Privacy SOS

What you need to know about this week’s big civil liberties items

What a week for civil liberties! First, the good news.

On Monday, the Obama administration finally released a redacted version of the kill memo authorizing extrajudicial strikes on American citizen Anwar al Awlaki. The ACLU and the New York Times had been trying to get access to this memo for years. While calling it "a victory for transparency," ACLU attorney Jameel Jaffer writes that, despite the memo's release, we are still largely in the dark about the US drone program.

The American public will not be able to evaluate the lethal drone program without far more information:

  •     The government should disclose the list of countries in which it has carried out targeted killings.
  •     It should disclose records relating to bystander casualties, so that the public can judge for itself whether the government's targeting decision are as discriminating as the government says they are.
  •     It should disclose its investigative reports into past strikes – at least into those strikes that are reported to have resulted in bystander casualties.
  •     It should also disclose the OLC's other memos relating to the targeted-killing program – including the memos that relate to targets who are not American citizens. (The court that published the drone memo, notably, also ordered the government to submit other OLC memos for review and possible disclosure.)
  •     And it should disclose the factual record that led the OLC to conclude that the extrajudicial killing of Anwar al-Awlaki – again, an American citizen who was located far from any conventional battlefield – would be lawful.

But the release of the drone memo should not obscure the reality: we still know scandalously little about who the American government is killing, and why. Monday's ruling was a step forward – a gesture toward transparency – but unless it leads to much, much more from the drone files, it will be only that: a gesture.

Then on Tuesday, the ACLU released a report on police militarization, and received a huge victory in federal court. An Oregon US District Court found that the government’s no-fly list process is unconstitutional, and needs to be thoroughly reworked. As ACLU attorney Hina Shamsi put it,

For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court. Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people.

Finally, on Wednesday, the Supreme Court announced its ruling in Riley and Wurie, finding that the police must obtain a warrant before searching our cell phones incident to arrest. Justice Roberts wrote the opinion, to which his other eight colleagues signed on. As the ACLU's Steven Shapiro says, the ruling is "revolutionary," in part because it recognizes that "our old values still apply and limit the government's ability to rummage through the intimate details of our private lives."

As the Court held, the intimate details of our private lives are most often contained in the little devices we carry around with us everywhere.

"Modern cell phones are not just another technological convenience," Justice Roberts wrote.

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.

But it hasn't been all good news. It’s been a banner week in civil liberties thus far—with a couple of notable bleak spots.

Also this week, federal District Court Judge Garr M. King found the NSA’s warrantless content surveillance program is constitutional. The ruling is the first time a court has reached the merits on the question of whether Section 702 of the FISA Amendments Act violates the Fourth Amendment. In 2013, the Supreme Court stopped short of examining the law’s constitutionality, finding that because the ACLU’s clients in Amnesty v. Clapper couldn’t prove they were spied on under the statute, they didn’t have a right to challenge it.

Judge King: "I conclude the government’s compelling interest in protecting national security outweighs the intrusion of Section 702 surveillance on an individual’s privacy. Accordingly, Section 702, as applied to defendant, is reasonable under the Fourth Amendment."

Lastly, also on Wednesday, the Massachusetts Supreme Judicial Court held that the Fifth Amendment doesn't protect us when the cops order us to decrypt files on our computers. In Gelfgatt, the Court held that "The Commonwealth's motion to compel decryption does not violate the defendant's rights under the Fifth Amendment because the defendant is only telling the government what it already knows." Stay tuned for deeper analysis of this disappointing ruling.

© 2021 ACLU of Massachusetts.