NSA Axes “About” Collection: Win for Privacy Advocates, Loss for Us All?

–by Taylor Henry

Abstract:

This article discusses the NSA’s recent policy change to its electronic surveillance program, under Section 702 of the FISA Amendments Act (FAA), to stop collecting electronic communications that are “about” its targets. This policy change should result in the collection of fewer communications that are purely between American citizens, but it also may have a detrimental effect on Section 702’s use as a counterterrorism tool.

Citations:

FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified in scattered sections of 50 U.S.C.); Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 10 (2014), https://www.pclob.gov/library/702-Report.pdf; Tim Cushing, NSA Makes Pitch for Section 702 Approval While its 702 Requests Aren’t Being Approved by the Court, techdirt (Apr. 27, 2017, 10:45 AM), https://www.techdirt.com/articles/20170424/16521837225/nsa-makes-pitch-section-702-approval-while-702-requests-arent-being-approved-court.shtml; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2016, U.S. Courts (2016), http://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2016_final_0.pdf; Robert Chesney, Can NSA Drop “About” Collection Without Gutting “To/From” Collection?, Lawfare (Apr. 28, 2017), https://lawfareblog.com/can-nsa-drop-about-collection-without-gutting-tofrom-collection; Charlie Savage, N.S.A. Halts Collection of Americans’ Emails About Foreign Targets, N.Y. Times (Apr. 28, 2017), https://www.nytimes.com/2017/04/28/us/politics/nsa-surveillance-terrorism-privacy.html?_r=0; Press Release, NSA, NSA Stops Certain Foreign Intelligence Collection Activities Under Section 702 (Apr. 28, 2017), https://www.nsa.gov/news-features/press-room/press-releases/2017/nsa-stops-certain-702-activites.shtml; Statement of Elizabeth Goitein, U.S. House of Representatives Committee on the Judiciary (Mar. 1, 2017), https://judiciary.house.gov/wp-content/uploads/2017/02/Goitein-Testimony.pdf.

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Although most Americans recognize the name Edward Snowden, few are likely to recognize the name of a government program that is responsible for the collection of hundreds of millions of electronic communications per year. This program, Section 702 of the FISA Amendments Act (FAA), has recently undergone an abrupt and dramatic policy change that has significant consequences for the reauthorization of the FAA, which is set to expire in December 2017.

Section 702 is a complicated but crucial intelligence-gathering tool, as it authorizes electronic surveillance conducted by the National Security Agency (NSA). Essentially, the NSA collects the contents of electronic communications, including emails and text messages, where the “target” is reasonably believed to be a non-U.S. person located outside the United States. “U.S. persons” include U.S. citizens, U.S. permanent residents, and virtually all U.S. corporations. Therefore, the government cannot use Section 702 to intentionally spy on American citizens located in the U.S., or anyone located within the U.S., and the targeting must be done with the purpose of acquiring foreign intelligence information.

This statutory limitation has not shielded Section 702 from criticism by privacy advocates and national security experts. In reality, countless Americans’ communications are swept up in 702 collection, stored by the government, and can be “queried” by government agencies. This phenomenon is called incidental U.S. person collection. It can occur when a U.S. person is communicating with a non-U.S. person who has been targeted, or when two non-U.S. persons are discussing a U.S. person. Because a U.S. person was not intentionally targeted by the NSA, this collection is lawful under 702, and the information may be utilized by the government.

Another important aspect of the Section 702 program is querying. “Querying” occurs when a government analyst searches 702 collected data with identifiers, such as an email address. The most problematic aspect of 702 collection is arguably the FBI’s ability to query 702 data to find evidence of domestic crimes, which many privacy advocates have criticized as being a “backdoor loophole” around the Fourth Amendment warrant requirement. This is because a probable cause warrant is not required for electronic surveillance under Section 702.

Each year, the government provides the Foreign Intelligence Surveillance Court (FISC) with its targeting and minimization procedures, which FISC then approves. Unlike the warrants used by domestic law enforcement, 702 certifications are not individualized and are not required to meet any probable cause standard. FISC is only required to approve the targeting and minimization procedures.

The FISC releases the amount of certifications it grants each year. This year’s annual report disclosed that the FISC had not approved any 702 certifications yet, even though the current 702 certification had expired.  It wasn’t until a few days later that the New York Times reported that the FISC had been dragging its feet because the NSA had self-reported several inadvertent “compliance incidents.” In response to the FISC’s reluctance, the NSA announced that it would end a particularly controversial part of the 702 program: “about” collection.

