Overview
Before posting your ideas in this Discussions please submit your one or two-page position paper on the government's surveillance via the Assignment portal.
Part I:
This week, we will conduct our second case analysis.
Consider the following fictitious situation.
After a long conflict between Russia and Ukraine, a group of pro-Russian separatists in Moldova attempted to overthrow a pro-Ukrainian government. To support these pro-Russian separatists, Russia sends in troops to Moldova, commencing a civil war in Moldova.
While support for Ukraine in the initial year of the conflict was nearly universal in the United States, a vocal anti-war movement has emerged in the United States as the war between Russia and Ukraine extended into its second year. The activities in Moldova threatened to widen the conflict and draw the United States and the European Union deeper into the war.
Dr. James Varney is an online professor who passionately believes in the need for the United States to negotiate with Russia to end the war between Ukraine and Russia. Because he has a great deal of flexibility given his job, Dr. Varney has decided to engage in non-violent protests of the war using various creative methods.
Recently, Dr. Varney, who lives in Birmingham, Alabama, has decided to protest outside the local offices of the two United States Senators, wearing a chicken outfit and a sign stating, "Don't be a Chicken, Senators Have the Courage to End the Bloodshed!." Alabama has a law that criminalizes the wearing of a mask in public.
Dr. Varney's presence outside the Senators' office has become a nuisance. Senator Katie Britt, a firm supporter of Ukraine, has told the media that she views Dr. Varney as a useful idiot for Russian aggression. She has called the local police and federal law enforcement to report Dr. Varney's activities. In response, the local police stated that enforcing the mask law is not a priority. Moreover, the local police note that the protest, while being colorful, seems like a lawful protest by a concerned citizen.
In contrast, the Federal Bureau of Investigation (FBI) seems more concerned by the protests as it has received some intelligence that Russia seeks to undermine support for Ukraine by using demonstrations inside the United States. The FBI tells Senator Britt that it does not have the staff to monitor Dr. Varney's protest but will position a newly developed drone to film Dr. Varney's protests. The drone, one of several drones operated by the local FBI field office, has the ability to record audio and video activities.
One day, the drone records Dr. Varney, who is wearing the chicken outfit, throwing a glass bottle containing red paint at Senator Britt as she exits her office. The next day, agents for the FBI use the drone to follow Dr. Varney, who is wearing his chicken outfit, from the protest site to his apartment a few blocks away, where he lives in a condo on the tenth floor. Dr. Varney's apartment is in one of the premier condo units in Birmingham, Alabama, and has wall-to-wall windows. The drone scans inside the windows of all of the units from a distance of 100 feet away.
Dr. Varney is highly sensitive about privacy and has curtains that prevent people from seeing inside his apartment. However, on the day in question. Dr. Varney's wife partially opened the curtains to provide her favorite cactus with sunlight before going shopping. The drone records Dr. Varney removing his chicken outfit via a small opening in the curtains. The drone then records Dr. Varney using his cellphone to make a telephone call. After that, a young and attractive woman, who is not Dr. Varney's wife, arrives; Dr. Varney engages in sexual intercourse with this woman, which was recorded by the drone.
Based on the drone footage, the FBI obtained an arrest warrant for Dr. Varney's vandalism of Senator Britt's office. The FBI leaks the drone footage, including the intimate details of Dr. Varney's sexual liaison with the young lady, to the Birmingham News newspaper. The Birmingham News published an article with the headline, "Chicken Little Professor Arrested for Vandalism at His Love Nest." The body of the newspaper article states that the police arrested the professor after weeks of high-tech surveillance and that an unnamed government source believed that Dr. Varney was acting on behalf of foreign intelligence agencies. Based on the arrest and the negative press covering the arrest, Dr. Varney loses his job, and his wife leaves him.
If your name ends in the letters A to J, please assume that you represent Dr. Varney.
If your name ends in the letters K to Z, please assume that you represent the FBI.
Did the FBI violate Dr. Varney's right to privacy by using its drones? Could the FBI have taken alternative steps to locate and monitor Dr. Varney? Does Dr. Varney have any claim against the FBI for releasing drone footage to the local media?
Before posting your ideas in this Discussion, please submit your one or two-page position paper on the government's surveillance via the Assignment portal.
Please focus your arguments on the legal issues raised by the case and please try to incorporate the weekly readings into your post. Also, in your responses to the posts of other students, please direct your responses and questions to those students who represent a different decision-maker. For example, if you represent a government official, please direct your comments and questions to students who are playing the other roles.
Part II:
After the 2016 Presidential election, there was a great deal of controversy regarding the United States Foreign Intelligence Surveillance Court system. What are some of the legal critiques of the United States Foreign Intelligence Surveillance Court? What has been written about the court in the legal scholarship including law review articles? Have any cases explored the constitutionality of the court system?