Category Archives: News

Yay of the Day: In Ninth Circuit, Fusion Center Employee Not Completely Unaccountable for Infiltrating Peaceful Anti-War Group

The long-running case Panagacos v. Towery deals with the two-year-long infiltration by fusion center employee John Towery of peace groups including Students for a Democratic Society, the Olympia Movement for Justice and Peace, the Industrial Workers of the World, Iraq Veterans Against the War, and an anarchist bookstore in Tacoma (probably this one). Towery is technically a military employee, and courts are typically highly deferential to the military. However, the most recent ruling at the Ninth Circuit Court of Appeals allows the plaintiffs from these organizations to continue with their First and Fourth Amendment claims against the military. The National Lawyers Guild, which is involved in the case, believes this to be “the first time a court has affirmed people’s ability to sue the military for violating their First and Fourth Amendment rights”.

Good.

There are obvious analogies here to the Boston PD’s gross violations of protesters’ rights documented in the ACLU of Massachusetts’ Policing Dissent report this fall. Again, we see the fusion centers act as a nexus for the investigation and disruption, not of actual terrorist plots, but of peaceful opponents of the military-industrial complex here at home.

All my heroes have FBI files.

“All my heroes have FBI files”, by Jimi G.

By 2020, Cellphones Will Be Able To Track You Inside Buildings Too

Science Daily reports that one of the technological limitations on cellphones’ tracking capabilities is about to be lifted.

A research team led by Professor Dong-Soo Han of the Department of Computer Science at the Korea Advanced Institute of Science and Technology has developed a way of locating cellphones using their WiFi fingerprints to within 10 meters in indoor locations in cities.

The article is pretty gung-ho about the capabilities of this new technology, though they also report Professor Han as suggesting that “There seems to be many issues like privacy protection that has [sic] to be cleared away before commercializing this technology.”

Yes, Professor Han. That may be something of a concern.

In particular, may I ask, pretty please, that legislators considering bills to protect the privacy of cellphone users’ location data, bear in mind that this kind of indoor location detection has been shown to be possible? I give law enforcement oh, about five minutes after the commercial release of this technology before they start using it in investigations.

H/T to the ACLU for this graphic

H/T to the ACLU for this graphic

The obvious Fourth Amendment issue here is that the current rulings allowing law enforcement use of cellphone data tend to rely heavily on the fact that when you are outdoors, you are not generally held to have a reasonable expectation of privacy, and that your location is reasonably observable to members of the public. If cellphones become capable of tracking you indoors, where you do typically have a reasonable expectation of privacy, then judges will have to choose whether to weaken the Fourth Amendment further by not requiring a warrant for the seizure of cellphone data, even though it contains data that would be considered private, or to strengthen the Fourth Amendment in the light of cellphones’ increased capabilities by barring its use without a warrant. These are rough waters for any jurist, which is part of why we strongly support cellphone location privacy laws that unambiguously require law enforcement to obtain a warrant before being allowed to collect cellphone location data.

The research is reported as Hyunil Yang, Giwan Yoon, and Dongsoo Han, “Floor Accuracy Improvement of Wireless LAN based Large Scale Indoor Positioning”, IEEE MTT-S IMWS-IRFPT 2011, KAIST, Daejeon Korea, p.89-90 (2011).

Free Essam Attia, Political Artist

Hey, kids! Worried about law enforcement using drones for surveillance? Well, maybe you oughta just shut your goddamn piehole on that, because here in the New America, complaining about that shit can get you arrested.

That’s right. In the home of the First Amendment (my third favorite Amendment, after the Fourth (obvs) and the Ninth (link provided)), if the NYPD doesn’t like you challenging their use of drones by, say, putting up satirical posters on a few phone booths in downtown Manhattan, they’ll throw the book atcha.

essam-attia-drone-poster

After a no doubt thorough tossing of his apartment, Maine-born artist and former military geospatial analyst Essam Attia has been charged with “56 counts of criminal possession of a forged instrument, grand larceny, possession of stolen property and weapons possession after allegedly having an unloaded .22-caliber revolver under his bed“.

