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

by Alex Marthews on July 25, 2014

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

by Alex Marthews on July 22, 2014

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

by Alex Marthews on July 18, 2014

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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At HOPE X: Artist Essam Attia, cool research, and Restore The Fourth!

by Alex Marthews on July 18, 2014

The tenth biennial Hackers on Planet Earth Conference starts today and runs through Sunday at the Hotel Pennsylvania in NYC.

We’ll be there as part of the Restore The Fourth delegation (I’m the national chair of Restore The Fourth). I and Zaki Manian will be hosting a radio show 10am-11am on Radio Statler, the HOPE community radio station. We’re honored to have on our show controversial Maine-born artist Essam Attia. If you can’t be at the conference, check out the stream on radio.hope.net!

You can also check out the Restore The Fourth booth (I’ll be covering it Saturday afternoon), sign up as a member here ($60 individual/$20 student), or come hear a talk on our research into the effects of the Snowden revelations on search engine behavior.

See below the fold for more on the Attia case!

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

by Alex Marthews on July 16, 2014

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!

The NSA Aims For There To Be No “U. S. Persons”: Traffic Shaping and the Legacy of Verdugo-Urquidez

by Alex Marthews on July 15, 2014

Credit: theyliewedie.org

Credit: theyliewedie.org

In 1990, the Supreme Court fatefully ruled 6-3 in Verdugo-Urquidez that the Fourth Amendment did not exist for foreign nationals who had not established a sufficient nexus with the United States to be part of its “people.” In a blistering dissent, Justices Brennan and Marshall (peace be upon them) argued that “If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them.” Brennan and Marshall argued that Constitutional rights apply whenever the U. S. government seeks to exert its authority; it is not possible for it to be legal for the U. S. government to act outside the boundaries of the very Constitution that created it.

Time has shown us all how right Brennan and Marshall were.

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

by Alex Marthews on July 15, 2014

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”

by Alex Marthews on July 13, 2014

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.

MA Fusion Center Reform Stalls Out

by Alex Marthews on July 10, 2014

leo_reynolds_spy_modified

Digital Fourth’s second major campaign is to close the fusion centers, which are like mini-NSAs that gather data on residents’ “suspicious activities” in violation of the Fourth Amendment. Now, the major fusion center reform bill in the Massachusetts legislature has died in committee. In this post, we’re exploring why the Free Speech Act was important, and the challenges that lie ahead for fusion center reform in the Commonwealth.

Fusion centers aim to “encourage effective, efficient, ethical, lawful, and professional intelligence and information sharing; and prevent and reduce the harmful effects of crime and terrorism.” In practice, thanks to devastating reporting by the ACLU and by the US Senate, we know that their “Suspicious Activity Reports” (SARs) system has never actually thwarted a terrorist attack; that they routinely spy on peaceful dissidents and collect unverified, sometimes racially motivated gossip; and that the ocean of data on which they rely is so vast that they cannot prioritize and synthesize it in a timely way. Our own report on Massachusetts’ Commonwealth Fusion Center uses their own documents to demonstrate major threats to Constitutional protections from the fusion centers’ work.

To his everlasting credit, Rep. (now Sen.) Jason Lewis introduced the Free Speech Act (prior analysis here) to deal with some of these issues. Sadly, the Judiciary Committee has not moved forward with that bill this session, though they advanced another important but less controversial electronic privacy bill.

This points up two problems, even in Massachusetts, of fusion center reform. One, it’s hard to get people up to speed on fusion centers. They’re a very low-profile part of the surveillance state. People get more easily fired up about the NSA, because it has been all over the news for a year, but it’s hard to grasp the fact that every state government is complicit in mass surveillance and has the power to defund their own mass surveillance efforts. The evidence is already out there for lawmakers not only to advance the Free Speech Act, but to wonder whether it goes far enough; but both fusion centers in Massachusetts have so far failed to respond to our FOIA requests seeking transparency into their activities.

Sen. Lewis comments:

[the Free Speech Act] “is an important step in reining in the data collection of fusion centers, and would protect individuals from the collection of data relative to those activities covered by the First Amendment. It is critical that we strike the right balance between security and privacy protections, and I believe that this legislation accomplishes just that. I am eager to continue to move forward with this legislation, either this year, or upon filing it again next session.”

If You Want Privacy, Put A Ring On It? RI Supreme Court Rules No Expectation of Privacy in Text Messages on Girlfriend’s Phone

by Alex Marthews on July 8, 2014

Being all of 36, I’m not down with the young’uns and their “hippety-hop” and “texting”. But I glanced up from my afternoon’s abacus calculations of the expected height of the Nile floods and saw that the Rhode Island Supreme Court has declared that a criminal defendant has no expectation of privacy in “text messages” that they send to another party (viz. a girlfriend with which said defendant had a daughter), and that police found when they searched said girlfriend’s “telephone.”

If they had been married, presumably the law would recognize a spousal communications privilege. But gee whillikers, it’s 2014, not 2064, and staunchly Catholic Rhode Island will be blowed if it starts making exceptions for mere “girlfriends”. If you wanted privacy, then you should have PUT A RING ON IT.

Beyonce has nothing on the Rhode Island Supreme Court.

Beyonce has nothing on the Rhode Island Supreme Court.

Michael Patino, the Providence Journal reports, is accused of murdering a son he had by a prior girlfriend. The Rhode Island Supreme Court ruled certain kinds of evidence inadmissible – a confession that was the fruit of a coercive interrogation, and evidence from the warrantless search of Patino’s own phone.

Once again, then, the police got themselves in a heap of trouble by not going through the (fairly trivial) process of obtaining a warrant – something that, in the context of a child murder investigation, would almost certainly have been given – and now want the courts to correct a defect that arises from their unwillingness to dot the is. How much has this case cost the state, when simply obtaining a warrant would have removed any ground for Patino to object and would have made it more likely that justice would be done?

This is what I don’t get about warrants. Warrants are almost never refused. They’re simply an external check that the police are doing what they should. Yet police departments fight warrants tooth and nail, and act like the Apocalypse will come if they have any external oversight of their work. The truth is that in this country, we sometimes very literally let police get away with murder, even when caught on video. Officers routinely break the laws they expect the rest of us to follow. City governments are terrified of offending their police chiefs, and those who do offend them sometimes risk their lives.

So the question is not whether oversight is already so onerous that a little more of it will lead to a crime wave. The question is whether we allow to grow up in our midst an unaccountable paramilitary force able to hold our civilian government to ransom.