1. The NSA hacks BIOSes. Indeed it does everything that it wants you to worry that the Chinese might do and more. The NSA even monitors certain online orders of computers so it can intercept the computers and modify them with BIOS-level or system-level spyware.
2. It’s possible to hack a MicroSD card — or indeed any flash storage device. I’m waiting to learn when the NSA does that too.
It takes a legal leap to do it, but U.S. District Court Judge Richard Leon ruled today that the NSA’s dragnet metadata collection program is likely a violation of the Fourth Amendment (the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”). It’s only ‘likely’ because this is a ruling on a request for a preliminary injunction, but there’s no doubt about the drift even on a very rushed read.
To get there Judge Leon has to take several steps, at least one of which will likely be controversial.
1. Judge Leon finds (some of) the plaintiffs have standing. I don’t think this will be the controversial part, although I commend the text around footnote 36, and especially footnote 36, to anyone who has doubts.
2. Judge Leon holds that the APA review is implicitly precluded by FISA and by the Patriot Act. Generally, courts do not find implied preclusion of the APA, and I never like it, but I do not think this will be the controversial part of this opinion.
3. Judge Leon holds that the collection and analysis of telephone metadata is a search. I think this obviously is the right answer on first principles. Doctrine makes it harder to reach that conclusion than it should. For starters, there’s the problem of the pen register precedents — the Supreme Court has said that installing and using a pen registers is not a search, and they collect pretty much the same data as does the NSA — just one line at a time, and for limited intervals. Doctrine does not make it easy to say that the scope and scale of the NSA’s activities are so transformative as to make Smith v. Maryland, 442 US 735 (1979) (pen register not a 4th Amendment search) inapplicable. But that’s what Judge Leon more or less does. He also relies, somewhat less persuasively, on the close relationship between the government and the carriers as far exceeding any reasonable expectation of erosion of privacy. Slightly more persuasive is the argument that technological change — the ways in which the data can be used — make it time to rethink Smith as does the change in the way we use phones — one mobile per person, instead of one fixed line phone in 90% of homes when Smith was decided. I think the most one can say here is that if the Supreme Court wants to revisit Smith as five Justices may have signaled in United States v. Jones, 132 S. Ct. 945 (2012) [Smith and Jones, what great names for privacy and mass surveillance cases!], then here’s the chance to do so.
4. Judge Leon rejects the ‘special needs’ exception to the Fourth Amendment. I think this exception is a mistake on principle, but again it’s doctrine. But here the doctrine is less helpful to the NSA, especially as it appears that it introduced no evidence — despite being invited to do so — as to the efficacy or utility of the bulk meta-date program. That might change, though, if the trial ever gets to the merits.
Incidentally, all the other trial courts that have addressed the bulk telephony metadata collection program ruled that it was legal.
Judge Leon stayed his own order pending appeal, which is certain. How timely that Obama’s new nominees to the D.C. Circuit will be on duty for the all-too-likely en banc!
Watch their lips. If they’re moving…
(Apologies if this auto-played; I had inconsistent results with different browsers. Embedding Daily Show links is harder than it should be.)
ScienceShot: First Example of Tool Use in Reptiles:
In what appears to be the first example of tool use among reptiles, researchers have discovered that both animals use twigs and sticks to attract nest-building birds. In 2007, behavioral ecologist Vladimir Dinets noticed that mugger crocodiles (Crocodylus palustris) at a zoo in India would balance small sticks on their snouts near a rookery where egrets compete for sticks to build their nests. Once, one of the crocs lunged at an egret that approached. Intrigued, Dinets studied alligators (Alligator mississippiensis) at four sites in Louisiana. The alligators put sticks on their snouts … much more frequently near egret rookeries and during the nest-building season, he and colleagues report online in Ethology Ecology & Evolution.
Arguably this shows gators and crocs have better sense when it comes to hunting than the NSA, which apparently spent millions of dollars spying on online gamers for fear terrorists might use World of Warcraft or Second Life as meeting sites. It was, for some reason, a very popular assignment all over the TLA world:
Meanwhile, the FBI, CIA, and the Defense Humint Service were all running human intelligence operations – undercover agents – within Second Life. In fact, so crowded were the virtual worlds with staff from the different agencies, that there was a need to try to “deconflict” their efforts – or, in other words, to make sure each agency wasn’t just duplicating what the others were doing.
Sticks would have been cheaper, and about as useful.
Jotwell Blenderlaw