“About” collection occurs when the NSA obtains communications where neither the sender nor receipt is a target of collection. “About” collection is controversial because of the relatively high risk that such collection will result in acquiring purely domestic communications. Neither the individual involved, nor the conversation held is required to be a target in order for the collection to be lawfully acquired by the NSA, so long as some part of the content of the communication mentions a target identifier. When put in context within the broad scope of Section 702–that it is not technically limited to counterterrorism efforts–“about collection” means that emails could be lawfully collected when they concern the “merits of [NAFTA] or whether the United States should build a wall along the border with Mexico,” simply because such conversations “relate[] to the conduct of foreign affairs.”

While this policy change sounds like a win for everyone, there is reason to be concerned by this change. Section 702 is a counterterrorism tool that is frequently used by the government. The NSA estimates that over 25% of its reports concerning international terrorism include information based on Section 702 collection. However, until this recent elimination of the “about collection,” the NSA had maintained that it was impossible to stop collecting “about” communications without eliminating a substantial amount of the “to/from” communications it seeks.

In its press release, the NSA noted that this limitation still exists, but that it is outweighed by privacy concerns. While some national security experts are concerned about how this change might lessen the effectiveness of Section 702 as a counterterrorism tool, this policy will certainly be a topic of discussion in Congress’ up

New York’s Highest Court Requires Hearings for Final Child Custody Determinations

–by Shannon Mumaw

Sources:

S.L. v. J.R., 56 N.E.3d 193 (2016); Daniel Leddy, Major Custody Ruling by New York’s Highest Court, silive.com (June 20, 2016, 12:17 PM), http://www.silive.com/opinion/danielleddy/index.ssf/2016/06/major_custody_ruling_by_new_yo.html.

Abstract:

The New York Court of Appeals held that in general, final custody determinations should only be made after a full and complete evidentiary hearing.

***

Summary:

The mother and father, who were both attorneys, had been married for nearly fifteen years before the mother commenced divorce proceedings against the father and sought full custody of their two minor children. The father, who had left the marital home months before, returned to find that the mother had broken the windows and burned his clothes. The father filed an order to show cause seeking temporary sole legal custody of the children. In addition to incidents of harassment, the father alleged he feared for the children’s safety because the mother engaged in extramarital affairs and abused prescription medication and alcohol.

The trial level court granted the father temporary sole interim legal and physical custody with supervised visitation for the mother, which was later continued by the issuance of a second order. After a court-appointed forensic evaluator concluded that the father was the more “psychologically stable” parent, the court granted full custody to the father without a hearing. Additionally, the court suspended visitation for more than five months, noting that the mother “acknowledged her involvement in many incidents of disturbing behavior.”

In unanimously affirming the lower court’s decision, the Appellate Division, Second Department, held that although custody determinations “generally may only be made following a full and comprehensive evidentiary hearing . . . no hearing is necessary where, as here, ‘the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest.’”

On June 9, 2016, the New York Court of Appeals overturned the Appellate Division and held that final custody determinations should only be made after a full hearing is conducted. However, the court declined to fashion a catchall rule mandating a hearing in every case. In its opinion, the court stated that by applying the “undefined and imprecise ‘adequate relevant information’ standard,” the lower courts effectively relied on hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested. The court went on to say that such a standard does not adequately protect a parent’s fundamental right to control the upbringing of his or her child.

Further, the court held that taking into consideration the governing principle in all custody determinations­­—the best interest of the child—there are no absolutes; rather custody determinations must be entrusted to the discretion of the trial court.

Does Charging Bull Artist Arturo Di Modica have a Claim Under VARA?

–by Veronica Ramirez

Sources: Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 129 (1st Cir. 2006); 17 U.S.C. § 106A (2012); Leonard D. DuBoff, Christy A. King, Michael D. Murray, and James A.R. Nafziger, Art Law Deskbook: Vol. 1 Artists’ Rights in Intellectual Property, Moral Rights, and Freedom of Expression, Part 7 (Matthew Bender); Kriston Capps, Why Wall Street’s Charging Bull Sculptor Has No Real Case Against Fearless Girl, The Atlantic (Apr. 14, 2017), https://www.theatlantic.com/entertainment/archive/2017/04/wall-streets-charging-bull-sculptor-has-no-case-against-fearless-girl/523086/; History, Charging Bull,  http://chargingbull.com/chargingbull.html (last visited Apr. 29, 2017); Jamiles Lartey, ‘Charging Bull’ Sculptor Calls for New York to Remove ‘Fearless Girl’ Statue, The Guardian (Apr. 12, 2017, 3:00 PM) https://www.theguardian.com/us-news/2017/apr/12/charging-bull-artist-remove-fearless-girl-arturo-di-modica.

