Edward Snowden: Whistleblower or Traitor?

1371935280000-AP-NSA-Surveillance-Snowden-1306221711_4_3_rx404_c534x401Earlier this month, I learned that as a Verizon Wireless customer, my cell phone records, and those of family, may very well be sitting in some National Security Agency (NSA) analyst’s cubicle.

According to The Guardian, which first reported the story June 5, Verizon is under a court order to turn over on an “ongoing, daily basis,” information such as “the numbers of both parties on a call . . . location data, call duration, unique identifiers, and the time and duration of all calls,” and more.  However, no subscriber’s personal information or contents of a call are covered by the order.

Shortly after the story broke, Edward Snowden, a 29-year-old former NSA contractor, came forward as the informant. Time Magazine quotes Snowden as saying, “The public needs to decide whether these programs and policies are right or wrong.” He has since been charged with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.  Snowden may currently be in Moscow and is rumored to be heading to Ecuador to seek political asylum there.

Because the information that Verizon turns over is considered metadata and not communications, the NSA needs no warrant to access it. Even so, by putting together enough metadata, one can fairly easily put together a profile of who is calling whom, for how long, and from where.  While no actual content is turned over to the NSA, the breadth of this program—code named PRISM—should frighten any American because the information is handed over wholesale; no probable cause or suspicion of wrongdoing needed.  And, boom.  The NSA is keeping tabs on you.

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Race, Gender and the Zimmerman Trial

Now that the selection of the jury has been completed, the trial of George Zimmerman for shooting African American teenager Trayvon Martin is even more likely to be the most racially charged trail since that of O.J. Simpson. What’s more, gender will now be important as well.

Much to the disappointment of Martin’s family and civil rights advocates, the jury will include absolutely no African Americans. In addition, none of the four alternate jurors are African American. According to census figures, Florida’s Seminole County, where the trial will take place, is 11% African American.

As recently as fifty years ago, Florida did not even allow women to serve on juries, but, in the Zimmerman trial, all of the jurors will be women. Five of the six jurors have children, and two of the four alternate jurors are also women with children.

In an ideal world, the race and gender of the jurors in a trial such as Zimmerman’s would make no difference. However, Jose Baez, lead counsel in the successful defense of Casey Anthony for killing her daughter Caylee, said the racial make-up of the Zimmerman jury made the case a “slam dunk” for the defense. Widener Law Professor Jules Epstein, meanwhile, argued that the female jurors would be especially sympathetic to the loss of a child and therefore would empathize with Martin’s grieving mother.

I lack the experience to make an intelligent prediction about either the outcome of the trial or the significance race and gender will have in that outcome. Nevertheless, I’m certain that considerations of race and gender will be important in the court of public opinion. Despite ideological pronouncements that all are equal in the eyes of the law, the American public does not take this to actually be true. Americans believe that race, gender, and wealth are major factors in what the legal system produces and invites us to take as “justice.”


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Life in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.

The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.

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