I’m just guessing here, but “forged instrument” presumably means “satirical posters using the NYPD logo for First-Amendment-protected political speech”. The most serious charge, for possession without a license of a small-caliber unloaded handgun, wouldn’t even be a crime in most jurisdictions; Attia claims that the gun is an antique, which under New York state law would not require a permit.

Let’s sum up. The NYPD, in the course of an investigation into an extremely minor crime (described as “kiosk vandalism”, though the kiosks were not in fact damaged), go through every inch of the suspect’s apartment, and find material that under current laws can be used to support over fifty criminal charges. There’s no word from the NYPD or any press source about what the alleged stolen property is. If Attia is correct that the gun is an antique, there’s no basis for the charge. And yet they are still able to launch in, lock him up, and submit him to all the terror and trouble of the criminal justice system, because he embarrassed them in public. They have loaded him up with charges purely to serve as a deterrent to others thinking about criticizing the NYPD – and this is even before the NYPD has any actual drones out in the field.

cartman-autorita

Maybe this is just the NYPD’s artistic response to Attia’s artistic critique. And maybe they should just drop the charges, already. Jeez, people.

UPDATE: My own Congressman, Ed Markey, has just introduced the Drone Aircraft Privacy and Transparency Act. It’s surely a good idea; but note that even one of the House’s most liberal members can offer up only that law enforcement agencies should be careful about their use of drones, not that we should stop or reverse the process of approving the use of drones for domestic law enforcement purposes.

Joined-Up Government Can Be A Bad Thing

The National Counterterrorism Center is now being allowed access to all governmental databases to trawl for suspicious activity. The Wall Street Journal (“U.S. Terrorism Agency to Tap a Vast Database of Citizens”) and the Volokh Conspiracy (“DHS Dresses Up A Turf Fight as a Privacy Issue While Ignoring the Lessons of 9/11”) both report on this development, from opposing perspectives.

Just because one part of the government has a certain set of data, doesn’t mean that all other parts of the government should have it. Your tax return is kept privately within the IRS; records of your immigration applications stay with USCIS; Medicare keeps your health records private; and so on. This kind of data confidentiality used to be routine; but once again, in the service of terrorism, the normal limitations on government power are considered expendable.

This is what happened.

NCTC asked the Department of Homeland Security for access to a database on terror suspects. DHS gave NCTC the disks, on the condition that NCTC, within 30 days, remove information regarding “innocent US persons” (innocent non-US persons are apparently fair game).

Possibly terroristic non-US person Malala Yousafzai.

NCTC couldn’t do it. In fact, after 30 days they had barely been able to download the database from the disks. Even with another 30-day extension, they couldn’t do it, and in response to this failure, they have demanded, and gotten, even broader access to even more government databases. The only constraint is that any time they access a new database, they have to publish that fact in the Federal Register.

Their problems in removing “innocent US persons”‘ data are completely understandable, because NCTC was anxious that today’s innocent person may not turn out to have been innocent tomorrow. How do you remove innocent people, when nobody is provably innocent?

Your government, protecting you. With science!

From a resource standpoint, how could NCTC possibly deploy enough skilled analysts to prove the innocence of the (at minimum) hundreds of thousands of people this one database contained? And that’s just one of the many databases to which they will now have access!

This is an example of what, over at EFF when I was interning there in 2000, we used to call “Data Valdez”. The amount of data being created is enormous and essentially impossible to thoroughly analyze. The federal government has, in its various parts, access to data on every part of our lives, but no matter how fast its computers, it will never, ever have the human resources necessary to process it properly. Demanding access to ever greater oceans of data is not going to help. It’s a processing problem, not a data problem.

