"I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen..."

"... for purposes of querying and analyzing it without prior judicial approval... Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment."

Wrote Federal District Judge Richard J. Leon, a Bush appointee, in a case brought by Larry Klayman, a conservative activist, who is seeking to represent a class of all Americans.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

ADDED: Orin Kerr has some sharp analysis:

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Read the rest at the link.

The government can "imagine some people may be upset" but also that some "will be comforted and relieved at getting the help they need to navigate a confusing process."

The quotes are from Peter Lee, the executive director of California health exchange, about sending private insurance companies the contact information for individuals who started an application on  the website but did not complete the process.  They also did not agree to be contacted by insurance agents. This release of information was no accident, but a new program designed to get people signed up.

Some are upset by invasions of privacy, but others are comforted.

"A Manhattan man who sued because his real-life identity was outed on MTV's 'True Life: I'm a Chubby Chaser'..."

"... is fat out of luck, a Manhattan judge has ruled."

Tristan Watson and roommate Nadine Crosbie filed suit against the reality show's producers last year, claiming they were duped into thinking their home address would not be shown and that Watson would only be identified by the name "Tee" on the show, which focused on people who intentionally seek out extra-plump partners.

Of course, MTV makes anyone participating in this sort of show sign a written contract agreeing not to sue about anything, and the lawsuit was always doomed... which make you wonder why — if he were truly so troubled about getting outed — he'd sue, making his identity even more well known. I'd have never heard of this character if I hadn't seen this news report about the lawsuit. One must conclude that he wanted the publicity. He participated in the show, and then he drew even more attention to himself.

Watson claimed that he received a death threat "slipped under the front of his door of his apartment," but as the top comment says: "Why would he receive a death threat because he's a chubby chaser? That makes absolutely no sense." That question gets a funny reply: "maybe it was 'Fit Mom' threatening him, LOL."

(Do you know about "Fit Mom," the lady who got temporarily banned from Facebook for complaining about media boosting the self-esteem of fat people people of fatness?)

(That last link goes to Jezebel, where I am struggling very hard to resist the temptation to click on the "top story" in the sidebar: "The Epic, Disgusting Removal of a Blackhead 25 Years in the Making." Talk about the need for will power!)

Is it okay to photograph sleeping sunbathers...

... in Lithuania?

Interesting pics. One can't resist staring, but we're staring also into the soul of the photographer — Tadao Cern — who fancies himself a explorer into other people's "Comfort Zone."

"I understand people think there is a dilemma presented by a Web site where you can pay to have a mug shot removed."

"I understand that people don’t like to have their mug shots posted online. But it can’t be extortion as a matter of law because republishing something that has already been published is not extortion."

Said the lawyer for BustedMugshots and MugshotsOnline, 2 companies that are the target of a lawsuit brought on behalf of individuals displeased by the results of Google searches on their names.

The open-plan bathroom-bedroom.

"Is having open-plan bathrooms just the natural extension of our open kitchens and a general global modern-day tendency to open up our living spaces and live in lofts or loftlike spaces?"

Is it an extension of the idea that bathrooms aren’t just functional necessities but spa-like focal points of our sanctuary-like homes? Or has the erosion of privacy in our public lives just made us all more comfortable being overexposed, even at home?

I like it. No mention at the link of where the toilet is, and I assume it goes in a small space behind a door. If I'm right about that then it's about how someone bathing or shaving wants to be interacting with someone who's reading in bed or watching TV or whatever. It's similar to wanting the walls removed from your kitchen, so you can cook while hanging out with (or keeping an eye on) people in the next room.

ADDED: I've seen so many TV real estate reality shows where everyone wants an open-plan kitchen/dining/living room area that I can't help thinking it won't be long before that starts to look like what all the boring, conventional people have and they'll start tsking about how it's "dated," and the reality show designer will be amazing the clients by building walls.

I do a Bloggingheads with Glenn Loury that's ostensibly about whether Obama has weakened and what the NYC police are doing after stop and frisk.

The folks at Bloggingheads put it this way:

On The Glenn Show, Glenn and Ann check in on Obama a year into his second term. Has his vacillation on Syria and the Fed hurt his credibility? Ann argues that the Larry Summers controversy exposed an anti-science crowd on the left—but maybe a small dose of delusion is healthy. Turning to the end of NYC's stop-and-frisk program, Ann worries that emotions adulterated the public debate. Are liberal gun-control measures breeding a nation of victims? Finally, Glenn criticizes the secrecy of the security state under Obama.

There's an awful lot going on in that diavlog, and I think we talk past each other more than usual. "Ann worries that emotions adulterated the public debate" is a terrible summary of what I say. 

Go to the link if you want to hear the whole thing. I'll excerpt a part that deals with something I care about: the unlikelihood that anyone is really making truth their highest value.



