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JUDGE: NSA PROGRAM IS LIKELY UNCONSTITUTIONAL

Tuesday, 17 December 2013 08:27 Published in National News

WASHINGTON (AP) — In a ruling with potentially far-reaching consequences, a federal judge declared Monday that the National Security Agency's bulk collection of millions of Americans' telephone records likely violates the U.S. Constitution's ban on unreasonable search. The ruling, filled with blistering criticism of the Obama administration's arguments, is the first of its kind on the controversial program.

Even if NSA's "metadata" collection of records should pass constitutional muster, the judge said, there is little evidence it has ever prevented a terrorist attack. The collection program was disclosed by former NSA systems analyst Edward Snowden, provoking a heated national and international debate.

U.S. District Court Judge Richard Leon granted a preliminary injunction against the collecting of the phone records of two men who had challenged the program and said any such records for the men should be destroyed. But he put enforcement of that decision on hold pending a near-certain government appeal, which may well end up at the Supreme Court.

The injunction applies only to the two individual plaintiffs, but the ruling is likely to open the door to much broader challenges to the records collection and storage.

The plaintiffs are Larry Klayman, a conservative lawyer, and Charles Strange, who is the father of a cryptologist technician who was killed in Afghanistan when his helicopter was shot down in 2011. The son worked for the NSA and support personnel for Navy SEAL Team VI.

Leon, an appointee of President George W. Bush, ruled that the two men "have a substantial likelihood of showing" that their privacy interests outweigh the government's interest in collecting the data "and therefore the NSA's bulk collection program is indeed an unreasonable search under the Constitution's Fourth Amendment."

"I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgment of freedom of the people by gradual and silent encroachments by those in power,' would be aghast," he declared.

In addition to civil liberties critics, big communications companies are unhappy with the NSA program, concerned about a loss of business from major clients who are worried about government snooping. President Barack Obama will meet Tuesday with executives from leading technology companies. The meeting was previously scheduled, but the NSA program is sure to be on the agenda, and now the court ruling will be in the mix.

After the ruling, Andrew C. Ames, a spokesman for the Justice Department's National Security Division, said in a statement, "We've seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time."

Snowden, in a statement provided to reporter Glenn Greenwald and obtained by The Associated Press, said, "I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans' rights. It is the first of many."

Klayman said in a telephone interview that it was a big day for the country.

"Obviously it's a great ruling and a correct ruling, and the first time that in a long time that a court has stepped in to prevent the tyranny of the other two branches of government," he said.

The Obama administration has defended the program as a crucial tool against terrorism.

But in his 68-page, heavily footnoted opinion, Leon concluded that the government didn't cite a single instance in which the program "actually stopped an imminent terrorist attack."

"I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism," he added.

He said was staying his ruling pending appeal "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues."

The government has argued that under a 1979 Supreme Court ruling, Smith v. Maryland, no one has an expectation of privacy in the telephone data that phone companies keep as business records. In that ruling, the high court rejected the claim that police need a warrant to obtain such records.

But Leon said that was a "far cry" from the issue in this case. The question, he said, is, "When do present-day circumstances — the evolutions in the government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the government, is now."

He wrote that the court in 1979 couldn't have imagined how people interact with their phones nowadays, citing the explosion of cellphones. In addition, he said, the Smith case involved a search of just a few days, while "there is the very real prospect that the (NSA) program will go on for as long as America is combatting terrorism, which realistically could be forever!"

Leon added: "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived of in 1979."

The judge also mocked the government's contention that it would be burdensome to comply with any court order that requires the NSA to remove the plaintiffs from its database.

"Of course, the public has no interest in saving the government from the burdens of complying with the Constitution!" he wrote. As for the government's complaint that other successful requests "could ultimately have a degrading effect on the utility of the program," he said, "I will leave it to other judges to decide how to handle any future litigation in their courts."

