REAL ID and Islamophobia: Resisting Our Legibility To The State


In most parts of Europe, since the totalitarian governments of the inter-war period, pressure from governments to make their citizens legible has been hard to resist. Germany now has universal biometric ID cards for all adults, which police have a right to demand to see, irrespective of whether they have probable cause of your involvement in a crime; 24 of the 27 EU states have mandatory national ID cards.

Biometrics matter, because outside of science fiction, they can’t be changed. During refugee crises, deep anxieties – Who are these people? Why are they coming here? – induce governments to pin people down to an unchanging identity, like bugs in a biologist’s cabinet.

This is a fundamental difference between mainly-autochthonous and mainly-settler societies. Ideologically, the United States came to be out of westward conquest, by people eager to refashion themselves away from the religious and social strictures of more settled societies. At Ellis Island, you could change your name; on the frontier, a white man could be whoever he declared himself to be. As Walt Whitman wrote, “Of every hue and caste am I, of every rank and religion, / A farmer, mechanic, artist, gentleman, sailor, quaker, / Prisoner, fancy-man, rowdy, lawyer, physician, priest. / I resist any thing better than my own diversity, Breathe the air but leave plenty after me.” Settler societies are supposed to “leave plenty” of air to breathe for those who come to settle after them; they’re supposed to leave room to self-refashion. Anonymity, pseudonymity and the ability to erase your tracks bolster your power versus the state.

Which brings us to Donald Trump, and his calls for registration of suspiciously Muslim people; and which also brings us to efforts here in Massachusetts to increase our legibility by implementing the REAL ID Act.

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Penny-Ante State-Based Spies Want To Force Big Kids To Let Them Play With All The Data


The U. S. House just passed two bills under suspension, HR. 3503 and HR. 3598, sponsored by Rep. McCaul (R-TX-10) and Rep. Peter King (R-NY-2). For some reason, McCaul and King are fans of the inept and wasteful “fusion centers”, a network of 78 state-based centers funded partly through DHS.

The idea back in 2006 was that fusion centers would provide “joined-up intelligence”, coordinating federal and state information that would then thwart terrorist attacks in advance.

It didn’t quite work out that way. In fact, there’s good reason why fusion centers are not now the focus of intelligence sharing efforts: They turned out to be a waste of time and resources better spent elsewhere.

A bipartisan 2012 US Senate report blasted the fusion centers for failing to thwart any attacks, for wasting public funds on things like widescreen TVs (for “open source intelligence collection”), and for articulating absurd rationales for surveilling peaceful domestic activists. One fusion center labeled supporters of Ron Paul and the Campaign for Liberty as potential domestic terrorists; in Boston and around the country, veterans’ groups, the Occupy movement and Black Lives Matter have come under sustained scrutiny. Fusion centers don’t thwart terrorism; they offer states a bureaucratic mechanism to funnel DHS grants to, say, northeastern Ohio (which has its own fusion center), distributing them away from areas more likely to be targeted by terrorists. They collect and sit on mounds of unverified gossip about “suspicious” people, gossip that often appears motivated by racial or religious bias. These threats are nonsensical; there is no reason to lend them credence.

These bills should be seen clearly for what they are. They’re not efforts to actually thwart terrorist attacks better; they’re salvos in a turf war between intelligence agencies. Fusion centers are often left out of data sharing by other surveillance agencies, such as the FBI, TSA, CBP and other DHS agencies. Instead of allowing discretionary sharing with individual fusion centers, H. 3598 requires support for the National Fusion Center Network specifically, and aims to “ensur[e] that fusion centers in the Network are the primary focal points for the sharing of homeland security information, terrorism information, and weapons of mass destruction information with state and local entities.” HR. 3503 seeks to integrate fusion centers more closely with border security, in the form of CBP, TSA and the Coast Guard, forcing those agencies to analyze whether it would be beneficial to station CBP, TSA and CG personnel at fusion centers, in lieu of simply sharing data electronically. The bill gives the Under-Secretary of Intelligence and Analysis at DHS an ultimatum to agree within one year with all 78 fusion centers how DHS and the fusion centers will share and disclose data. Of course, the bills take no steps to make fusion centers effective in the future, so there’s no way to test whether the bills will actually do good if they pass. All they offer Congress is reports on whether fusion centers have particular policies, not whether the policies work; whether they are sharing information, not whether the sharing actually results in less terrorism or less crime.