I'm highlighting what I had to say, so click to continue the video when you get to the end of this clip if you want to hear Loury's response. The lead-up to this clip is about the trouble Larry Summers got into at Harvard when he suggested that there might be a biological explanation for the scarcity of females in the highest levels of math and science.

"Once there was a fight in the classroom, it was just you and that person who had a fight; now on social media, it’s 500,000 people looking at this fight."

"Why are you creating a unit to incriminate and criminalize what they’re doing and lock them up?"

A criticism — by the founder of an organization that works with teenagers — of the NYC police strategy dealing with gangs:

The strategy seeks to exploit the online postings of suspected members and their digital connections to build criminal conspiracy cases against whole groups that might otherwise take years of painstaking undercover work to penetrate. Facebook, officers like to say now, is the most reliable informer.


Operation Crew Cut melds intelligence gathered by officers on the street with online postings, allowing the department to track emerging conflicts in a neighborhood before they erupt into violence and, when shootings do occur, to build conspiracy cases against those responsible. But the scrutiny online has raised concern that idle chatter by teenagers might be misinterpreted by the police.

We're told that opposition to the "stop and frisk" tactic has led to this, but I find that a little hard to believe. Why wouldn't the police use both approaches if they could? Also, I wonder what the police are really doing, since publicly revealing a tactic is itself a tactic. From the above-linked NYT article:

Officers follow crew members on Twitter and Instagram, or friend them on Facebook, pretending to be young women to get around privacy settings that limit what can be seen. They listen to the lyrical taunts of local rap artists, some affiliated with crews, and watch YouTube for clues to past trouble and future conflicts. Party announcements posted to social media draw particular attention: officers scour the invitation lists, some of which explicitly include members of opposing crews, beseeching them to “leave the beef at home,” said Assistant Commissioner Kevin O’Connor, who heads a police unit focused on social media and youth gangs.

Presumably, the idea is to deter criminal activity by creating the impression that the police are everywhere. That's very easy to do, once everyone's gone on line for their friendship (and criminal conspiracy). I wonder how many police department employees have jobs that consist of reading kids' Facebook postings and analyzing rap lyrics. Do you think that's creepy/offensive surveillance or clever and important work? Do you think it's a good anti-crime tactic to paranoia amongst vast swaths of NYC teenagers who might otherwise socialize on line?

Let's talk about Drudge's depiction of Obama coming after us sexually.

The underlying story is about how the government is requiring all doctors to routinely ask patients: "Are you sexually active? If so, with one partner, multiple partners or same-sex partners?" They want complete records on these things, and I suppose they're hoping most people don't care about their privacy anymore.

But quite aside from that policy, what's with that picture of Obama? Is Drudge trying to make Obama look like a sexual predator? Are people accusing Drudge of racism yet? Maybe he's just trying to portray the Obama as desperately, insanely hungry for all your information. He's grasping at it with his clawing hand.

Back up a bit and look at the whole 3 columns. The other hand in view is Putin's, gently adjusting his mirrored sunglasses. We can see Obama's weird eyes — spying eyes — as he clumsily grabs for his own people's secrets, but Putin's eyes are hidden behind mirrored sunglasses, and he seems skillful and analytical as he peers into America's secrets.


Meanwhile, it's a "WOMAN'S WORLD: YELLEN SET TO CHAIR FED..." Yellen is looking more Putinesque, exhibiting a stern seriousness.

Look at the series of headlines under her. Surely subliminal messages are intended. Note: "END OF THE PUMP?" That goes to a story about the Fed's quantitative easing policy, but there's a sexual theme across the top of the 3 columns this morning, and with Putin intimidating us, Obama flailing and spying on us, and the dour Yellen leading us into a "Woman's World," the "end of the pump" inspires dread.

The end of sex... it's coming to get you.

"The city does not allow meals to be served to members of the public in someone’s home."

Illegal "supper clubs" in NYC.

Basically, these are dinner parties where guests pay. Something about exchanging money makes the private zone public, right? Like with prostitution.

"David Miranda was carrying password for secret files on piece of paper."

Reckless.

A level of concern for security lower than what I have for my Facebook page.

"We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now."

"We knew USG would come after us," says CEO Michael Janke.

It hadn’t been told to provide data to the government, but after Lavabit shut down today rather than be “complicit” with NSA spying, Silent Circle told customers it has killed off Silent Mail rather than risk their privacy....

Silent Circle reportedly had revenue increase 400% month-over-month in July after corporate enterprise customers switched to its services in hopes of avoiding surveillance. The company giddily told Forbes it planned to nearly double staff and significantly increase revenue this year in part thanks to the NSA’s practices coming to light.

I'm sure there's lots of money that could be collected for providing services that are impossible to provide, but that's the catch: The service is impossible to provide.

Charlie Rose interviews Obama about Iran, Syria, the NSA leaks, etc.

