A September 25, 2001 memorandum released March 2, 2009 by the Justice Departent asserts in sweeping language that the attacks of September 11, 2001 justified warrantless surveillance in the U.S. as an act of collective self-defense. “If the government’s heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches,� the memo says.

The memo, authored by John Yoo, then the Deputy Assistant Attorney General, argues that warrantless national security searches that were unreasonable under the Fourth Amendment prior to the September 11 attacks may well be reasonable after those attacks because the government’s interest in conducting the search had strengthened. Thus, though the text of the Fourth Amendment hadn’t changed, broader warrantless search authority resulted from the attacks, the memo argues.
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Reports of crumbling economies around the globe are sucking all the oxygen out of the news cycle. Certainly we can’t ignore the financial peril that many countries are facing; just as certainly, we can’t ignore the perils facing a vital engine of the global economy: The Internet. Yet is precisely at such times that those fighting to keep the Internet innovative, open and free from repression must be the most alert.

CDT President Leslie Harris writes about this in a new OpEd piece published by Reuters:

“Now is the time that Internet and technology companies must step up and take on the very challenges that the Global Internet Freedom Act was intended to address in order to ensure that their services and technologies do not become tools for surveillance and oppression.”

Leslie writes that companies doing business internationally no longer have to operate in a vacuum, feeling like they must construct ad hoc policies when confronted with government requests that violate the human rights principles of freedom of expression and privacy.

Leslie’s OpEd highlights the work of the Global Network Initiative in her piece. The GNI exists to provide companies with a framework for operating in countries with repressive regimes.

“Companies that participate in the Global Network Initiative will be prepared to do the right thing regardless of whether or not there is a legal mandate to do so. At the end of the day, this is about leadership on a fundamental issue of human rights that will not go away.”

Over on CNET, Chris Soghoian has helpfully pointed out some new developments in the way that both WhiteHouse.gov and YouTube are delivering online video. Here’s a quick summary of recent changes:

• The most recent batch of videos posted on WhiteHouse.gov do not use an embedded YouTube video player. Instead, the White House is using its own embedded Flash video player and apparently leveraging the Akamai content delivery network to serve videos. No persistent cookies are involved.

• The WhiteHouse.gov privacy policy has been updated. Instead of singling out YouTube as its video provider, it now addresses persistent cookies used by “some third party providers� for statistical purposes. This is probably a good move if the White House is working with more than one third party service provider, but it would be nice to know which private companies the White House is working with (non-government sites like USA Today have been disclosing this kind of information for some time now]).

• YouTube now offers the choice of embedding any video on another site with “delayed cookies.” Using this option means that an embedded video player will not set a persistent cookie on the video viewer’s computer until the viewer actually clicks on the YouTube video player. This is essentially equivalent to the cookie functionality that the White House had been using with embedded YouTube videos and that the Electronic Frontier Foundation had introduced with its MyTube tool, but now anyone embedding a video on any site can take advantage of this fix with a simple click of the mouse on YouTube.com.

• Existing YouTube videos on WhiteHouse.gov (like the inaugural address now appear with a “Privacy info� link in the lower right hand corner of the video player. It’s unclear how widespread this change may be – webmasters of several other .gov sites noticed this change as well, although in our quick review we haven’t seen the “Privacy info� link outside of WhiteHouse.gov. Although there’s no clear federal guidance on the issue of prominent privacy notices, we like the idea of the prominent privacy link. Like “delayed cookies,� it may even be a feature that non-governmental YouTube users would appreciate.

So what does this all mean? At a high level, it’s exciting to see both the public and private sectors innovating to promote the goals of privacy and open government. In just its first six weeks, the White House seems to be keen on creating new ways for consumers to explore its content offerings in a privacy protective way, and we hope that trend continues as the offerings expand. Meanwhile, YouTube appears to be motivated by the White House’s interest in protecting privacy, and the payoff is already trickling out onto commercial Web sites. Let’s hope both trends continue.