We support the sharing of important, verified leads, based on probable cause of actual criminal plots. But these bills make us less, not more, safe, by encouraging the kind of information sharing that will overwhelm agencies like FBI and other parts of DHS with useless false positives. They will waste the time of FBI Joint Terrorism Task Force personnel, forcing them to spend time dealing with an extra agency when time is of the essence. There is no language that would involve actual evaluation of whether the information they hold is accurate, useful or constitutionally appropriate to hold. As constitutional activists, we’re no fans of the FBI’s efforts to convert themselves into a federal counterterrorism and domestic surveillance agency, and there’s plenty of overlap already among federal agencies fighting for a piece of the seemingly unending stream of counterterrorism tax dollars; but extending sharing further by forcing everything to go via the fusion centers seems even more counterproductive.

Call your Senator, and urge them to vote against these bills!

Go Smart, Not Broad: A Constitutional Response To Violent Attacks


A former Middle East advisor to President Obama, Steven Simon, suggested in Saturday’s New York Times that the administration’s response to the Paris attacks was likely to include “Tighter border controls, more intensive surveillance in the U.S. and more outreach to local communities in the hope that extremists will be fingered by their friends and family. And a tightening of already intimate cooperation with European intelligence agencies.”

These proposals, if adopted, would be immensely counterproductive, and here’s why.

First, tighter border controls are irrelevant to this attack. It appears that all of the attackers so far identified, were EU citizens; none were refugees from Syria.

Second, France already had a draconian mass surveillance law, which came into effect at the beginning of October. It didn’t work to thwart these attacks. The reason is the “false positives” problem. Any system employing demographics, metadata, or past behavior, inevitably sweeps up a vast majority of innocent people, and diverts police and intelligence resources towards ruling them out. This LA Times study of “pre-crime” efforts to prevent violent crimes by US Army soldiers added every variable they could, and still, for every 15 people who did in fact commit violence in a given year in their set of suspects, 985 did not. Similarly, before the Boston Marathon attacks, the FBI had flagged Tamarlen Tsarnaev for interview; but they interview hundreds of flagged people every week, and have no way of knowing which among them will actually commit an attack. So, it appears that six weeks before the attacks, France’s intelligence agencies snowed themselves under with an ocean of false positives, and weren’t able to detect among that traffic the communications that were suspicious. They can’t be faulted for not being able to do so; it’s mathematically impossible. All mass surveillance allows is what’s happening now, which is to be able to go back into the system and see what you missed.

Third, Muslim and black communities were already under very heavy pressure in France, and are already under very heavy pressure here from the FBI, through its “Countering Violent Extremism” program, to “finger friends and family”. CVE uses models of radicalization with no solid academic basis to identify people as potentially radical simply because they have changed their dietary habits or become more devout about their religion. To make their numbers, the FBI has even resorted, in case after case, to creating their own terrorists out of young, poor, and mentally unstable young men, using confidential informants to lead them through every stage of devising a plot till they do something the FBI can arrest them for. We don’t need more of that either.

Fourth, when it comes to “more intimate cooperation” with European intelligence agencies, the fact is that such cooperation is already “intimate” – so intimate that the British systematically tap Internet traffic and hand us the contents; so intimate that we share “raw take” intelligence with Israeli security services; so intimate that the German intelligence agency helped the NSA spy on Europe’s top politicians in exchange for access to the latest in surveillance wizardry. Short of actually being in bed with one another, there’s no more “intimacy” to be had – and it still isn’t working.

This kind of mass surveillance is not working to thwart attacks. But in four important ways, it does work. Mass surveillance intimidates citizens in their ordinary conversations and activities of life. It allows bigoted politicians to curry favor with their base, and coast on a wave of anti-Muslim suspicion. It brings great profits to the private security firms smart enough to fill their cup at the never-failing spigot of federal counterterrorism funding. And it makes the general public feel that Something Is Being Done, convincing them to trade more of their rights away for a little temporary safety.

Last, if we react in this particular way, it also serves the ends of the violent criminals who committed this attack. Lacking resources themselves to wage war, they seek to provoke a backlash that will garner them support among the peaceful Muslim majority. Back in the day, the IRA posed as the defenders of the rights of peaceful Northern Irish Catholics against foreign oppression; today, the Islamic State poses as the defenders of the rights of peaceful Muslims against foreign oppression. A governmental backlash against Muslims in general will merely bolster their propaganda: See? We told you they’re out to get you! Come join us!

