39-t-go-far-enough-20011027>.105 Anderson makes a similar point. The constitutional rights and criminal protections granted to American citizens: 'have developed within a particular political community, and fundamentally reflect decisions about rights within a fundamentally domestic, democratic setting in
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