Abstract: On April 12, 2017, artist Arturo Di Modica stated that the “Fearless Girl” statue infringes on his artistic rights. Under the Visual Artists Rights Act (“VARA”), he may have a viable claim; however, because the “Fearless Girl” alters the message, and not the physical structure of the “Charging Bull,” it is unlikely that he would prevail.

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After the stock market crash of 1987, artist Arturo Di Modica spent two years creating a sculpture that symbolized the resilience of American people and the promise of a booming economy. On December 15, 1989, Di Modica erected the iconic “Charging Bull” sculpture outside of the Stock Market Exchange without a permit, at the foot of a then-installed Christmas tree, which quickly became a tourist attraction. The New York Stock Exchange removed the sculpture the next day.

Shortly after its removal, the “Charging Bull” was installed in a different Bowling Green location, where it still stands today. As of March 7, 2017, however, the “Charging Bull” shares the traffic island with a recently installed sculpture, the “Fearless Girl” by Kristen Visbal. Visbal, unlike Di Modica, was commissioned by State Street Global Advisors to spotlight the need for gender diversity at the leadership level on Wall Street. Like Di Modica, however, she erected “Fearless Girl” overnight on March 7, 2017, the day before International Women’s Day, as a temporary installation. The statue stands defiantly in front of the “Charging Bull,” and it is set to remain there until February 2018.

Taken together, both sculptures convey a different message than originally conceptualized. The meaning of the “Charging Bull,” a symbol of resilience, has been modified by the addition of the “Fearless Girl” and should be removed, according to Di Modica. Seeing as the statues share a traffic island in Bowling Green, the “Fearless Girl” represents the obstacles presented in a male-dominated field via the young girl confidently confronting the symbolic obstacle of the “Charging Bull.” Given this sudden shift in what the “Charging Bull” originally represented, Di Modica voiced that the “Fearless Girl” statue violates his copyright rights.

The legal basis for a claim like Di Modica’s falls under the Visual Artists Rights Act (“VARA”) of 1990, which, among other things, allows artists like Di Modica “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [the artist’s] reputation.” Works protected under this statute include works created after the statute’s enactment as well as works created before it that an artist still owns the copyrights to. Although Di Modica’s sculpture was created and installed in 1989, before VARA’s enactment, if Di Modica still owns the copyright or has not waived his rights, he could invoke VARA as a legal basis for his claim of copyright infringement.

Even if Di Modica does satisfy one of the requirements mentioned above, Di Modica is unlikely to prevail on the substance of his claim. In a press conference held on April 12, 2017, Di Modica’s attorney mentioned that the “Fearless Girl” was “incomplete without Mr. Di Modica’s Charging Bull, and as such it constitutes a derivative work.” Di Modica’s attorney also mentioned that the “Fearless Girl” statue was fearless because she stood in front of Di Modica’s “Charging Bull.” Thus, in Di Modica’s view, the “Fearless Girl” modifies his work.

Modification typically involves altering the work itself, such as partially covering a work of art. To date, federal courts have not considered whether a modification includes alterations external to a protected work’s surroundings, such as the installment of another statue in the same area. Since the “Fearless Girl” alters the message of the “Charging Bull,” but not the physical sculpture of the “Charging Bull,” it is unlikely that Di Modica could prevail on his claim.

Additionally, Di Modica’s claim raises an issue concerning site-specific art. Under VARA, site-specific art claims assert that the removal of a work of art from a particular place violates an artist’s rights. “In a work of ‘site-specific art,’ one of the component physical objects is the location of the art. To remove a work of site-specific art from its original site is to destroy it.”

Applying this to Di Modica’s situation, it is unlikely that Di Modica could prevail on his claim simply because his “Charging Bull” is being modified by another object in its vicinity, rather than being removed from its physical location. Since the “Charging Bull” is not being removed, the “Charging Bull” is not necessarily destroyed by the addition of the “Fearless Girl.” Additionally, if the Second Circuit adopts a similar view of indifference to that of the First Circuit in Phillips, then the site-specific argument may prove futile.

Ultimately, Di Modica’s attorneys have not filed suit, but they have requested information regarding the permits of the “Fearless Girl,” in addition to asking New York City Mayor Bill de Blasio to move the statue elsewhere. Di Modica and his attorneys are hoping to resolve this amicably, but they have not removed litigation from the table.