Category Archives: News

War-Addicted US Military Now Arguing It Can Spy On All Computers In States With Military Bases

ncis-allurbases

A new ruling from the Ninth Circuit (h/t Eugene Volokh) highlights a case where an NCIS agent:

“surveyed the entire state of Washington for computers sharing child pornography.” [their italics] It was Agent Logan’s “standard practice” to do so. There is “abundant evidence that the violation at issue has occurred repeatedly and frequently” […] [Agent Logan] “appeared to believe that these overly broad investigations were permissible, because he was a U.S. federal agent and so could investigate violations of either the Uniform Code of Military Justice or federal law.” […] Incredibly, “the government is arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military.”

In dissent, Justice Diarmuid O’Scannlain expresses his disgust that applying the exclusionary rule would “set a convicted child pornographer free”, and argues that “from the premise that the government believes it has a certain power, it does not follow that the government routinely exercises that power.”

This was the first time that a Posse Comitatus violation had been addressed by excluding the evidence, and legal blogs are abuzz with the question of whether that remedy was appropriate. To me, O’Scannlain’s visceral dissent naively ignores the government’s track record on surveillance and civil liberties, and the fact that this case effectively discloses a new form of mass government surveillance practice.

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Local Police May Be Hacking Your Phone: Piercing Secrecy Around Stingrays

Without your knowledge or permission, your smartphone’s calls could be being intercepted right now by your local police department, and your taxes are definitely being misused to pay for unconstitutional police snooping.

stingray_wsj

We have reported before on “stingrays”, which started being used by local police departments in around 2006. These devices impersonate a cellphone tower and intercept the calls that would otherwise flow to other actual nearby towers. Initially bulky, stingrays can now be laptop-sized or smaller, and the most advanced models are light enough to be carried by drones. Police departments conceal their use of this technology when applying for warrants to conduct surveillance, so judges can’t distinguish between applying for a “regular” interception on an individual phone and a stingray interception which gathers all traffic from nearby cellphone towers. The devices’ main manufacturer, Harris Corporation, even obliges police departments contractually to conceal their use of stingrays. The Obama administration is so keen to preserve the cloak of secrecy around stingrays that they sent in the US Marshals to prevent the ACLU from obtaining documents relating to stingray use by a north Florida police department. The courts are beginning to recognize the intrusive nature of cellphone tower dump data, but have not yet grappled with the fact that using stingrays, law enforcement don’t have to ask a cellphone company for the data; they can just suck it up without permission.

Now there is a new way to rip that cloak. Popular Science quotes the CEO of ESD America, which manufactures the $3,500 “CryptoPhone 500”, eagerly describing how his phones could detect when stingrays were being used in their vicinity. While testing the CryptoPhone 500 in August, users found 17 sites around the country where stingrays appeared to be being used on passersby. They could detect the use of stingrays because stingrays downgrade your connection from 4G to the less secure 2G and then turn off your phone’s encryption. Normal Android smartphones or IPhones are oblivious to this process.

Twitter users have been speculating whether these 17 sites map onto the sites of fusion centers around the country. Since we’re familiar with both stingrays and fusion centers, we can say conclusively that they don’t. Most sites seem to be in commercial areas, not around fusion center or military locations. ESD is not providing the precise site locations, and stingrays’ mobility further complicates the process of detecting them. We think that CryptoPhone users have captured what is likely to be only a small subset of stingray usage not by fusion centers, or by the NSA, but by regular local police departments around the nation. We’re supporting the efforts of researchers like Muckrock who want to get more transparency about stingray use by police departments, and to keep an eye out for proposals in your community to “upgrade” police department technology.

So, do we all have to go out and upgrade to the CryptoPhone 500 in order to feel safe in our communications? Well, no; there’s another, cheaper way to find out whether the government is using stingrays in your community.

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White Flags On The Brooklyn Bridge: Massive Surveillance Can’t Even Stop Minor Crimes

On July 22, at 3:30am, in place of the Stars and Stripes that usually fly over the Brooklyn Bridge, bleached-out American flags appeared instead. Despite three surveillance cameras and allegedly round-the-clock police surveillance, four or five people, their identities still unknown, were able to cover up the lights trained on the flags, take them down, and hoist up their own.

Credit: James Keivom/New York Daily News

Credit: James Keivom/New York Daily News

What interests us here is not so much the action itself, as the police reaction.