That’s why, at Digital Fourth, we recognize the wisdom for law enforcement of aggressively applying the constraints identified in the Fourth Amendment. Even if you have the ability to collect more data, it works better to consciously commit to collecting less. Law enforcement should, for its own sanity and ours, collect, retain and use in investigations only data that is related to investigations of actual, well-defined crimes committed by previously identified people. Only then will the volume of data collected be low enough that law enforcement will be able to process it thoughtfully and intelligently. Yes, that means that connections will be missed that will only become apparent after the fact of an attack. But we cannot insure perfectly against the probability of future attacks. We have to invest our resources rationally, and we have vastly over-invested in preventing terrorist attacks relative to other things that kill many more Americans.

Symbolic Spending to Combat Terror: Or, Let’s Spend Your Tax Dollars on Snooping rather than on Anything Useful

The new US Senate report on the uselessness of fusion centers reminds me irresistibly of an old episode of “Yes Prime Minister”:

Nobody’s interested in the Social Science Research Council. Or the Milk Marketing Board. Or the Advisory Committee on Dental Establishments. Or the Dumping At Sea Representation Panel. But Government still pays money to support them.
– Don’t they do a lot of good?
– Of course they don’t. They hardly do anything at all.
– Then let’s abolish them.
– No, no, Prime Minister. They are symbols. You don’t fund them for doing work. You fund them to show what you approve of. Most government expenditure is symbolic.

The fusion centers are the signature initiative of Homeland Security Secretary Janet Napolitano. They were supposed to collate and report quickly on terror threats. The report makes clear that whatever amount – maybe as much as one billion dollars – has been spent on them, has been wasted. Investigators were unable to find a single case where a fusion center had supplied information that thwarted a terrorist threat. Instead, our money has been spent on collecting a heterogeneous mass of partially reliable information on the activities of peaceful activists.

At the same time, the ACLU of Massachusetts’ new report on the Boston Police Department’s Boston Regional Intelligence Center paints a very similar picture, with more casual person-to-person oppression thrown in (video here).

It’s no surprise if ordinary people who oppose the increased power of government to scrutinize our lives, feel anxious about putting their heads above the parapet. I was anxious myself till I became an American citizen this year. Who wouldn’t feel angry at their taxes being wasted investigating groups like Veterans for Peace?

This isn’t about any rational threat assessment. This is about symbolism and fear. The US government has spent roughly one trillion dollars on anti-terrorism efforts since September 11, 2001. That trillion dollars could have saved any number of lives if deployed on useful things. Our roads and bridges are falling apart, our public school have to scrape for money for sports, arts and field trips, and tens of thousands of Americans die each year for lack of basic preventative health care. Rather than helping with those things, our politicians wrap themselves in the flag and pour tax dollars into a black hole labeled “Anti-Terrorism”, without bothering to find out whether we’re spending too much or too little, or what’s working and what’s not. What’s it to them? It’s not their money. It’s your money and mine, and the party has got to stop.

If the fusion centers can’t demonstrate that they are providing a useful service, they should be closed. The entire intelligence, counter-terrorism and defense budget should be audited every year. We should reimpose Constitutional limits on the deep state, requiring government officials to actually justify what they are doing to neutral third parties in the judiciary. No-one gets a get-out clause, in the name of “terrorism” or anything else.

This isn’t a “far-left” thing or a “far-right” thing. Seems like any issue on which the main parties agree gets ruled out of bounds for discussion. The Sunday talk shows are all about the horse race, who’s up and who’s down and who gaffed and who didn’t. But the sad fact that most Republicans and most Democrats agree on wasting our money on stuff like this, doesn’t make it right.

The Public Is Now “The Enemy”

Newly leaked documents show that a US Air Force network operations manager was investigated last year after expressing sympathy for Wikileaks and for Pfc. Bradley Manning, under a charge of “Communicating with the Enemy”. This charge is technically punishable with death.

Glenn Greenwald reports on the case here, but I want to explore a curious element of it. For the charge of “Communicating with the Enemy” to hold water, the servicemember in question would have to have done the following:

“(a) That the accused, without proper authority, knowingly gave intelligence information to the enemy; and
(b) That the intelligence information was true, or implied the truth, at least in part.”

