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#MassWiretap Press Release: NSA-Style Phone Tapping Coming to Massachusetts?

NSA-Style Phone Tapping Coming to Massachusetts? New alliance of civil liberties groups opposes massive expansion of Massachusetts wiretapping law

CONTACT:

Alex Marthews, President, Digital Fourth, 781 258-2936, alex@warrantless.tech

The recent NSA spying scandals have rocked the DC establishment and shocked the public. However, that hasn’t stopped a new bill before the Mass. Legislature that actually loosens Massachusetts’ wiretapping laws (Mass. Gen. Laws. 272.99). Digital Fourth, a new group named in honor of the 4th Amendment, is leading a coalition of six civil liberties groups to oppose the bill, and is launching a petition campaign today.

The bill, called “An Act Updating The Wire Interception Law” (S. 654 / H. 3261), will come up for a hearing before the Judiciary Committee of the Massachusetts legislature on July 9. Its major provisions:

1) Remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally. Potentially, even minor crimes like marijuana possession could become eligible for wiretapping by state authorities.

2) Double the length of an authorized wiretap, from 15 to 30 days.

3) Legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.

Alex Marthews, founder of Digital Fourth, comments, “The mass interception provisions are especially worrying. Both the Fourth Amendment and our own state constitution’s Article XIV forbid ‘general warrants’ that tap entire streams of personal information without specifying ahead of time what’s being searched for and whose records are being searched. This bill undermines basic liberties that have served us well for over two hundred years.”

As this bill and other privacy legislation come before the Legislature’s Judiciary Committee, the nation’s eyes are on Massachusetts. Will our Legislature react to the recent terrorist attacks with panic, throwing away two centuries of our historic commitment to civil liberties? Will they allow state law enforcement the kind of Orwellian powers to track our phone calls that Congress unwisely gave to federal intelligence agencies? Or will they set an example for how Americans can roll back an increasingly intrusive surveillance state?

#MassWiretap Campaign Goes Live!

Our campaign to stop the disturbing new Massachusetts wiretapping bill launches today; sign the petition here!

If you’re interested in giving testimony to the Judiciary Committee on the bill, please contact Gavi Wolfe of the ACLU here.

Our thanks go to our partner organizations: the ACLU of Massachusetts, the Bill of Rights Defense Committee, Demand Progress, the Electronic Frontier Foundation, Fight for the Future, and our experts at Social Movement Technologies who put the petition together.

FBI-Borg Informs US Private Sector of its Impending Assimilation, Generously Limits Fines for Resistance to $25,000 Per Day Per Violation

robert_mueller

The FBI has a new proposal afoot to require communications companies doing business in the US to make their communications technologies “wiretap-ready”, to avoid the “going-dark problem”. From Charlie Savage at the New York Times, six hours ago:

The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations. […]

Currently, such orders instruct recipients to provide technical assistance to law enforcement agencies, leaving wiggle room for companies to say they tried but could not make the technology work. Under the new proposal, providers could be ordered to comply, and judges could impose fines if they did not.

Under the proposal, officials said, for a company to be eligible for the strictest deadlines and fines — starting at $25,000 a day — it must first have been put on notice that it needed surveillance capabilities, triggering a 30-day period to consult with the government on any technical problems.

Lord forbid that private companies should offer services that can’t be wiretapped by the government. If the FBI finds itself unable to routinely spy on the communications of people not yet suspected of any crime, that’s a feature, not a bug, and is in fact what the Fourth Amendment requires.

In America, this manic need to collect every iota of data is “helping defeat the terrorists” and “protecting the homeland”. When other countries do it, though, it’s a whole different story. Read on!

Read More →

Total Information Asymmetry

From the ever-brilliant Saturday Morning Breakfast Cereal:


Quick Update:: Lockdown Lifted, and There is Lots to Come

So we’re out from under the lockdown, and plenty happened while we were “requested” to stay inside. This has been an extraordinary week here in Massachusetts, and we’ll be dealing with the implications of it for some time to come.

Our congratulations go to the members of the public who provided crucial information that helped catch bombing suspect Dzhokhar Tsarnaev. Congratulations also to law enforcement, for proceeding cautiously in apprehending Tsarnaev, resulting in his being taken alive.

Coming up on warrantless.tech:

– A two-part discussion of the Fourth Amendment relating to the Boston Marathon attacks, covering racialized “reasonable suspicion”, the case of the Saudi student, and the constitutionality of refusing entry to law enforcement conducting a house-to-house search.
– An update on Wednesday night’s upcoming BU-PAO panel discussion on privacy and security

The Theory of Surveillance: The Panopticon and the Stainless Steel Rat

As we residents of Massachusetts gambol heedlessly downward from the Mountains of Liberty toward the Swamps of Oppression, let’s take a brief breather to consider a more general commentary on surveillance.

