Bench & Bar

JUL 2015

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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USA FREEDOM ACT AND THE KENTUCKY LAWYER By: Michael Losavio I don't fully understand the import of the USA Freedom Act and probably won't for a while, if ever. But the debate it has generated, after review of national security surveillance of telephone metadata, is worth a bit of our attention. Its attention that, perhaps, we should have paid to the overall implementation of national security surveillance over the past decade. That is due, in part, to the social network analysis, government and private, that can be done against all the information on who you call, who calls you, how long the call and, perhaps, the location. Creepy, but that should only apply to the target of the surveillance, who now should be someone whose nefarious ways are shown by specific facts. Or not. The surveillance may include two or three "hops," or next level or layer of folks called, to the metadata of the person with whom the target spoke (hop one), the metadata of the person who spoke with the person with whom the target spoke (hop two) and, in some cases, the metadata of the person who spoke with the person who spoke with the person with whom the target spoke (hop three). That is a truly exponential expansion in oversight and a wide web of people, many of whom may have no relation with a national security threat. So, how might we feel if we fall into this web? I'm not sure how I feel. I can see how a practitioner might be concerned, as this might subject her client base to surveillance. One aspect that the statute codified was the right of national security analysts to hand over to law enforcement information they find regarding illegal activity during the course of their analysis. The power of this analysis is pretty extraor- dinary. In one test of an analytic formula for data analysis, researchers at the Massachu- setts Institute of technology were able to take the anonymized transaction data from the credit cards of about one million people and match it to buying patterns for about 90 percent of the individuals. The metadata involved included location of the transac- tion, the time and date of the transaction, but not names or other personal identifying information. This analyzed data match could then be matched against other data sets, such as from social networking sites like Twitter or Facebook to actually identify the individual making the purchase and time-mapping the person's activities. The advantage the government had in its program was that it was pulling from multiple data sources into one huge corpus for analysis. To some extent this will be more difficult with telephone companies being the default repository of their telephone metada- ta. But, under the relatively low standards for national security surveillance, an investigation could still be initiated that would then lay out a whole host of associations that when matched against other databases, such as criminal justice intelligence, could create inferences to justify state action. How justified that state action might be is anyone's guess. What is the social and political impact of national security-level surveillance of everyone? What would the impact be on the attorney-client privilege, or the work-product privilege when this metadata and traffic analysis can reveal much of what we are trying to keep confi- dential? Will it negate the reason for having these privileges at all, that certain relationships deserve protection because the outcomes they produce are superior to the destruction of trust in those relationships? Again, something for us to consider, and perhaps prescribe better solutions to the dilemma posed by security and privacy. They are not incompatible notions and in fact, overlap, such that constantly opposing them is a false argument. Given the focus on these types of issues that have been part of the practice of law and the special relationship required between an attorney and her client, perhaps we can come up with that better solution. 43 B&B; • 7.15 S H O P TA L K for y ERISA plan? ERISA nefts under an benef n u have clients e Do you h s eligible to receive experience to wo work for your c ERI A ERISA Put our RISA ERISA . We can he lp p. W can e e clients! ran Early represe ER SA tion i sentati is key RIS n ra a nsu th I I ea a ath I D e/Accid t nt tal tal e d Lif i t rm D D -te o t rt o h S t is rm D g-te n o L t . y l us today y y sa so call y ey ce a n al y ilit isab ab it y ilit ty ab vices may be performed by other lawyers Services may be performed by other lawyers This is an advert F F U J V 4 U F F S U 4 U S P I 4 U T F 8 800-24 49- wyers : , O d by U d by other law tisem ement P U H O Y J Y F - 3731 t -3

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