“Enemy” is further defined as including:

“organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.”

The obvious question is: who is the “enemy”?

The simple answer is that the US government now sees Wikileaks itself as a non-state enemy organization, perhaps along the lines of SPECTRE in the James Bond movies with Julian Assange in the role of Count Blofeld; or, as a real-world analogy, like the bloodthirsty fanatics of al-Qaeda. It’s unprecedented for the US government to class as an “enemy” an organization that does not advocate, promote or use violence to further its aims, and the USAF documents themselves show the ridiculousness of the charge:

Air Force investigators were unable to come up with any actual victims that would result from helping Wikileaks, so they simply listed under “VICTIM:”, “Society” itself. This is further proof that the current exercise of American power is alien to the spirit of the Constitution. If there was no definable harm, why was there an investigation at all?

Let’s add into the mix the risible letter from NSA last month responding to Sen. Ron Wyden’s request to fund out how many US nationals’ communications were being spied upon, and saying that to inform Sen. Wyden of that would “violate the privacy of US persons.”

I ask again, who is the “enemy”?

Wikileaks is, like the New York Times, a mechanism for getting information out to the public, whether in America or elsewhere. The real “enemy” is not Wikileaks; it’s the American people itself. We have to be saved from ourselves. If we come to know too much – if information that embarrasses the American government were allowed to spread unchecked – then it would significantly undermine the ability of the American government to project its power unilaterally both at home and abroad.

Imagine a world where the government couldn’t take the country to war based on manufactured evidence, or a world where people realized that the use of American power in certain poor and Muslim areas of the world kills many innocent people and creates more new terrorists than are killed.

The real crime here isn’t “Communicating with the Enemy [sic]” We need a new term, and fortunately history gives us a clear precedent. So, in honor of the Soviet dissident Solzhenitsyn, I’m christening this crime “Anti-American Agitation”, or Triple-A.

We have got to get over the fact that there will always be, somewhere on the Earth, people who are harboring negative thoughts about the United States. Such feelings are a natural corollary of empire. We can’t stop people feeling that way by showering them either with propaganda or with bombs. We can, however, act to undermine anti-American sentiments by not actively supporting oppressive and undemocratic governments. For some reason, though, this cheap, safe, and effective alternative to current American policy never seems to occur to people in power.

To those who seem to be hastening to have America emulate the might and decadence of Rome: empires always fall. Rome fell, the British Empire fell, the Soviet empire fell. Trying to control too much engenders rebellion, and efforts to suppress rebellion make people lose faith in the empire’s reason for being. Let us not therefore, O Lord, become like the empire Tacitus describes, in the mouth of a British rebel:

“The terrible Romans, from whose oppression escape is vainly sought by obedience and submission. Robbers of the world, having by their universal plunder exhausted the land, they rifle the deep. If the enemy be rich, they are rapacious; if he be poor, they lust for dominion; neither the east nor the west has been able to satisfy them. Alone among men they covet with equal eagerness poverty and riches. To robbery, slaughter, plunder, they give the lying name of empire; they make a solitude and call it peace.”

DHS: All Your Blogs Are Belong To Us

Who is the Department of Homeland Security tracking online? EPIC brings the results of a Freedom of Information Act request that discloses a Department of Homeland Security contract with General Dynamics to monitor comments on websites.

DHSblogsmonitored

Thanks for the tips, DHS snooping guys! If I hadn’t been reading some of these before, I certainly will now!

Aside from the regular sites here that monitor and translate foreign news sources relating to threats to national security, there is a heavy emphasis on sites that take a critical view of the surveillance state (especially Wikileaks, Cryptome and Wired). Amusingly for my pedantic soul, Homeland Security Watch is listed twice.