The 45-minute video.

"An extraordinary fuss about eavesdropping started in the spring of 1844..."

"... when Giuseppe Mazzini, an Italian exile in London, became convinced that the British government was opening his mail. Mazzini, a revolutionary who’d been thrown in jail in Genoa, imprisoned in Savona, sentenced to death in absentia, and arrested in Paris, was plotting the unification of the kingdoms of Italy and the founding of an Italian republic. He suspected that, in London, he’d been the victim of what he called 'post-office espionage': he believed that the Home Secretary, Sir James Graham, had ordered his mail to be opened, at the request of the Austrian Ambassador, who, like many people, feared what Mazzini hoped—that an insurrection in Italy would spark a series of revolutions across Europe. Mazzini knew how to find out: he put poppy seeds, strands of hair, and grains of sand into envelopes, sealed the envelopes with wax, and sent them, by post, to himself. When the letters arrived—still sealed—they contained no poppy seeds, no hair, and no grains of sand. Mazzini then had his friend Thomas Duncombe, a Member of Parliament, submit a petition to the House of Commons. Duncombe wanted to know if Graham really had ordered the opening of Mazzini’s mail. Was the British government in the business of prying into people’s private correspondence? Graham said the answer to that question was a secret."

So begins "The Prism: Privacy in an age of publicity," by Jill LePore at The New Yorker.

"National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls."

"That authorization appears to extend to e-mail and text messages too."

ADDED: Just because they can doesn't mean they do. You only have to trust thousands of analysts. Janet Napolitano says:

"I think people have gotten the idea that there’s an Orwellian state out there that somehow we’re operating in. That’s far from the case"....

"[T]here are lots of protections built into the system,” Ms. Napolitano said, pointing to a privacy office embedded in her own department that is “constantly reviewing our policies and procedures.” She further stressed the court review system.

“No one should believe that we are simply going willy-nilly and using any kind of data that we can gather,” she said...

So it's not simply going willy-nilly and using any kind of data and it's far from Orwellian. That is, it's something less than the ultimate extreme. That's not reassuring at all. Even if I take Napolitano at her word: She's not saying much. It's just not utter and complete abuse.

And what are the protections? There's a "privacy office." You know, in "1984," if there were something called the "Privacy Office," its job would be to invade our privacy.  (Recall "The Ministry of Truth.")

Who could possibly feel protected by Napolitano's own privacy office "constantly reviewing our policies and procedures"? That sounds — even as she puts it — like it's about seeing what they can get away with. She brings up judicial review, but we know that those courts have no power/inclination to stop anything the government says it needs to do.

ADDED: They can see you naked. 

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"I'm not sure which is worse: the NSA surveillance programs themselves..."

"... or the fact that the leaks about them have caused normally reasonable people to publicly commit themselves to so many strange notions in a desperate attempt to defend the Obama administration, e.g. 'The whole concept of privacy is obsolete,' 'Gathering data about phone calls doesn't raise serious privacy concerns,' 'Surveillance is unobjectionable if it's been going on for many years,' 'We don't have to worry about the 4th Amendment as long as a judge is willing to rubber-stamp the government's actions without any adversarial process,' etc."

"It turns out that the Gov't has no privacy either. So the joke is on them as much as it is on us."

Writes Richard Dolan in the comments to yesterday's post "Greenwald Says ‘There’s A Lot More Coming,’ Argues NSA Revelations Don’t Harm Security." Dolan continues (the boldface is mine):

The Gov't needs a giant bureaucracy to run its NSA and other 'data mining' projects, just as the State Dept and the IRS need giant bureaucracies to perform their functions. As recent events show, those Gov't agencies can't assure that their own secrets, their own attempts at controlling information, will succeed. Given the size of these bureaucracies, it seems quite unlikely that they possibly could.

In all the talk about how the citizenry is at the mercy of the Gov't's abuse of power, it pays to stop and note that the Gov't is also at the mercy of its own agents' abuse of their power -- the power to disclose, leak, or turn on the Man. So long as there is a market for the kinds of leaked information we are seeing -- not just the NSA stuff, but the State Dept report about shutting down investigations that CBS surfaced, to use just today's example -- these leaks will continue.

A comparison that comes to mind is the (failed) War on Drugs -- the market for illegal drugs doomed that War even before it got going, just as the market for illicitly leaked information will doom the Gov't's attempt to keep its own secrets 'private.' The difference is that the drug market relies on the usual profit motive, all payable in cash. The 'leaks' market has different incentives for the leakers and the leakees -- the leakees have the more traditional incentive since these stories add to a reporter's (or blogger's) reputation, and may even garner a Pulitzer. For the leaker, the incentives are different -- Snowden's were apparently a personal political morality that impelled him to act, as were Manning's -- and not so easily measured. But they are just as real.

