Posts Tagged ‘FISA


Federal Judge Finds Warrantless Cell Phone Tracking Unconstitutional

It’s time for America to stop justifying the “Police State” that has developed over the past ten years and start asking our government about restoring some our freedoms that have been taken away under the disguise of “Fear”.

Federal Judge Finds Warrantless Cell Phone Tracking Unconstitutional


In August, we blogged about a court decision from the federal court in the Eastern District of New York that held that law enforcement agents are constitutionally obligated to get a warrant based on probable cause before obtaining historical cell phone location information. And in September, wewrote about an opinion from the 3rd Circuit Court of Appeals holding that judges may order the government to get a warrant based on probable cause for historical cell phone location information. However, the 3rd Circuit also held that judges are not obligated to require probable cause, and cautioned that they should only require the government to meet this high standard on rare occasions. Now another court has joined the fray. In a detailed opinion (PDF) citing documents obtained through litigation by the ACLU and Electronic Frontier Foundation, Judge Stephen Smith of the Southern District of Texas held that “warrantless disclosure of cell site data violates the Fourth Amendment.”

A few aspects of the opinion (PDF) are worth noting:

  • The government’s application appears to request historical location information for whenever the phone was turned on, not just when calls were made. According to Judge Smith, “the Government seeks continuous location data to track the target phone over a two month period, whether the phone was in active use or not.” This is notable because the cell tracking applications we have seen previously only sought location information for those moments when an individual actually made a phone call. The government is now asking for a great deal more information, and consequently its requests are now more invasive than we previously thought.
  • Cell phone tracking information is increasingly accurate. The opinion devotes many pages to explaining the ways in which cell tracking information has grown more accurate over time. In fact, it is because of these “refinements in location-based technology” that Judge Smith concludes that requests for cell tracking information trigger the Fourth Amendment’s warrant requirement.
  • The Fourth Amendment requires the government to get a warrant and show probable cause to obtain historical cell tracking information. The court reached this conclusion both because cell tracking reveals information about constitutionally protected spaces such as the home, and because the prolonged nature of such surveillance is very invasive. The court likened the records sought by the government to “a continuous reality TV show, exposing two months’ worth of a person’s movements, activities, and associations in relentless detail.”

As we have explained elsewhere, the ACLU agrees with Judge Smith that the government should be required to obtain a warrant and show probable cause before obtaining cell tracking information. As powerful new technologies enhance the ability of government agents to track our every move, it becomes all the more important that the courts hold the government to a rigorous standard before the government can access such sensitive information.




Is all this security really necessary or is there other motives?

Administration Pushes For Expanded Wiretapping Capabilities


According to a report in The New York Times today, the Obama administration will be submitting proposals to Congress next year seeking to expand its wiretapping capacity by overhauling the law requiring telecommunications companies to ensure their networks can be wiretapped.

The administration claims that Congress must rework the Communications Assistance to Law Enforcement Act (CALEA) – which compels telecommunications and broadband companies to ensure their services are wiretap-ready – in order to keep up with technological changes in the companies’ services. The administration is also asking that the government’s power to enforce compliance by companies with the law be strengthened. However, the government’s authority under CALEA to lawfully collect information from telecommunications and broadband companies is currently sufficient, as is its ability to enforce penalties for noncompliance.

In 2007 and 2008, in an analogous situation, the Bush administration pushed to “modernize” the Foreign Intelligence Surveillance Act (FISA) by claiming technological changes had made it more difficult for law enforcement and intelligence agencies to monitor foreign communications. The former administration successfully used the opportunity, under the guise of a technical fix, to radically expand the government’s power to monitor Americans’ international communications through passage of the FISA Amendments Act (FAA) in July 2008. The American Civil Liberties Union is challenging the constitutionality of the FAA in federal court. The case, Amnesty v. Blair, is currently on appeal before the U.S. Court of Appeals for the 2nd Circuit.

Source: ( from ACLU Newsroom



Administration Seeks Easy Access To Americans’ Private Online Communications

There are threats to our freedom, in the past, now and sadly forever in the future, but this dose not give any administration the right to violate individual freedoms.

