Supreme Court of the United States

• The revelation was published in a partially declassified, internal Office of the Director of National Intelligence report released on June 9, 2023.
• The report shows the breathtaking scale and invasive nature of the consumer data market and how that market directly enables wholesale surveillance of people.
• As a privacy, electronic surveillance and technology law attorney, researcher and law professor, I have spent years researching, writing and advising about the legal issues the report highlights.

What is commercially available information?

• The drafters of the report take the position that commercially available information is a subset of publicly available information.
• Publicly available information is information that is already in the public domain.
• Commercially available information is different.
• The sources and types of data for commercially available information are mind-bogglingly vast.

Better, cheaper and unrestricted

• The information is a cost-effective way to surveil virtually everyone, plus it provides far more sophisticated data than traditional electronic surveillance tools or methods like wiretapping and location tracking.
• Complying with these laws takes time and money, plus electronic surveillance law restricts what, when and how data can be collected.
• Commercially available information is cheaper to obtain, provides far richer data and analysis, and is subject to little oversight or restriction compared to when the same data is collected directly by the government.

The threats

• The Office of the Director of National Intelligence report warns that the increasing volume and widespread availability of commercially available information poses “significant threats to privacy and civil liberties.” It increases the power of the government to surveil its citizens outside the bounds of law, and it opens the door to the government using that data in potentially unlawful ways.
• This could include using location data obtained via commercially available information rather than a warrant to investigate and prosecute someone for abortion.

Is it legal?

• There is no legal prohibition on the government collecting information already disclosed to the public or otherwise publicly available.
• Despite decades of increasingly sophisticated and invasive commercial data aggregation, Congress has not passed a federal data privacy law.
• The lack of federal regulation around data creates a loophole for government agencies to evade electronic surveillance law.

Throttling the data pipeline

• Yet smartphones, connected cars, web tracking technologies, the Internet of Things, and other innovations have had this effect without government participation.” However, it isn’t entirely correct to say “without government participation.” The legislative branch could have prevented this situation by enacting data privacy laws, more tightly regulating commercial data practices, and providing oversight in AI development.
• Effective data privacy laws would keep your personal information safer from government agencies and corporations, and responsible AI regulation would block them from manipulating you.

• ABOTA has a long history of fighting for judicial independence and upholding the Bill of Rights and every citizen's right to a civil trial by jury.
• "We would like to see this white paper used by every court in the country," said Letty Litchfield, Judicial Independence Co-chair.
• Maintaining judicial independence is not easy, and we know hard work and keeping a watchful eye are important to ABOTA's missions."
• Preserving a Fair, Impartial, and Independent Judiciary and other judicial independence resources are available at www.abota.org.

• Today it is home to more than 250,000 people – roughly comparable to the population of St. Petersburg, Florida, or Winston-Salem, North Carolina.
• Unlike those cities, however, 30% of households on the Navajo Reservation lack running water.
• While the average American uses between 80 and 100 gallons (300-375 liters) of water per day, Navajo Nation members use approximately seven.
• Since the 1950s, the Navajo Nation has pressed the U.S. government to define the water rights reserved for them under the 1868 treaty that created their reservation.

The centrality of water rights

• Water rights – the ability of individuals to use public water supplies – have always been a central issue in the U.S. West.
• Because all of the water in many western rivers has been fully allocated, these rights have a significant potential to displace existing juniors, or people who came later and have rights under state water law.
• In this context, it’s clear why the Navajo have called on the federal government for decades to specify their federally reserved water rights.

Does a ‘permanent home’ imply access to water?

• Thousands of U.S. troops roamed Navajo lands, destroying everything they could.
• After the Navajo surrendered in 1864, they were forcibly relocated 300 miles to Bosque Redondo, a barren area of eastern New Mexico.
• Many Navajo died on the “Long Walk,” and more perished over the next four years.
• Forty years later, the Supreme Court issued a ruling in Winters v. United States that became a guidepost for understanding tribes’ and nations’ federal reserved water rights.

What does the 1868 treaty require?

• In the ruling, Justice Brett Kavanaugh refused to find that the 1868 treaty satisfied the Winters framework.
• The 1868 treaty “reserved necessary water to accomplish the purpose of the Navajo Reservation.
• “Nor is it the role of the Judiciary to rewrite a 155-year-old treaty.” That job, Kavanaugh asserted, fell to Congress.
• In Gorsuch’s view, the promise of a permanent homeland, together with the history surrounding the treaty and background principles of Indian law, was enough to conclude that the 1868 treaty – following the principle set out in Winters v. United States – secured some water rights for the Navajo.

What’s next for the Navajo?

• Any judicially recognized rights for the Navajo from the Colorado River would reduce water available to the states.
• This ruling solidifies the states’ Colorado River water rights and indefinitely postpones resolution of the Navajo Nation’s claims.

• AKRON, Ohio, June 20, 2023 /PRNewswire/ -- FirstEnergy Corp. (NYSE: FE) today announced that Amanda Mertens Campbell has been named vice president, External Affairs, effective July 10.
• Campbell will lead and oversee local, state and federal external affairs for FirstEnergy.
• Since 2018, Mertens Campbell served as vice president of Government Affairs and Community and Project Outreach for The Williams Companies.
• Prior to The Williams Companies, Mertens Campbell was executive counsel, Global Government Affairs and Policy for GE Power, a subsidiary of The General Electric Company.