Instead, we should use the Constitution to solve the false positives problem. The Fourth Amendment bars mass surveillance, requiring, before surveillance is conducted, a warrant based on individualized probable cause of involvement in actual criminal activity. Imagine that, instead of having a “TIDE” terrorist database with 750,000+ names on it, it were limited to a maximum of one thousand, but that the one thousand were each investigated thoroughly on the basis of actual evidence. The surveillance agencies would waste a lot less time chasing fruitless leads, building data centers, or shoveling money to software vendors to try to solve this insoluble problem.

Foreign policy and economic solutions are beyond our remit, but it should be obvious that in order to drain the Islamic State of support, we have to provide those fleeing its rule with a credible chance at a better life. At the bare minimum, we should let them know that if they come to our country, they will be treated justly, not kept constantly under watch even if innocent of any crime.

Massachusetts’ Law Enforcement Councils: Born In Infamy, Sustained By Fear


The reporters at the Bay State Examiner, Maya Shaffer and Andrew Quemere, do real journalism – the kind that chases stories of misdeeds in high places, instead of breathlessly reproducing press releases on celebrities in rehab. They’re in it for truth, not for big paydays and access to power.

Their latest piece, produced in collaboration with BINJ and DigBoston, sheds light on the operation of NEMLEC. NEMLEC is one of Massachusetts’ “Law Enforcement Councils”, shadowy 501(c)(3) entities that outwardly exist to coordinate the activities and equipment of police departments.

In reality, NEMLEC was founded in the 1960s, as its own mission stated – till people noticed in 2014 that this was, well, hellaciously racist, among other things – to address “disorder associated with suburban sprawl as people migrated from larger cities, the development of the interstate highway system, the civil rights movement and the growing resistance to the Vietnam War [all of which] threatened to overwhelm the serenity of the quaint, idyllic New England towns north and west of Boston.”


Yep, those darned hippy peaceniks and black radicals wanting outrageous things like peace and justice were a threat to the “serenity” of founding departments in Wakefield, Wilmington, Woburn and five other jurisdictions north of Boston; and 43 other police departments, including my own town of Belmont, found this `urban threat’ message so urgent and compelling that they signed up too. Law enforcement, then and now, is deeply suspicious of people who argue that the status quo should change.

In service of that mission, the LECs’ job nowadays is to coordinate SWAT raids, mostly on minor drug warrants; to foster the militarization of member police departments by pooling high-grade equipment; and to provide military-style training, like “Urban Shield“, that encourages well-meaning law enforcement officers to regard members of the public as the enemy.

NEMLEC and the other law enforcement councils recently settled a lawsuit with the ACLU where they conceded that they were in fact subject to the public records law. Shaffer and Quemere decided to test this out. It took “nearly two months, seven in-person visits, numerous phone calls and emails, and a run-in with the Wilmington police” to get (some of) the records they were seeking. Their story details an agency that is really hoping that nobody finds out what they’re doing, and points up the significant flaws in Massachusetts’ public records laws.

We’re looking forward eagerly to the next installment in this series to see what these hard-won records reveal.

Has the CIA Revived Operation CHAOS?


A local activist came to Digital Fourth with a strange story to tell.

She was stopped early in the morning at a Canadian border crossing. During the stop, she was interviewed inside. During that interview, the border guard who initially stopped her walked in, to by the desk where she was, and handed the interviewer a Post-It note. On the note was her name, with “Operation Chaos” written on it in Magic Marker.

Says our volunteer:

“It was huge and right in my face and they were all perfectly casual about it, so I asked, “What is Operation Chaos? ” and I was told it was a random search program where they pulled people out of line to check for whatever they check for. I had to answer some questions about how long I was in Canada and Boston and what I was doing there. also how long I had lived in Boston in the past and this last round (about a year). They asked if the moving van was locked, it was not, and said they were searching it. They searched it with dogs and did not find anything other than liquor purchased at the duty free shop in New York. It all took about ten minutes once they started searching. I did not have anything illegal with me. […] They were surfing the web, and to be honest, I don’t think any of them were really engaged; it was about 2:30 in the morning. I mean the desk officer was busy looking at his screen when the note was handed to him and he just stuck it to the counter. […] They did not ask me anything about political activities, but they looked over my record for a while I filled out the paperwork. I do not have an arrest record.”

When she got home, she looked up “Operation Chaos” on the Internet, and found that there was an Operation Chaos run by the CIA, which started under Johnson, continued under Nixon, was exposed, and then supposedly ended in 1974. Operation Chaos aimed to identify foreign influence over student protest movements.