Philosophical examinations of governmental surveillance powers center on eighteenth-century founder of utilitarianism Jeremy Bentham and twentieth-century philosopher Michel Foucault. The key concept used to inform their thinking is Bentham’s notion of the Panopticon:

The Panopticon: the ideal prison

According to Bentham, the ideal prison

The Panopticon was a prison with the cells in the outside circle and the guard tower in the center. Each prisoner was, at all times, perfectly visible to the guards. The guards were invisible to the prisoners, so prisoners had to assume that they were being permanently watched.

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Not A Clown Car Law: Comparing Massachusetts’ Electronic Wiretapping Laws to Connecticut’s

The way you hear Martha Coakley tell it, Massachusetts’ laws relating to when you can and cannot issue an electronic wiretapping warrant are about as effective as using a clown car to fly folks to the moon. They were passed in the 1960s, man! Don’t you know you can’t trust any law over 30?

Of course, the Bill of Rights is nearly 220 years old, and many people seem somehow to find it important despite being oldy oldy old old. So we figured, why don’t we take a look at what other comparable states do, and see if Massachusetts’ laws look comically outdated compared to them?

Let’s try our friends over in dull-but-wealthy Connecticut! What does Nutmeg State law enforcement have to do to get their donut-frosting-smeared mitts on one of those sweet, sweet electronic wiretapping warrants?

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Security Theater on the T: Demonstration Condemns Random Bag Searches

On Saturday, a new civil rights group called “Defend the 4th” conducted a successful protest against the TSA. Despite the bitter cold, over 200 people turned out, marching from various points on the MBTA system and congregating on Boston Common. People attending included folks from Anonymous, Occupy Boston, the Pirate Party, the Republicans, the Ron Paul folks, the Socialists and a most righteous quantity of press organizations. Congratulations to organizers Garret Kirkland, Tamarleigh Grenfell, Frank Capone, Petey Bouras, Elvis Rodriguez and Joshua Chance Scafidi.

I was impressed to see that even in the depth of winter, 150 people in the Boston area were willing to turn out to defend the Fourth Amendment. That’s the equivalent of 1,500 in the summer.

Why were we so upset about the TSA’s activities on the MBTA? Since 2006, the TSA has been conducting “random” bag searches on the MBTA, where they scrape bags for explosives. They are “random” because federal law requires suspicionless searches to be random in order to pass legal muster, but the TSA can (and has) selected, say, Dudley Square T station (in a mostly-black neighborhood) rather than Symphony station (in the tony South End), as their base of operations, and then “randomly” chosen one out of five travelers. If a traveler doesn’t consent to a search, they have to go to another station (or sometimes simply a different entrance to the same station). Oh, and the TSA doesn’t work shifts on the MBTA at weekends.

The TSA must think that terrorists are the dumbest people on Earth. It requires only a minimal amount of intelligence for an explosives-carrying terrorist to decide that this policy makes Sunday the best possible day for a terrorist attack.

What does this remind me of? Oh yes…

asterix

From “Asterix in Britain”, 1966, by Goscinny & Uderzo

This is pure security theater. It’s designed to make the TSA look as if it’s doing something. Not coincidentally, it also extends the authority and reach of the TSA over our ordinary lives, and to justify expanded budgets. No evidence has ever been made public that any terrorist entity is targeting the MBTA. But even if there were such evidence, we have the right to travel freely around our country. The authorities, whether TSA or anyone else, must have probable cause before targeting any of us for a search. We’re not a country that does internal passports, random checkpoints, or asks citizens to show their papers without cause.

More specifically, the demonstrators’ constitutional concerns have at least some merit. In ten states (Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming), sobriety checkpoints and therefore also these kinds of random bag checks are explicitly unconstitutional. In Massachusetts, the state Constitution’s Article XIV suggests strongly that random bag searches would also be unconstitutional here:

Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right [cp. are unconstitutional], if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.

Got that? To be constitutional, a search “in suspected places” must “be accompanied with a special designation of the persons or objects of search”. Random bag checks don’t do this.

This should serve notice to the TSA. People are beginning to wake up to the TSA’s disrespect for long-established rights. There’s no evidence of a threat to the MBTA; there’s no evidence that random bag checks are effective; and the checks are of doubtful legality. Without some pushback, every agency will want a piece of the homeland security pie, till our every move in public becomes the object of surveillance by a newly and aggressively militarized police presence. We can afford a gentler and more civilized way of life.

Won’t Somebody Think of the Children!!!1!!!: Mass Law Enforcement Proposes Massive Expansion of Wiretapping Powers

Some folks might be ashamed to use the bodies of dead kids as cover for a power grab. That clearly doesn’t include Massachusetts Attorney-General and failed Democratic Senate candidate Martha Coakley.