Sen. Mark Udall, a Colorado Democrat and member of the Intelligence Committee, said Leon's ruling "underscores what I have argued for years: The bulk collection of Americans' phone records conflicts with Americans' privacy rights under the U.S. Constitution and has failed to make us safer."

Stephen Vladeck, a national security law expert at the American University law school, said Leon is the first judge to say he has serious constitutional concerns about the program.

"This is the opening salvo in a very long story, but it's important symbolically in dispelling the invincibility of the metadata program," he added.

Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the Patriot Act, the provision of law under which the data collection takes place, without finding constitutional problems. "There's a disconnect between the 15 judges on the FISA court who seem to think it's a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise."

Vladeck said there is a long road of court tests ahead for both sides in this dispute and that a higher court could ultimately avoid ruling on the big constitutional issue identified by Leon. "There are five or six different issues in these cases," Vladeck said.

Robert F. Turner, a professor at the University of Virginia's Center for National Security Law, said searching the databases involved in the National Security Agency case is similar to searching motor vehicle records or FBI fingerprint files.

The judge's decision is highly likely to be reversed on appeal, Turner said.

He said the collection of telephone metadata — the issue in Monday's ruling — has already been addressed and resolved by the Supreme Court. Turner said law enforcement officials routinely obtain telephone bills that include the numbers dialed without the use of a warrant.

"The odds that an American will have their phone metadata examined by law enforcement officials are about 1,000-times greater than by the National Security Agency," Turner said.

Jameel Jaffer, deputy legal director of the American Civil Liberties Union, which has a similar challenge pending in federal court in New York, called Leon's ruling "a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA's call-tracking program can't be squared with the Constitution."

___

Associated Press writers Mark Sherman, Pete Yost, Nedra Pickler and Kimberly Dozier in Washington and Bradley Brooks in Brazil, contributed to this story.

FDA: ANTI-BACTERIAL SOAPS MAY NOT CURB BACTERIA

Tuesday, 17 December 2013 08:26 Published in Health & Fitness

WASHINGTON (AP) -- After more than 40 years of study, the U.S. government says it has found no evidence that common anti-bacterial soaps prevent the spread of germs, and regulators want the makers of Dawn, Dial and other household staples to prove that their products do not pose health risks to consumers.

Scientists at the Food and Drug Administration announced Monday that they are revisiting the safety of triclosan and other sanitizing agents found in soap in countless kitchens and bathrooms. Recent studies suggest triclosan and similar substances can interfere with hormone levels in lab animals and spur the growth of drug-resistant bacteria.

The government's preliminary ruling lends new support to outside researchers who have long argued that the chemicals are, at best, ineffective and at worst, a threat to public health.

"The FDA is finally making a judgment call here and asking industry to show us that these products are better than soap and water, and the data don't substantiate that," said Stuart Levy of the Tufts University School of Medicine.

While the rule only applies to personal hygiene products, it has implications for a broader $1 billion industry that includes thousands of anti-bacterial products, including kitchen knives, toys, pacifiers and toothpaste. Over the last 20 years, companies have added triclosan and other cleaners to thousands of household products, touting their germ-killing benefits.

Under a proposed rule released Monday, the agency will require manufacturers to prove that anti-bacterial soaps are safe and more effective than plain soap and water. Products that are not shown to be safe and effective by late 2016 would have to be reformulated, relabeled or removed from the market.

"I suspect there are a lot of consumers who assume that by using an anti-bacterial soap product, they are protecting themselves from illness, protecting their families," said Sandra Kweder, deputy director in the FDA's drug center. "But we don't have any evidence that that is really the case over simple soap and water."

A spokesman for the cleaning product industry said the FDA already has "a wealth of data" showing the benefits of anti-bacterial products.

Monday's action affects virtually all soap products labeled anti-bacterial, including popular brands from CVS, Bath and Body Works, Ajax and many other companies.

The rule does not apply to hand sanitizers, most of which use alcohol rather than anti-bacterial chemicals.

An FDA analysis estimates it will cost companies $112.2 million to $368.8 million to comply with the new regulations, including reformulating some products and removing marketing claims from others.