Our volunteer has been involved in various peaceful digital activism and social justice movements, and her parents were SNCC and SDS members who were under continuous surveillance in the 1960s and 1970s. Both of these organizations are named as having been targets of Operation CHAOS, which implemented an early form of the phone metadata dragnet made famous by Edward Snowden. She says, “J. Edgar Hoover wrote a letter to the local FBI office asking them to harass my father indefinitely.”

This is all one hell of a coincidence.

Let’s consider carefully what this means.

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We Just Denied Boston’s Spy Center $1.45m In Extra Funding


It’s common to assume nothing can be done to roll back mass surveillance. Truth is, every technology operates within a set of political assumptions about what can and cannot be done with it. Little by little, we can change those assumptions.

Three weeks ago, we caught the Boston Regional Intelligence Center trying to sneak $2.25m for “technology upgrades and integration” into the state budget. Our members started calling Ways and Means legislators, arguing that this would be throwing good money after bad. BRIC uses technology to repress peaceful journalists and protesters; why should they get a cent?

A little surprised at this pushback, legislators reduced the $2.25m to $792,669.

Here’s the exact language from H. 3829, the budget that just passed:

“8000-1001 For the Boston Regional Intelligence Center to upgrade, expand, and integrate technology and protocols related to anti-terrorism, anti-crime, anti-gang, and emergency response; provided that intelligence developed shall be shared with the BRIC communities and other State municipal and federal agencies as necessary; provided further, that BRIC shall provide technology required to access the intelligence with its municipal partners, the State police, the MBTA, the Mass Port Authority, and appropriate federal agencies to assure maximum interagency collaboration for public safety and homeland security…………………………………..…………………………..$792,669”

With this reduction, we just saved MA taxpayers $1.45m. And BRIC is, from now on, on notice that their funding requests will not be smooth sailing.

If you like that we did this, consider donating to Digital Fourth / Restore The Fourth Boston, joining our listserv, coming to our Wednesday 12pm meetings at Voltage Coffee & Art, or attending our monthly evening group (next meeting Sunday, November 1, at Summer Shack).

Don’t Worry: Area Counter-Terrorism Center Laser-Focused on Bicycling Cellphone Thief


If you like your mass surveillance steak sauced in a Keystone Kops level of organizational dysfunction, the Boston Regional Intelligence Center, or BRIC, could be your dream meal.

This story comes via a former Emmanuel College student, who received a BRIC “intelligence bulletin” to all students regarding a man stealing cell phones on his bicycle in the Fenway area (see below). Is it upsetting to have your cellphone stolen by an environmentally conscious thief? Yes. Is it at a level of criminality that warrants shoveling tens of millions of our dollars towards a gee-whiz high-tech surveillance center to gather information on all Massachusetts residents? Uh, probably not. Tell me again when we signed up for that?

Far from focusing on intelligence related to terrorism, in practice, the BRIC concentrates almost exclusively on criminal activity unrelated to any conceivable notion of what “terrorism” actually is. The truth is that the risk we face from terrorism is extremely low, but the continued existence of the BRIC, of 77 other “fusion centers” around the country, of the Department of Homeland Security itself, and of a whole ecosystem of security grifting companies, depends on taxpayers not working that out. So, to keep themselves going, BRIC has to use surveillance to disrupt a broad array of minimally criminal or even entirely non-criminal activity, and redefine that activity as much as possible as being terrorism. We have to be told, repeatedly, that the wolf is at the door, that things are getting worse, and that mass surveillance will actually help make things better. Here at Digital Fourth, we call this the “Bureaucratic Counterterrorism Imperative.”

With that in mind, here are the results of our latest Public Records Act request to the BRIC, which documents for the first time that BRIC does get data from intelligence agency sources.

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MA, Feds Behind The Curve on Warrants for Email Searches

Back in the days of DEC and Wang Computer, there was serious doubt whether California’s Route 101 or Massachusetts’ Route 128 would be at the forefront of the digital economy. My aunt immigrated to Massachusetts to stake out her part of the new digital frontier. And round about that time, when I was seven years old, is also the last time Congress passed an email privacy bill. Called the “Electronic Communications Privacy Act“, by now it might as well be called the “Ordinance Describing Rules Regarding the Transportation of Speedy Telegrams Via Means Faster Than The Horse” for all the good it does. Among other ridiculously outdated provisions, it treated holding onto your emails for more than six months as a crazy-expensive thing only crazy people would ever do, so emails older than that are considered “abandoned” like your curbside trash. Law enforcement therefore don’t need to get a warrant to search it.