Even as we have moved into electronic media and the government can look at us there, the government has become dependent on huge numbers of computer specialists. Who are these guys? Snowden is one of them, but there are masses of them, and they must be trusted to get to the material the government can now get to because millions of computer users have yielded to the charms of the internet. There are the masses of computers users — ordinary people doing social media — but there are the computer specialists — and most of us aren't that familiar with these people whose lives are about computers at the technical and not the social level.

What do you know about their thought patterns? Is there a geek syndrome? Are there notions of altruism and libertarianism that seem to resonate in the American tradition but are really something new and different in ways that we won't understand until it's far too late? Is it far too late?

"Ladies and gentlemen..., you seem to accept as okay that the government, intelligence agencies, would be collecting all of this data on Americans."

"And what makes you mad is that this little twerp has come along and exposed how it's done. Do any of you care why this is being done? It matters to me who is doing it. I've accepted that it's being done just like a lot of you have. But... who is doing it... why are they doing it?  Are any of you interested in that aspect of this?  Well, of course they say national security, and then when they say national security, 'Oh, oh, okay, okay, fine, fine.'  And then you forget about it. Well, you don't forget about it, you just assume. I think everybody's walking around at some level of consciousness, thinking that if somebody wants to find out about them, they can.  In addition to that, everybody, if you go to these social networks, Facebook, Twitter, everybody, or a lot of people are volunteering every bit of information about themselves without having to be spied on.  Putting a lot of trust in everybody, putting a lot of trust in their fellow citizens, in their friends, in government...."

That's Rush Limbaugh, thinking out loud — which the previous post about the WaPo-Pew poll and the interplay of partisanship and ideology made me think of. It's a fascinating monologue, with Rush saying he's "in a holding pattern just to wait and see, because, as you know, I do everything I can to avoid the conventional wisdom of the day, to follow the crowd." I'm sure his antagonists have no idea he's so measured and thoughtful. It's practically Obamaesque. Or do you think Obama merely poses as thoughtful? The extent to which Obama and Rush pretend to be working through the issues is a mystery we're never going to solve.

Anyway, I recommend the Rush monologue, which has him interacting with "Mr. Snerdley," whom we never hear, so we never know what input he's actually getting from his producer/engineer James Golden. Rush tells us "Snerdley's livid at" Edward Snowden, that Snerdley's talking about trying Snowden for "treason" for "giving away... secrets." The implied participation of Snerdley, whose thinking, we're told "may represent the thinking of a lot of you," enhances the dialogic quality of the monologue.

ADDED: I say "enhances the dialogic quality" because Rush's thinking out loud from his "holding pattern" already involves him going back and forth taking different viewpoints. I notice and appreciate this because it feels similar to what I do as a law professor to show students what's going on in a case. But as a law professor, I'm not trying to get to my own answer. Developing the issue and the various arguments and opinions is the end in itself. Sometimes a student will ask me what I think, and I like to say that's irrelevant, but if I have an opinion — if — I'll admit it just to give them more power to try to extract any bias I might have injected into the discussion.

"If the NSA leak is a bid by Obama to gain sympathy, it's working."

Says Meade, just now. (Note to Althouse blog outsiders: Meade is my husband. He doesn't blog. He's a commenter. Sometimes he comments in the comments here, sometimes over at Isthmus, and sometimes not on the Internet at all, but on what we call the Neighborhoodnet, at least in the summer, when the windows are open and voices carry.)

We've been speculating about Obama's possible complicity in leaking the NSA story. To participate in this conspiracy theorizing — come on, you know you want to — you need to come up with reasons why Obama and his people would see a benefit to his political interests in releasing this story. We know that in the post-Benghazi period, the administration has dropped scandals on top of scandals. The IRS scandal was dumped on top of Benghazi, distractingly.

But letting out a national security secret? That's something that should never have come out, as opposed to something that was going to come out eventually (where the decision would be when — not whether — to let it out).

But the NSA program is also different in that — unlike Benghazi, IRS, etc. — it wasn't a screwup. It was quite intentional, and it's something they can and will defend. We're not going to hear the usual statements about doing a thorough investigation into how something like that could have happened and the need, going forward, to insure that it never happens again. It's an opportunity to talk about competence. This scandal/"scandal" requires us to focus on the most serious duty of government — national security — and a program that is carefully planned and implemented and (apparently) completely legal.

Now, libertarians and lefties are enraged, and we've been hearing a lot from them in the last few days. Consider whether this is just what Obama wants. Get Rand Paul over there with Glenn Greenwald and his crowd. Let them blow off steam. Meanwhile, the moderates, including many moderate conservatives, are gravitating toward Obama. The left and right extreme are peeling off together, going to their happy place where the fear of foreign terrorists goes numb when Our Own Government threatens Our Liberty.

But the vast middle is coalescing... around Obama... just as planned.

Discuss!