The Globe reports that Coakley, along with state senator Gene O’Flaherty (D-Chelsea) and state rep John Keenan (D-Salem), have introduced a new bill to massively expand law enforcement’s power to conduct electronic wiretaps of our communications (S. 1726 / HD 1194).

In her press conference, Coakley cited the school shooting in Newtown, and a 2011 case where a murder conviction was overturned because it rested on evidence obtained under a wiretap that was not valid under current Massachusetts law. What the Globe doesn’t mention, but Waltham’s Daily News Transcript does, is that the murderer in question was convicted later anyway (good reporting, Andy Metzger!).

There is not one scrap of evidence that easier electronic wiretapping would have prevented the school shooting in Newtown, or would prevent school shootings here in Massachusetts. The Newtown shooter wasn’t on Facebook or Twitter, and nothing has emerged relating to his computer or cellphone use.

More importantly, if the best evidence Coakley and friends can come up with to justify expanding wiretapping powers is a case where they got a conviction in the end anyway, that changes their argument completely. Instead of “this will help us convict more criminals”, they’re really arguing “this will save us some time and expense”.

Sorry, guys. That won’t cut it. Any limit on government investigatory powers makes investigations longer and more expensive. That’s the point. If investigations are costless, everyone will be investigated, because why not?

Last, and most laughably of all, both Coakley and O’Flaherty breathlessly told the press that “criminals have the upper hand” here in Massachusetts. Here’s a graph showing crime rates per head in Massachusetts, using federal crime statistics:

crime

The facts show that crime has been steady at less than 3 reported crimes per 100 residents per year since around 2002, and that that level is the lowest since 1968. Criminals don’t have “the upper hand” here in Massachusetts. Crime is about as low as it’s ever likely to go.

Let’s not kid ourselves what this is about. This is not about reducing crime. Remember, they can’t think of a single case where there’s a criminal walking free today because electronic wiretapping is only allowed under narrow circumstances here in Massachusetts. This is about power. The AG’s office knows that it’s technologically possible for them to monitor more of our electronic communications, and it bugs them that it’s illegal to do, whether or not that monitoring will result in more convictions. So, they’re ginning up false fears of crime, calling this an “update”, and trying to get the people of Massachusetts to agree to join them in the brave new mass-monitored world – which they, not us, would control.

Guys, you’ve been rumbled. Your arguments don’t make sense. Find better ones or go home.

Why not let them know how you feel?

To contact the Attorney General’s office, try here.
To contact State Senator Eugene O’Flaherty, try here.
To contact State Representative John Keenan, try here.

Aaron Swartz, RIP: Overcriminalization Claims Another Victim

Aaron Swartz

Aaron Swartz

There are no words to describe the loss to the world of brilliant technologist Aaron Swartz, who killed himself this weekend at the age of 26.

Aaron had already helped to develop RSS and Reddit, worked to stop the Stop Online Piracy Act, and was deeply involved in Internet activism. He could easily have devoted his extraordinary skills only to profit; instead, he committed himself passionately to openness and the spread of knowledge. Lawrence Lessig has summarized his work far better than I can. The creator of the World Wide Web, Tim Berners-Lee, gave the eulogy at his funeral.

Aaron’s death teaches us an important lesson about how the law operates here in 21st-century America. He was not the only local activist to be unnecessarily persecuted by government agencies. Laws relating to our Internet activities have been drawn so widely and so poorly that eager prosecutors can find grounds for indicting more or less anyone, for things that in former times the law would not have defined as crimes at all. Government agencies can now open investigations on people, and subject them to the sledgehammer of the criminal justice system, on the strength of nothing more than unwise posts on Twitter or translating the wrong materials. Prosecutors answer to nobody regarding the fairness or proportionality of their investigations.

The result is that dissidents who hamper powerful interests can far too easily be investigated and silenced. The result is that brilliant, original and public-spirited souls like Swartz exhaust their energies on meaningless legal battles, rather than developing new and wondrous technologies to solve problems we all face. We’ll never know now what Aaron Swartz would have come up with next, thanks to the casual brutality of a criminal justice system that cares more for creating criminals than for achieving justice.

Know what side you’re on. Overcriminalization hurts us all. We need to stand together, and rein in this crazy system, before it chews us all up.

UPDATE: Journalist Radley Balko has an excellent piece on “The Power of the Prosecutor” – go read it!

Albert Woodfox

Albert Woodfox of the Angola 3

Julian Assange

Julian Assange of Wikileaks

Bradley Manning

Bradley Manning, whistleblower on war crimes

Leah Lynn-Plante

Leah Lynn-Plante, anarchist imprisoned for refusing to testify to grand jury

Tarek Mehanna

Tarek Mehanna, imprisoned for translating al-Qaeda materials

Barrett Brown, hacktivist imprisoned for annoying the FBI

Barrett Brown, hacktivist imprisoned for annoying the FBI

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