The Obama administration is seeking to expand the government’s ability to conduct invasive surveillance online, according to a report in The New York Times today. According to the report, the administration is expected to submit legislation to Congress early next year that would mandate that all online communications services use technologies that would make it easier for the government to collect private communications and decode encrypted messages that Americans send over texting platforms, BlackBerries, social networking sites and other “peer to peer” communications software.(

My personal feelings are best echoed by FDR:
The only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over the government.
– Franklin Delano Roosevelt

The Toughest Decision a President has to make


icon_digg Our President has achieved a much needed start, over the past four short months, on rebuilding the functions of our government, as it was originally conceived by our forefathers, while returning our nation back to us, the common folks who comprise the mainstream of America.

Ahead, in my opinion, lies one of the most important aspects of the Presidency; deciding who sits on the Supreme Court.  As voters, we decide, at all levels, who represents us in our government, but only the President decides who is nominated as a Justice.  Since our country is governed by the “Rule of Law”, these nine Justices decisions affect our entire society and determine the way we live.

In an article, authored by Geoffrey Stone, entitled: “The Next Justice: What Obama Wants”, presented within the Huffington Post, Mr. Stone surmises these five factors will be especially important to President Obama:

  • High level of intellectual ability
  • Moderate liberal
  • A strong voice about the role of the Supreme Court
  • Build consensus within the Court
  • Diversity

All of which I concur with, especially the fifth item of the aforementioned, which I feel would be a woman, a Hispanic, or an African-American.

Everyone as their own opinions on the issues which need attending to, by the Supreme Court; myself I list the following, some of which are currently ongoing within the court while some, I’m sure, will come into focus within President Obama’s Administration:

  • I believe in an exacting separation between “church” and “state”.  During the Bush years there seemed to persist an interwoven connection between the two which divided Americans instead of bonding us.
  • I believe Guantanamo Bay (Camp Delta) must be closed and the incarcerated be confined in prison(s) located within the continental US.  Consider reviewing this posting, entitled: “What Makes Guantanamo Bay Special” authored by me, for additional details.
  • I believe those within the Bush Administration, responsible for authorizing “torture” should be accounted for.  This dose not necessarily mean imprisoned; instead the truth must be made available via the FOIA (pdf) so history can be documented correctly during this troubled chapter in our War on Terrorism.  Consider reviewing this posting, entitled: “Change Starts by Correcting the Past” and “Torturing Democracy – The Film”, both authored by me, for additional details.
  • I believe our current Patriot Act, especially the FISA amendment, will present itself before the court.  Surveillance of expats and retirees living abroad who are loyal Americans need not be included within unsupervised “data mining” operations.  Again consider reviewing this posting, entitled: “Time for Another Review of the Patriot Act” and “Going Beyond the Limits Surveillance” authored by me, for additional details.

As you can easily ascertain, my views are liberal, which is contrary to the notion that “the older you become, the more conservative your beliefs are”.

As for my recommendations of who should to become our next Supreme Court Justice, I’ll have to punt and save that for an additional posting, once all the “chatter” on the net has subsided. However, I do believe President Obama’s choice will either come from the First or Ninth Circuit Court of Appeals (map pdf).

Update 17 May09:

No Clamor for High Court Appointee to Be Woman, Minority
As in 2005, majority of Americans say gender, race, and ethnicity of appointee don’t matter
by Frank Newport | Gallup Polls

Despite the widely reported expectation that President Barack Obama will be looking for a qualified woman — perhaps from a minority racial or ethnic group — to fill the seat to be vacated by the retiring Justice David Souter, 64% of Americans say it doesn’t matter to them whether Obama appoints a woman, with slightly higher percentages saying the same about the appointment of a black or Hispanic.


Justice Sandra Day O’Connor announced her resignation from the Court in 2005 and was replaced by a man (Samuel Alito), meaning that the Court today includes only one female justice, Ruth Bader Ginsburg, who herself has been battling cancer. As a result, there has been much speculation that President Obama will almost certainly nominate a female justice to avoid the possibility that within the next several years, the Court would have nine male justices. Still, as was the case four years ago, when there were two vacancies on the court (after Chief Justice William Rehnquist passed away and before O’Connor’s seat was filled), there is very little demand from the American public that Obama replace Souter with a woman.

