Berkeley Law Transcript 2014
The alumni magazine of UC Berkeley School of Law.
FOREFRONT Samuelson Clinic Students Take Aim at NSA S Russ Neldam ’14, Efan Wu ’14, Jesse Koehler ’14, and Charlie Crain ’14 PRIVACY PATROL: 16 oon after Edward Snowden set a match to public concerns about government surveillance, students at Boalt’s Samuelson Law, Technology & Public Policy Clinic added fuel to the fire. “Our research shows the extent and consistency of overly broad surveillance that’s gone on since before World War II,” says Jesse Koehler ’14. “Talk about bipartisan support—it’s expanded consistently no matter which party was in the White House.” In November 2013, the clinic submitted an amicus brief in a federal case against the National Security Agency (NSA). Represented by the Electronic Frontier Foundation (EFF), a coalition of 22 organizations—from gun ownership advocates to Greenpeace—asserts that the NSA practice of collecting reams upon reams of Americans’ phone records is illegal. Buoyed by exhaustive research from Koehler, Charlie Crain ’14, and Samia Hossain ’14, the brief argues that without court oversight, U.S. intelligence agencies risk repeating historical abuses, such as monitoring law-abiding political opponents and other innocent Americans. The students’ work was supervised by Samuelson Clinic Director Jennifer Urban ’00 and Senior Fellow Attorney Chris Hoofnagle. Submitted in First Unitarian Church of Los Angeles v. NSA, the brief is on behalf of three renowned U.S. surveillance experts: James Bamford, Peter Fe n n , a n d L o c h Johnson. All were deeply involved in a comprehensive review of U.S. intelligence operations by the Church Committee—a 1970s Senate commit- | T r a n s c r i p t | SPRING 2 0 1 4 tee that reined in overbroad surveillance. Drawing on the committee’s review, and revealing parallels between past abusive practices and today’s monitoring programs, the brief urges the court to apply existing legal limits on government surveillance powers. “Decades of too much secrecy and too little oversight led us to this point,” Crain says. The brief calls for upholding constitutional protections and 1978 Foreign Intelligence Surveillance Act measures designed to control monitoring. With 9/11 and the technology advances that followed, those protections have come under strain. “We’ve seen executive overreach of power since 9/11 in several ways, but digital surveillance is perhaps its most alarming and rights-invasive form domestically,” Hossain says. While their colleagues made their case to the courts, Efan Wu ’14 and Russ Neldam ’14 pitched policy reform with a white paper proposing a 21st-century version of the Church Committee. “That committee effectively figured out what was going on and helped Congress better oversee the intelligence community,” Wu says. “We took that example and related it to modern times.” The paper calls for a joint congressional committee and describes successful committee models (bipartisan membership, mandatory reporting) and unsuccessful ones (lack of access to information, insufficient remedies). Neldam addressed how best to form such a committee, while Wu tackled what its powers should be. After weeks of soliciting feedback and revising drafts, they finished the paper— which EFF is sending to congressional staffers. “We need to break the perception that NSA programs won’t affect me if I’m not a terrorist,” Neldam says. “While surveillance programs do target terrorist activity, they also have a history of becoming disconnected from their roots and straying far from their actual policy goals.” —Andrew Cohen jim block Amicus brief and white paper describe past privacy abuses and propose potential solutions