The agency will accept data from companies and researchers for one year before beginning to finalize the rule.

The proposal comes more than four decades after the FDA began evaluating triclosan, triclocarban and similar ingredients. The government only agreed to publish its findings after a three-year legal battle with the Natural Resources Defense Council, an environmental group that accused the FDA of delaying action on potentially dangerous chemicals.

Triclosan is found in an estimated 75 percent of anti-bacterial liquid soaps and body washes in the U.S. More than 93 percent of anti-bacterial bar soaps also contain triclosan or triclocarban, according to the FDA.

Some consumers said the FDA ruling would have little effect on their buying habits, since they already avoid anti-bacterial soaps and scrubs.

"The regular soap works fine for me. And if I was to think about it, I would guess that those anti-bacterial soaps probably have more toxins," said Marco Cegarra, of Fort Lauderdale, Fla.

Diane McLean, of Washington, D.C., thought the soaps always "seemed like a bad idea" because of concerns about creating drug-resistant bacteria.

The FDA was asked to investigate anti-bacterial chemicals in 1972 as part of a law designed to set guidelines for dozens of common cleaners. But the guidelines got bogged down in years of regulatory delays and missed deadlines. The agency published a preliminary draft of its findings in 1978, but never finalized the results until Monday.

Most of the research surrounding triclosan's safety involves laboratory animals, including studies in rats that showed changes in testosterone, estrogen and thyroid hormones. Some scientists worry that such changes in humans could raise the risk of infertility, early puberty and even cancer.

FDA scientists stressed Monday that such studies are not necessarily applicable to humans, but the agency is reviewing their implications.

On a conference call with journalists, Kweder noted that the government's National Toxicology Program is already studying whether daily skin exposure to hormone-altering chemicals could lead to cancer.

Other experts are concerned that routine use of anti-bacterial chemicals such as triclosan contributes to the emergence of drug-resistant germs, or superbugs, that render antibiotics ineffective.

In March 2010, the European Union banned the chemical from all products that come into contact with food, such as containers and silverware.

A spokesman for the American Cleaning Institute, a soap cleaning product trade organization, said the group will submit new data to regulators, including studies showing that company products do not lead to antibiotic resistance.

"We are perplexed that the agency would suggest there is no evidence that anti-bacterial soaps are beneficial," said Brian Sansoni. "Our industry sent the FDA in-depth data in 2008 showing that anti-bacterial soaps are more effective in killing germs when compared with non-anti-bacterial soaps."

The group represents manufacturers including Henkel, Unilever and Dow Chemical Co.

© 2013 THE ASSOCIATED PRESS. ALL RIGHTS RESERVED. THIS MATERIAL MAY NOT BE PUBLISHED, BROADCAST, REWRITTEN OR REDISTRIBUTED. Learn more about our PRIVACY POLICY and TERMS OF USE.

NEED FOR DEMENTIA CAREGIVERS GROWS AS BOOMERS AGE

Tuesday, 17 December 2013 08:25 Published in Health & Fitness

ELMHURST, Ill. (AP) -- World leaders set a goal for a cure or treatment for dementia by 2025 at the recent G8 summit in London.

But for now, caregiving is among the most pressing issue for people with Alzheimer's and other forms of dementia.

The Chicago-based Alzheimer's Association says there are an estimated 15 million caregivers in the United States. And as baby boomers age and live longer, those numbers are expected to grow.

Katie Halloran, a 29-year-old teacher from suburban Chicago, is one of those caregivers.

She races home each day to her 62-year-old father Mike, who has Alzheimer's, to take over for his paid caregiver. As his condition worsens, she and her siblings are considering full-time care - a move Katie dreads.

© 2013 THE ASSOCIATED PRESS. ALL RIGHTS RESERVED. THIS MATERIAL MAY NOT BE PUBLISHED, BROADCAST, REWRITTEN OR REDISTRIBUTED. Learn more about our PRIVACY POLICY and TERMS OF USE.

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