Law Talk recently commented on a lawsuit that had just been filed by Human Rights Watch to challenge the constitutionality of an American mass surveillance program put into place after the terrorist attacks of September 11, 2001.

Since then, several interesting developments have occurred, and more are expected to occur as early as tomorrow.

First, the French legislative assemblée voted to authorize a similar mass surveillance program, and tomorrow the French senate will begin its review of the bill. Here’s the French senate website page on different aspects of the pending bill.

Second, a portion of the American mass surveillance program, including the National Security Agency’s bulk telephone metadata collection program that was challenged in the Human Rights Watch lawsuit, expired yesterday due to a scheduled lapse of legislative authority.  The House of Representatives had already acted to renew the authority, but the Senate failed to reach a vote on the issue.  Debate in Washington over whether and how to renew the program’s authority has been vigorous, and a new Senate vote could occur as early as tomorrow.   This Huffington Post article summarizes the situation.

Third, in early May there was an appellate decision in an earlier lawsuit, brought by the American Civil Liberties Union and 3 fellow civil liberties organizations, to challenge the National Security Agency’s bulk telephone metadata collection program as both exceeding the agency’s statutory authority and violating the US constitution.  In that earlier lawsuit, the US district court had dismissed the complaint on the reasoning that the statute precludes judicial review. (The district court also found that the claim that the program exceeds statutory authority would in any event fail on the merits, and that the program doesn’t violate the US Constitution.)  On May 7, the US Court of Appeals for the Second Circuit reversed the district court’s decision.  Without reaching the constitutional issues, the appeals court confirmed that judicial review was permissible, and then found that the bulk telephone metadata collection program exceeds the National Security Agency’s statutory authority.

If Congress votes to reauthorize the mass surveillance program, then it can of course clarify the statutory limits of the National Security Agency’s authority to operate the bulk telephone metadata collection program.  In other words, the appellate court’s finding of an absence of statutory authority would be rendered moot.  However, in that case the courts would surely be called upon again to address the constitutional issues, and this time they would be required to reach them.

You can read the appellate court decision here.

Meanwhile, we’ll leave with an excerpt from Alexander Hamilton’s Federalist  paper #8 (published in late 1787 to promote ratification of the US Constitution, and quoted by Judge Sack in his concurring opinion in last month’s appellate court decision invalidating the NSA’s bulk telephone metadata collection program):

Safety from external danger is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.  The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights.  To be more safe, they at length become willing to run the risk of being less free.

To be continued . . .

Human Rights Watch (“HRW”) filed a lawsuit against the US government last week in US federal court, challenging the constitutionality of the government’s mass surveillance program.  The complaint, which you can read here, alleges that the mass surveillance program is a violation of both the First Amendment and the Fourth Amendment of the US Constitution.

The First Amendment argument is that the mass surveillance program unduly burdens the free speech and free association rights of HRW and its staff, including the right to communicate anonymously, the right to associate privately, and the right to engage in protected advocacy free from government interference.

The Fourth Amendment argument is that the mass surveillance program violates HRW’s reasonable expectation of privacy and consistutes an unreasonable searche and/or seizure.  (For a partial analysis of the Fourth Amendment issue, see this January commentary by Marjorie Cohn, a professor at Thomas Jefferson School of Law.)

Whether or not they’re interested in US constitutional law, French lawyers may find the policy issues behind this American lawsuit quite interesting, because the French legislature is right now  considering authorizing just the kind of mass surveillance program challenged in the HRW lawsuit.  HRW is especially concerned about what could happen to its valued contacts in foreign countries if the US government were to share with foreign governments some or all of the information gathered through its mass surveillance program. As explained by Dinah PoKempner, general counsel of HRS, “At Human Rights Watch we work with people who are sometimes in life or death situations, where speaking out can make them a target. Whom we communicate with and when is often extraordinarily sensitive – and it’s information that we wouldn’t turn over to the government lightly.”  It’s just one example of how a mass surveillance program can have spillover effects far beyond the intended goals (combatting drug dealing, combatting terrorism, etc.).

The French bill, the “projet de loi relatif au renseignement,” is scheduled to be considered as early as today, April 13, 2015, under an accelerated legislative procedure that precludes a second reading. You can see the bill here.  You can read an American commentary on the French bill here.  And you can read a recent French article on it, from Le Monde, here.

Meanwhile, several human rights organizations, including Amnesty International, submitted an application last week to the European Court of Human Rights challenging British surveillance practices.  You can read the application here.  And you can read an American commentary on it here.