Back in the days of J. Edgar Hoover’s COINTELPRO, government agents often had to physically impersonate civil rights activists if they wanted to be privy to their communistic conspiracies. Indeed, Occupy shows that they still do. But if J. Edgar Hoover had had the technological tools available to today’s FBI/DHS, there might have been no civil rights movement at all. The ability to plan dissent in secret, without fear of arbitrary imprisonment, torture and trial, was much on the mind of the insurgents we now call the Founders, and underlies the protections of the Fourth, Fifth, Sixth, Seventh and Eighth Amendments. The Founders, in fact, were keen in principle to safeguard the right to behave in ways the government of the day emphatically disapproves of.

I’m not saying that we can’t expect the government to snoop on people online. Comments on websites are in public view, and those who make them have no reasonable expectation of privacy in what they say. However, I am letting you know that (a) they are doing it, (b) that they provably have a priority focus on undermining opposition to the surveillance state, and that (c) if you’re interested enough in these issues to be reading this stuff, you’re probably right to be feeling watched.

Happy surfing!

obey-eye-poster-fnl

The House Reauthorizes the FISA Amendments Act, but Opposition Grows Among House Democrats

I care very passionately about Fourth Amendment rights, and of all the legislation on this issue, the FISA Amendments Act is possibly the worst. Hurriedly passed in 2008 with the Bush administration having one foot out the door, it retroactively immunized telecommunications companies from liability relating to their blatant disregard of laws intended to keep Americans’ phone calls secret. It allowed the executive branch to spy on Americans’ communications and retain their content, provided that the intent was to capture the content of communications with foreign nationals relating to terrorism – and who can say what the intent was? It was a blank check for the executive to do as it pleased, and perhaps that’s why then-Senator Obama voted for it.

You might think, then, that a House held by a party that waxes at length about how America is groaning under the tyranny of the Marxist-in-chief might oppose reissuing that blank check. As it turns out, not so much. The final vote tally was 301-118 in favor, including 227 Republican Yea votes.

So, what’s going on? What is happening to House Democratic support for civil liberties? And why are House Republicans giving the Obama administration a blank check on this, and only this issue?

Unexpectedly, among House Democrats, it’s not because the change in President has made them newly comfortable with warrantless surveillance. In 2008, when the law was originally proposed, 128 Democrats voted Yes, as opposed to 74 today. Many more House Democrats opposed it in 2012 than opposed it in 2008, even with a Democrat in the White House. 12 Democrats voted Nay in 2008 and Yea in 2012, and 9 Democrats moved the other way. However, Democrats new to the House, elected in 2008 and 2010, were much more likely to oppose reauthorization of the FISA Amendments Act. This is presumably because warrantless surveillance was a hot issue with the Democratic base during the last years of the Bush administration, making it more likely that freshman Democrats would have run on opposition to warrantless surveillance relative to Democrats previously in the House.

The seven Nay votes among Republicans came from Amash (R-MI), Duncan (R-TN), Gibson (R-NY), Johnson (R-IL), Jones (R-NC), McClintock (R-CA) and Paul (R-TX ). They’re not Tea Party Caucus people (only two of its 61 members opposed reauthorization); instead, Ron Paul’s Liberty Caucus is leading the way.  We can deduce from this that the Tea Party folks really don’t care about the Fourth Amendment, or alternatively that they really think that the surveillance covered under the FISA Amendments Act relates only to foreign nationals. Freshman Rep. Trey Gowdy (R-SC) asked tellingly during the one hour of debate allowed, “Are we to believe that the Fourth Amendment applies to the entire world?”, and many other speeches showed that House supporters of reauthorization thought it related only to foreign nationals.

Let me be blunt (I’m not that good at being tactful). There’s no out. There are no exceptions. The Constitution applies always, and people who claim it doesn’t can go suck it. Our Fourth Amendment should apply to every US government action anywhere in the world. Other governments’ actions can be bound by their own constitutions. But each government actor swears to uphold the Constitution, and they should do it. When the prison camp at Guantanamo Bay was set up, it was set up there on the theory that Guantanamo Bay was not US soil and the Constitution therefore didn’t apply there. I believe that wherever in the world the US government exercises control, its acts should be bound by the US constitution. If the US government wants to argue that the US constitution doesn’t apply at Guantanamo, then no legal vacuum can exist, and the US government is therefore bound in its actions there by the constitution of Cuba, from whom the US government leases Guantanamo Bay. And who wants that?