For sake of reference, the following postings are provided:

Current U.S. Supreme Court Justices (courtesy of Cornell University)

Supreme Court Appointment Process – Roles of the President – Judiciary Committee and Senate (pdf)

A Brief Overview of the Supreme Court (pdf)

Possible Supreme Court Candidates for Justice David Souter (

Senate Committee on the Judiciary: Supreme Court Nomination Hearings (1971 – forward)

Past members of the Supreme Court of the United States (pfd)

Related Newswires Articles on the Supreme Court

As always a YouTube video (this time somewhat dated) regarding the Supreme Court decision for a candidate from the White House.

White House Talks Supreme Court Justice Souter’s Replacement

After President Obama’s Announcement Of His Retirement – White House Talks About Supreme Court Justice Souter’s Replacement – 05/01/09


Going Beyond the Limits Surveillance


icon_digg9 Admittedly before 911 we were open to terrorists and we’ve paid dearly for our lacks and arrogant mistakes in many ways; loss of life of those involved in the twin towers attack, individual freedoms, increased taxes, the wars in Afghanistan and Iraq and international embarrassment on the Bush’s administration policies regarding torture to name a few.

However, we keep reading and hearing, for the past five years, how we’re “winning” the “War on Terror”, and reading an article such as this posted in the New York Times, entitled “N.S.A.’s Intercepts Exceed Limits Set by Congress”, authored by Eric Lichtblau and James Risen is disturbing to me.

I was taught and agree with the fact; we live in a country governed by the “Rule of Law”, which to me implies our laws were authored for one sole purpose and to prosecute those who break this intended law.  Not to use the congressional passed legislation to uncover personal information concerning individuals for storage in a National Database and used for unknown purposes.

Here are a few excerpts from the Post article which I feel are significant:

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

The Justice Department, in response to inquiries from The New York Times, acknowledged in a statement on Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.

The questions may not be settled yet. Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans’ privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them

After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority. Officials are still trying to determine how many violations may have occurred.

Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the agency had ignored civil liberties safeguards built into last year’s wiretapping law. “We have received notice of a serious issue involving the N.S.A., and we’ve begun inquiries into it,” a Congressional staff member said.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

Following is a video I produced during President Obama’s Presidential campaign, which I feel outlines the problems associated with the FISA legislation:

Senators Obama, Clinton, McCain – The Patriot Act

As one can surmise it is my personal feelings that in the coming November election we will be voting for Senators Obama, Clinton or McCain to be our next President. Also, it is my sincere hope that this newly elected president will restore many of the personal liberties, we as citizens of America have given up over the past eight years.

One example of surrendering our liberty, and for me the most important, is our Patriot Act. If I resided or visited a country outside the United States, and this country was on our country’s “watch” list, as being hostile to America; then I would fully support our current Patriot Act, has authored. But, me visiting a “friendly” country, to our nation and electronically communicating to my family, friends or work from this country, then I deem this an uncalled and unjustified surveillance an invasion of my privacy.

Over the past six months I have attempted to follow all the candidates closely through their web sites, televised debates (via the Internet wire services) and YouTube; but really do not have a clear understanding of their feelings on this issue. I am not expecting any direct response from any of these three aforementioned candidates, but would like clarification stated within their respective web sites’.

The video, produced by the ACLU and distributed by iTV presents our two governmental agencies that facilitate the usage of the Patriot Act and how it is implemented to monitor our electronic communications.

Updates 16 & 17 April 09:

U.S. Scales Back Domestic Spying
CBS News from AP

The Justice Department has reined in electronic surveillance by the National Security Agency after finding the agency had improperly accessed American phone calls and e-mails.

FISA Violated
TIME | Posted by Joe Klein

Those of us who supported FISA reform last year did so for two reasons: 1. There is a real need to monitor conversations terrorists may be having with their associates in the US and 2. There is a real need to set legal limits on the government’s ability to monitor those conversations, to make sure that every domestic target is approved by the FISA court, and to make sure that any innocents swept up in the data-mining process are protected and their names expunged from any list of suspects. Those who opposed the program believed–correctly–that, despite the safeguards, the potential for government violations was substantial.

NSA Spies On Americans Outside The Law
American Civil Liberties Union – ACLU

The National Security Agency (NSA) has been intercepting Americans’ emails and phone calls in recent months to an extent that exceeded even the overbroad limits permitted under the controversial spying legislation passed last summer. According to the New York Times, the NSA’s “overcollection” of American’ communications has been “significant and systemic.”

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