To be continued . . . .

The US Supreme Court recently heard oral arguments in a case in which clothing company Abercrombie & Fitch had refused to hire a candidate for a store sales position because of a hijab headscarf that she wore for religious reasons.

It’s clear that American law, specifically Title VII of the Civil Rights Act of 1964, doesn’t let an employer refuse to hire an individual on account of her religious observance or practice, unless it can’t accommodate the religious practice without undue hardship in the conduct of its business.

What isn’t clear, and what the US Supreme Court will soon decide, is whether an employer can be liable under Title VII for refusing to hire an applicant on account of her religious practice where the candidate didn’t provide the employer with direct, explicit notice of her need for a religious accommodation.

In the recent case, the candidate had applied for a job in a children’s clothing store owned by Abercrombie; she wore a black headscarf to the interview but didn’t say why; and Abercrombie refused to hire her because the headscarf was inconsistent with the company’s “Look Policy” that forbids black clothing and caps. As it turns out, the candidate is Muslim, and wears the black hijab headscarf as part of her religious practice.

The Equal Employment Opportunity Commission, a federal government agency, sued Abercrombie on the candidate’s behalf in federal court. The EEOC argued that the refusal to hire her because of her headscarf was a violation of Title VII. Abercrombie responded, in part, that the candidate should have informed the interviewer that she required an accommodation from the Look Policy.

The district court granted summary judgment for the EEOC. (Summary judgment is a ruling on the law where the facts aren’t in dispute.) The Court of Appeals for the Tenth Circuit reversed, holding that summary judgment should have been granted in favor of Abercrombie. And just 2 weeks ago, the Supreme Court heard oral arguments in a case that’s very narrowly framed: can an employer be liable under Title VII for refusing to hire an applicant based on a religious practice where she didn’t provide the employer with direct, explicit notice of her need for a religious accommodation?

Another way of framing the issue is “Who has the burden of raising the issue during the interview?” The EEOC’s position is that a candidate shouldn’t be required to make a specific request for a religious accommodation to wear a hijab. Abercrombie’s position is that an employer shouldn’t have to guess whether a head scarf is worn for religious reasons or fashion reasons.

Justice Samuel Alito colorfully illustrated the issue during oral argument, in the following question to Shay Dvoretzky, Abercrombie’s lawyer:

All right. Let’s say four — four people show up for a job interview at Abercrombie. And half — this is going to sound like a joke, but, you know, it’s not. (Laughter.) So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think the employer has to — that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement.

You can listen to the oral arguments, and read the oral argument transcript, by clicking on the link near the bottom of this page of the Oyez website.

A decision is expected within the next few months.

(The New York Times illustrated an article on the oral argument with a photo of rejected candidate Samantha Elauf, her mother, and the EEOC General Counsel on the Supreme Court steps.)

It’s now been 800 years since the original Magna Carta was issued. You surely know that “Magna Carta” is Latin for “Great Charter,” and you probably also know that Magna Carta is a big deal in the annals of law and history. Beyond that, you might have forgotten (or never learned) what Magna Carta was and why we should care.

Law Talk to the rescue!

Magna Carta was drafted in June of 1215 by Stephen Langton, Archibishop of Canterbury, and issued by King John of England as a quasi-treaty to appease rebel barons in a meeting at Runnymede, about 15 miles east of London.

The charter’s 3,500 words in Latin, written on a calfskin parchment, didn’t succeed in preventing war : both king and barons violated it, Pope Innoncent III annulled it 9 weeks later, and the First Barons’ War followed, leading to the occupation of England by France.  Yet this unsuccessful treaty succeeded in establishing an important and enduring principle: everybody, even the king, is subject to the law, which means that everybody, even the lowly commoner, is protected by the law.

The principle took a long time to take hold—for centuries, it was important more for its symbolism and its inspiration than for its practical effect on limiting royal powers and ensuring the rights of commoners. But eight hundred years later, the following clause is still a fundamental part of English law:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.

You can see that clause’s influence on the first 10 amendments to the US Constitution (the “Bill of Rights”), the Universal Declaration of Human Rights, and the European Convention on Human Rights.  They all lead back to 1215.

For more information, see the British Library website.

Finally, enjoy the following video, in which Prime Minister David Cameron, in a 2012 interview with American late-night interviewer Dave Letterman, succeeds in making Magna Carta history funny.

The illustration above showing King John issuing Magna Carta at Runnymede is a 19th-century woodcarving.  Photograph: Universal History Archive/Un/REX