Fast-forward to now, and a federal bill to solve this, the Email Privacy Act, now has more than 300 sponsors in the House. That would be more than enough to pass it if it got to the floor, and is more cosponsors than any other bill still being held up in committee. It’s being held up essentially because the SEC and FTC want a free hand to not get warrants:

In a hearing before the Senate Judiciary Committee, representatives of the SEC and FTC claimed that other other types of court orders provide a comparable standard to a warrant based on probable cause. Nothing could be further from the truth. A search warrant – the standard in the constitution – allows access to information only when there is a strong likelihood it will show evidence of criminal violations of the law. That is a high standard that applies only in a narrow class of cases. By contrast the SEC and FTC are seeking access to email whenever it is relevant to civil violations of the law – such as mistakenly filling out a tax form. That is a low standard which applies in many cases. This rule would then apply to every agency – from the IRS to the local health inspector. Agencies shouldn’t be able to highjack reform to seek a digital power grab,” said Chris Calabrese, Vice President for Policy at the Center for Democracy & Technology (CDT)

In reaction to these roadblocks, organizers at the state level, including our fellow chapters of Restore The 4th – SF Bay Area and Restore The 4th- LA, have advocated for stronger state privacy laws, and in California, they just succeeded in passing Cal-ECPA, the strongest email privacy law in the nation.

In Massachusetts, our path to Warrant Protection for Email City has resembled so far, far more the federal path than the one California just chose. Last session, a bill was reported out favorably from committee, and got dropped only on the last day of the session, amid the usual flurry of the close of business. It just came up again at this week’s Judiciary Hearing, the ACLU testified on it, and we support it too. But California has now lit the path for us to follow, and it will matter greatly whether we follow it. Massachusetts residents should not enjoy lesser protections for their emails than California residents, any more than the Sox deserve to lose to the Giants.

MA Senate Maj. Leader Strongly Opposes Fusion Centers. So Do We.

In its October 7 hearing on “Protected Classes. Privacy, and Data Collection Legislation”, the Massachusetts legislature heard impassioned testimony on the fusion centers from Senate Majority Leader Sen. Harriette Chandler. She argued that they represent an illegitimate intrusion of federal surveillance into our everyday lives.

The fusion centers gather a vast array of data on law-abiding Massachusetts residents whom they believe to have been behaving “suspiciously” in some lawful way. This violates the Fourth Amendment, and is also bad policy. Right now, as far as we have been able to determine, no external body ever evaluates the accuracy or appropriateness of the data the fusion centers hold. DHS evaluates them every five years to certify their adherence to DHS procedures for fusion centers; the fusion centers self-certify annually that they are ramping up according to plan, and that they respect privacy and civil liberties. (They give themselves full marks, naturally). That’s it.

We too dislike the fusion centers, and also see them as sinisterly ensnaring Massachusetts residents in a web of surveillance. To us, the question is not so much whether we as a state should regulate the fusion centers, but whether we should fire all their employees, blow up their buildings, and then salt the earth beneath them as a mark of horror for future generations. Still, still, we love that there is a fusion center reform bill, and we warmly support it.

Our five-year vision for the Massachusetts fusion centers differs sharply from theirs.

The bill’s provisions make good, if incremental, sense. They require the fusion centers to audit themselves annually to determine whether they have investigations open that shouldn’t be, and make the report of that a public record; they empower an inspector-general to conduct outside audits; and they specify some metrics whereby the fusion centers can determine how well they are respecting people’s privacy. These are important first steps toward establishing whether anything that the fusion centers do, actually does the rest of us any good; and will prepare the ground better for us to have discussions in future years about closing them entirely.

How Much Does The Press Care About Race and Policing?


On October 7, the Joint Committee on the Judiciary of the Massachusetts legislature held a marathon hearing on “Protected Classes. Privacy, and Data Collection Legislation”.

To be fair, and the Boston Herald both reproduced an AP wire report from Steven LeBlanc that there was a hearing. But the AP mentioned only the part of the agenda dealing with a bill to ban transgender discrimination in places of public accommodation.

I’m not going to argue that transgender rights aren’t important. They matter a lot. But it’s astounding that, in a year when race and policing have been, you know, kind of in the news, only the Bay State Banner gave decent coverage to the fact that the vast majority of the bills considered at the hearing were about police, profiling, warrants and race. In the Boston Globe’s “Politics” section, they had room for two fawning profiles of elected Democrats (Attorney-General Maura Healey has “indefatigable drive and charisma“, and House Speaker Bob DeLeo has a “slimmed-down and healthier” look), but race and policing didn’t get a look in this time.

So this is what happened regarding racial profiling.

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