“If they had brought a bomb up there, it would have been over,” said a high-ranking police source. “If they were able to bring something large enough to cover the lights, then they would have been able to bring some kind of explosive up there.” […] A police helicopter on Wednesday made repeated passes around the Brooklyn Bridge. NYPD radio cars patrolled the spans’ roadways, and police boats scoured the span from the water. New security cameras were also installed, and numerous officers – some from the Intelligence Division and Counterterrorism Bureau – were assigned to foot patrols, walking back and forth between Manhattan and Brooklyn. [CBS]

New York police are so determined to catch the vandals who replaced the American flags atop the Brooklyn Bridge that they’re using an investigative technique known as “tower dumping” to examine all of the cell phone calls made near the bridge around the time the flags were replaced. […] The NYPD is also using social media data, video, facial recognition technology and approximately 18,000 license plate pictures in trying to solve the case. [IBT]

Horrified at the exposure of a security lapse, the NYPD turned its immense resources toward finding the people who had embarrassed them. The local press described them as “vandals” and quoted local residents as wanting them to be “punished to the fullest extent of the law.”

What law?

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Bullying on the Buses: Boston School Department Says More Surveillance Is The Solution

Bullying-pic

The Boston Globe reports that the Boston School Department, worried about bullying on yellow buses, is buying audio-enabled camera systems to install on them. MBTA buses have already added camera systems that are not enabled for audio. As ever, the justification is “safety”: driver safety, student safety, whatever kind of safety. Mention the word “safety”, and it shuts down reasonable questions like: Well, how much safety and at what cost?

I was bullied as a kid – bullied on buses, in stairwells, in restrooms, in parks. I’d be the last person on earth to trivialize bullying or pretend that it isn’t awful. I appreciate that the Boston schools are taking bullying seriously and want to encourage students to treat one another with decency. But cameras on buses don’t internalize decency in kids; they internalize compliance when being watched. I was never bullied when authority figures were watching; that doesn’t mean that the solution would have been, in pre-digital days, to station a concerned adult everywhere a kid might get bullied. Nor are cameras and microphones the solution here.

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The Executive’s Humpty-Dumpty Terrorism Watchlisting Policy: Lessons from People v. Morales

humpty-dumpty

The Intercept’s publication of the criteria for the terrorism watchlists throws some light at least on what the government tells itself a terrorist is. This is a matter of keen interest to many of us, since a close reading of the following text tells you a lot about the values and priorities of our new-minted surveillance state overlords.

terrorism_definition

Not to go all mise en abyme about it, but this definition is, well, abysmal. Let’s take it a step at a time.

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During 2013, Exactly Zero MA Wiretaps Resulted In Arrests Or Convictions

garthvolbeck

The official system of electronic wiretaps in the US predates and is separate from the unconstitutional mass surveillance conducted by the NSA and other surveillance agencies. Typically, electronic wiretaps comply fully with the Fourth Amendment by requiring an individualized warrant based on probable cause before the wiretap begins. But it’s still interesting to look at how they operate and what they target, and this week’s Wiretap Report 2013 from the Administrative Office of the U. S. Federal Courts allows us to do exactly that.

The first thing that jumps out from the data is how much the electronic wiretaps system is an instrument of the War on Drugs. Though the report’s categories allow for many types of crime (“Conspiracy”, “Corruption”, “Gambling”, “Homicide and Assault”, “Kidnapping”, “Larceny, Theft and Robbery”, “Narcotics”, “Racketeering” and “Other”), fully 87% of the 3.576 wiretaps across the country were for drug investigations.

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86-Year-Old Man Took Photo of “Rainbow Swash” in Dorchester; Agents Track Him Down to Sacramento, Quiz His Neighbors, Put Him On A Watch List

This is James Prigoff. He is 86 years old.

Credit: Huffington Post

Credit: Huffington Post

Mr. Prigoff was president of a division of all-American jeans maker Levi Strauss and a VP at tasty bread maker Sara Lee. In his retirement, he apparently likes taking photos of public art, which of course, because WE HAVE FREEDOM HERE DAMMIT, he can pursue happily unmolested by law enforcement.

The Joint Terrorism Task Force takes, let’s say, a different perspective on Mr. Prigoff’s innocent retirement hobby. To JTTF, this skulking-around-taking-photographs-of-things behavior is SUSPICIOUS ACTIVITY. Consequently, after he had taken photos of the Rainbow Swash in Dorchester and had gotten home to Sacramento…

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Three Bills To Protect Privacy: We Need Calls. Now.

You pulled me over? But, why?

You pulled me over? But, why?

The powerful MA Senate Ways and Means Committee is voting on whether to approve three privacy-protecting bills. The ACLU is asking Massachusetts residents to call their legislators; do it today if you can!

