Hawkeye Area ACLU

Scholars Reject Obama's Stance on Warrantless Cell-Phone Records

David Kravets of Wired

The Obama administration's position that the government can force mobile carriers to hand over cellphone tower location information on their customers without a warrant is wrong, two legal scholars say.

"Because CSLI acquisition is hidden, indiscriminate and intrusive, and because it reveals information over a period of time, it should be subject to the highest level of Fourth Amendment oversight (the same procedures used for wiretapping and video surveillance)," the scholars wrote late Friday.

It's Time to Drop the 'Expectation of Privacy' Test

Commentary by Bruce Schneier on Wired

In the United States, the concept of "expectation of privacy" matters because it's the constitutional test, based on the Fourth Amendment, that governs when and how the government can invade your privacy.

Based on the 1967 Katz v. United States Supreme Court decision, this test actually has two parts. First, the government's action can't contravene an individual's subjective expectation of privacy; and second, that expectation of privacy must be one that society in general recognizes as reasonable. That second part isn't based on anything like polling data; it is more of a normative idea of what level of privacy people should be allowed to expect, given the competing importance of personal privacy on one hand and the government's interest in public safety on the other.

The problem is, in today's information society, that definition test will rapidly leave us with no privacy at all.

ACLU: Obama State Secrets Claim Sets Bad Precedent

Human Rights Lawyer Warns Of Repercussions As Obama Maintains Bush Defense In Rendition Case
Q&A: Ben Wizner on NationalJournal.com

Human rights and civil liberties groups reacted with both outrage and incredulity upon learning that President Obama's Justice Department had decided to maintain its predecessor's invocation of the state secrets privilege in Mohamed v. Jeppesen DataPlan Inc., a lawsuit brought by the American Civil Liberties Union against a Boeing subsidiary accused of helping the CIA carry out extraordinary renditions. Ben Wizner, an ACLU attorney who is currently working on this case, argues that by not pushing back harder against controversial Bush administration policies, Obama is leaving the door open for future executive branch abuses of power.

In an interview with NationalJournal.com's Amy Harder, Wizner discussed the implications of the Jeppesen case and the impact that legislation recently introduced in Congress could have on the state secrets privilege. Edited excerpts follow. For a differing take on this issue, read our accompanying interview with Ken Gude, a national security law expert at the Center For American Progress.