The courts, unfortunately, have endorsed executive abuses of the Fourth Amendment in part, and have introduced invalid distinctions between US governments spying on American nationals and US governments spying on foreign nationals. One day, I hope to see those distinctions overturned, and a uniform standard of probable cause applying to all surveillance efforts.

The FISA Amendments Act reauthorization now moves to the Senate. Please write your Senator to let them know that, for the sake of all of us, this vicious legislation should be allowed to die. Senator Ron Wyden (D-OR), to his immense credit, has put a hold on the reauthorization; please thank him here.

If We Don’t Tell You We’re Watching You / You Maybe Maybe Maybe Can Still Sue

Amnesty Intl. USA v. Clapper, 638 F.3d 118, 2011 ILRC 1479, 39 Med. L. Rptr. 1481 (2d Cir. 2011) [2011 BL 73424]

It comes as no surprise that the federal government continues to fight tooth and nail to prevent court review of any kind of its warrantless surveillance of the world’s communications. What’s surprising is that, even with the strong deference shown by U. S. courts towards claims of “national security”, the occasional ruling still slips through. This is one of those. A mix of attorneys, journalists and human rights organizations have challenged the constitutionality of changes to the Foreign Intelligence Surveillance Act, arguing that though they do not have access to affirmative evidence that they are being surveilled, it is plausible enough that they are being surveilled that they have taken expensive and burdensome actions to change the way they communicate with their overseas contacts to take that possibility into account. The case will go ahead as a facial challenge to Section 702 of the FISA Amendments Act.

The Act’s language, accurately described by Lyle Dennison, heartwarmingly excludes intentional capture of US persons’ communications:

The amendments significantly expanded the federal government’s authority to engage in electronic surveillance that supposedly targets only foreign nationals, but may pick up communications involving Americans, although that is not allowed intentionally [my italics].

Let’s review. FISA got expanded to allow communications involving Americans to be vacuumed up at will without a warrant, so long as the vacuuming is not intentional. Perhaps the thinking was that this would insulate a computer algorithm from Fourth Amendment review, because a computer algorithm could be deemed by a court to have no intent. We would argue that a computer algorithm that does not distinguish between the communications of U. S. citizens and of non-U. S. citizens is in effect intentionally designed to pick up communications involving Americans. “Oops, golly gee, I don’t know how that happened” is not a legitimate defense against Fourth Amendment review. (h/t: SCOTUSBlog)

What, Was That Your Data I Lost In Between The Couch Cushions For 15 Months?

United States v. Metter, 2011 U.S. Dist. LEXIS 155130 (E.D.N.Y. 2012)

In a ruling Thursday, a New York federal court held that the FBI took too long to examine a defendant’s imaged hard drive after it was obtained via warrant. “The government’s more than fifteen-month delay in reviewing the seized electronic evidence”, wrote an acerbic Judge Dora Irizarry, “under the facts and circumstances of this case, constitutes an unreasonable seizure under the Fourth Amendment.” Judge Irizarry found that the government had shown no intent even to begin a review of the materials seized to determine relevance, and that in that context the search was not accomplished within a “reasonable” time within the meaning of the Fourth Amendment.

Maybe this is another sign that the federal courts are beginning to come to grips with the indefinite persistence and searchability of digital records, and are trying to set some limit beyond which Fourth Amendment notions of a “reasonable” length of time come into play. So, the good news is that by this ruling, the government can’t simply sit on all of your business and personal data for ever without reviewing its relevance to an ongoing case; the bad news is that as a district court ruling, its applicability to broader issues like indefinite government seizure of domain names or asset forfeiture is limited. (h/t: Cybercrime ReviewThe Volokh Conspiracy)

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