The License Plate Privacy Act would limit the ability of law enforcement to track your movements around the state, by keeping an enormous database of time-stamped photos taken by automated license plate readers.

The Electronic Privacy Act would require a warrant, instead of a lowly administrative subpoena, in order for law enforcement to access your electronic files, giving them the same level of protection as paper files.

The Password Protection Act would prevent your boss or administrators at your school from snooping around your social media accounts.

The legislative session ends July 31. Now is the time to make your voices heard!

Change Is In The Air: Alleged Pot Smell No Longer Constitutes Reasonable Suspicion in Massachusetts

marihuana-syringe

It was clear from the moment that Massachusetts decriminalized the ownership of small amounts of pot, that it would create a problem for the police. Specifically, it would create a problem for their ability to continue to make the 6.5% of arrests nationwide, as of 2010, that related to pot specifically [source: FBI Uniform Crime Reports].

Let’s say that you’re a police officer, and you see a “gang member” or other darn no-goodnik driving down the block like they own the place, and maybe, as they’re driving, expressing a less than full appreciation of the patriotic protection you are providing to the community. If you pull them over, and claim to smell pot, then, whether or not there is actually pot in the car, the officer’s “good faith” belief that there might have been pot, renders a search of the car valid and allows into evidence the fruits of any such search.

Now, reports the Globe, that’s no longer true in Massachusetts. The Supreme Judicial Court has ruled unanimously that, as it is no longer actually criminal to possess small amounts of pot, police can no longer use the smell of burning or unburned marijuana to justify a warrantless stop and search of a car. The Justices explicitly rejected the argument that it was still a valid pretext for a stop because pot remains illegal under federal law.

In this instance, the SJC has substantially strengthened the liberties of everyone, including non-pot-smokers like myself. This was a case where the War on Drugs had effectively allowed an officer’s mere word (sometimes supplemented by the highly questionable evidence of an alerting dog) to open up anybody’s car contents to a warrantless search.

It is a sign that as a society we are moving beyond that kind of madness, that we can recognize that there are better things for the police to be doing, and that therefore fewer drivers will be stopped based on a hunch or on prejudice. In turn, this means that fewer young people, especially people of color, will be shunted into the criminal justice system based on violations of the Fourth Amendment. Last, we can hope, there will also be an increase in people driving rather more slowly, and therefore possibly more safely, than average.

NSA: Civil Liberties are for Christians, Not “Mohammed Raghead”

illume_islamophobia_ridz_005

The Intercept has a careful profile of five American Muslim leaders who have been targeted by the NSA. It makes clear that absolutely nothing in the public record suggests that these five men are suspected of or are guilty of any crime, or are “agents of a foreign power”. Over at Lawfare, they’re busy arguing that we aren’t allowed to see the secret evidence contained in the FISA warrant applications against these men, and that therefore we can’t tell that they are innocent. Those of us who are more familiar with bedrock legal principles realize that actually, if you can’t cite any actual evidence that someone is guilty, that’s what being innocent means.

Asim Ghafoor, a civil rights lawyer who has defended terrorism suspects, is on the list; but other, non-Muslim attorneys who defended the same cases are not on it. It seems clear that being Muslim has something to do with being on the list. NSA flacks have argued defiantly that the five were not targeted “solely” on the basis of First Amendment-protected activities, but that means almost nothing. They could have been targeted on the basis of their dark skin in addition to their religion, and what the NSA is claiming would technically be true, but that wouldn’t make it right. The article also shows the NSA demonstrating its respect for one of the world’s biggest religions by using for its sample suspect profile the name “Mohammed Raghead.”

Those who are calling this a new form of red-baiting have a point. But let’s dig into that comparison more closely. What’s wrong with both red-baiting and Muslim-baiting is that, in an attempt to counter an external threat, the intelligence agencies have become unmoored from any fidelity to the truth, the Constitution, or to norms of civilian democratic control. “Preventing the next 9/11” is the watchword, and in its name any abuse becomes justified.

But there is also an important way in which this persecution of Muslims is not like what has gone before. The red-baiters, however misguidedly, were trying to combat a meaningful external threat. Stalin and Mao were brutal mass-murdering dictators backed by nuclear weapons, enormous natural resources and hundreds of millions of people. By comparison, the territories controlled by Muslim extremists today are small, remote and poor, able to pose almost no threat to our domestic peace and prosperity. It’s a measure of how much safer the world is now than it was then, that we can afford to pay any attention to this murderous fringe movement. It is utterly absurd to use that murderous fringe movement to waste trillions in taxes and mount an all-out assault on the Bill of Rights.