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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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.
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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Last week, the House of Representatives passed the bill called The USA Freedom Act, 303 votes to 121. Following a series of amendments, the bill as it passed in the end contained much weaker reforms than even the very modest ones it originally proposed. The Chair of the Judiciary Committee’s manager’s amendment removed two-thirds of its substantive reforms; the Chair of the Intelligence Committee and the White House worked hard to remove as much as possible of what remained, leaving a shell that will still permit mass surveillance.
The Fourth Amendment is clear: Mass surveillance is unconstitutional. A government search is unreasonable, and therefore unconstitutional, if it is not authorized beforehand by a warrant issued by a judge, on the basis of “probable cause” of involvement in an actual crime, supported by an “oath or affirmation, and particularly describing” the “persons or things to be seized.”
That’s what ought to happen. This bill, on the other hand, would allow government searches of millions of innocent people’s data and movements, not based on probable cause or even reasonable suspicion of their personal involvement in a crime, but simply on any “selection term” vaguely associated with a target of surveillance. The “selection term” could be as broad as the government likes, covering, for example, everyone born in Hawaii, or everyone with the middle name Hussein. The argument for this “reform” that supporters are touting is that this is better than the current government practice of collecting everything with no selection term at all. While that’s true, it misses the larger point. The standard is individualized probable cause warrants, not “whatever is most convenient for the NSA.” A standard that can be redefined at will is marginally – if at all – better than having none.
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In April, the Supreme Judicial Court of Massachusetts expanded the circumstances under which police could enter a home without a search warrant.
The facts of the case are of a nature almost calculated to extinguish sympathy with the defendant. As reported in the Lynn Daily Item, the Duncan family mistreated their dogs and left them outside in January of 2011.
Massachusetts in a typical January is no picnic.
A neighbor called the police, and the police found two dogs dead in the front yard and a third starving to death.
Normally, the Fourth Amendment prevents access to the home or the “curtilage” (surroundings) of a home without a warrant based on probable cause. However, the Fourth Amendment is also honeycombed through with two centuries’ worth of exceptions and special circumstances driven by facts such as these. Here, the court ruled that the already-existing “exigent circumstances” exception to needing a warrant in order to save human life, also applied to animal life. The Massachusetts Society for the Prevention of Cruelty to Animals, among others, were pleased at the outcome.
We are not altogether so pleased at the implications of this ruling. Let me explain why.
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Following on from February’s ruling by Massachusetts’ Supreme Judicial Court that law enforcement needs a warrant to obtain cellphone location information, New Hampshire is now strengthening its laws relating to cellphone searches.
A short and simple bill introduced by Reps. Kurk, Sandblade and O’Flaherty, all of Hillsborough County, NH, provides that a warrant, “signed by a judge and based on probable cause,” is required for “information contained in a portable electronic device”. It’s not clear to me whether that would include cellphone location information or not, because that could be interpreted to not be “contained in” the phone. The House version includes misdemeanor penalties for a “government entity” which violates the act, as well as civil liability. The Senate version keeps civil liability, allowing a person to sue for damages, while removing the criminal penalties. This difference is what will be worked out in a joint committee in the coming week, before it heads to the Governor’s desk.
This is great news for the Fourth Amendment, and it’s good evidence that we can get meaningfully greater protections for our personal data by working through state legislatures.
UPDATE: A warrant is required only for phones that are password-protected. If you live in NH, or are visiting for the weekend, add that password!
Massachusetts has two “fusion centers”, mostly state-funded, which aggregate enormous amounts of data on innocent Massachusetts residents, with the notion of preventing terrorist attacks. When you call the “See Something, Say Something” line, the information goes into “Suspicious Activity Reports.” The ACLU of Massachusetts documented that the Boston fusion center (“BRIC”) had actually spent its time harassing peaceful activists rather than thwarting terrorism, which is one of the reasons why there will be nationwide protests against fusion centers on April 10, including in Boston.
Here are our main recommendations:
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On February 18, the Massachusetts Supreme Judicial Court declared that here in Massachusetts, state cops actually do have to get a warrant if they want to access your cellphone location data.
This is what an independent judiciary looks like. The Justices of our Supreme Judicial Court have withstood over half a century of New England winters. They have endured the long decades of the Curse of the Bambino. Their knotted muscles are carved from whalers’ scrimshaw. They are not to be messed with. The obsequious servants of the surveillance state on the FISA Court could learn a thing or two from them.
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While most Massachusetts voters are digging out from a ferocious winter storm, state politics goes on. In particular, ten brave souls are running for this November’s election for Massachusetts governor – five Democrats, two Republicans and three Independents. It seems recently that candidates campaigning against the surveillance state have been getting some traction, probably because most people think there aren’t enough constraints on invasive government surveillance and like candidates better who promise to do something about it.
So, it’s worthwhile for us to do again what we did in the MA-05 race, and question the candidates closely on the kinds of surveillance topics the governor can affect. Notably, we’ll be covering the wiretapping expansion, state monitoring of social media, state retention of an array of data on people not suspected of any crime, the militarization of law enforcement, and warrant requirements.
We’ll report back here on the responses we receive, covering Republicans, Independents and Democrats separately. When all candidates of one affiliation have responded, we will post a comparison of their views.
Meanwhile, here are all of the candidates’ websites, for you to assess their positions on other issues. Enjoy!
Republicans: Baker, Fisher.
Independents: Falchuk, Faraone, McCormick
Democrats: Avellone, Berwick, Coakley, Grossman, Kayyem
Patricia Burke of local activist group Halt MA Smart Meters brings to our attention an effort by the Massachusetts Department of Public Utilities to study how to achieve universal adoption of smart meters on residential homes in Massachusetts. This implicates the Fourth Amendment because electricity usage within a home, if gathered many times over a 24-hour period and transmitted to a government agency, may constitute a warrantless search of that home to which the home’s resident has not consented. The IT Law Wiki provides an excellent overview of the constitutional issues here.
It is unclear from the documents provided by DPU whether any plan actually exists for what to do with the data gathered by utility companies such as National Grid. It is possible that the data would remain with the utilities, and would be used to implement peak pricing that in turn would both increase profits and reduce stress on the grid at peak times. However, as we have seen with the NSA scandals, it is very easy for government agencies to get court orders requesting the ongoing release of such records by utilities to law enforcement. The records would, under the “third-party doctrine,” probably be considered to be the property of the utility company, and therefore law enforcement would typically not seek either the permission of the resident or a duly executed warrant from a judge before accessing this data.
Long-time readers of this blog will know where we’re going with this. Yes, it’s fusion centers.
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