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.
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.
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.”
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.
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.
Our phone records and our email metadata convey a lot of information. It’s because of this that the Supreme Court has just ruled unanimously that the police need a warrant to search your phone when making an arrest. But, thanks to the third-party doctrine, the same rule doesn’t yet straightforwardly apply when the police request your information from your phone company, from Dropbox, or from Google.
A quick canter through my own Google records, for example, would disclose communications with political radicals, pirates, hackers, criminal suspects and foreigners of all kinds (hey guys! love you all!). The fact that Gmail holds my contact lists rather than my writing them down with a quill pen in a vellum notebook, should not mean that law enforcement should be able to access them without getting a warrant. Seriously, I’ll buy the vellum if you make me, but have you seen how much that stuff costs? It’s like 35 bucks a sheet. Plus, it would take around ten years for the monastic scriptorium to write them all out.
This alone took over a month.
So there’s a bill – we’ve reported on it before – which would solve this problem, and apply ordinary warrant protections to your phone records and electronic records held by neutral third parties. It’s a good bill, and the Massachusetts Judiciary Committee just reported it out favorably. The legislative session ends at the end of July, so if this bill is to pass, we need a lot of calls to go out in the next couple of weeks. The ACLU of Massachusetts has sent out an appeal for people to call their legislators:
Massachusetts residents: Take action now! Call your state senator and Senate president Therese Murray. Tell them you want your privacy, and to quickly pass the Electronic Privacy Act! Like the Supreme Court said, if police want to spy on us, they should get a warrant!
This is the twenty-first century, not the sixteenth century, and it’s way past time for our communications to be protected, whatever form they are written in. So get out there and make the call!
Digital Fourth’s first and longest-running campaign was against a bill that Martha Coakley, the Massachusetts attorney-general and now gubernatorial candidate, described as her “top legislative priority” for the 2013-14 legislative session. On June 30, we succeeded: The Judiciary Committee killed S. 654, the “Act Updating the Wire Interception Law”.
When it was proposed, this bill could hardly have had more heavyweight support. The then-Senate Chair of the Judiciary Committee, Katherine Clark, co-sponsored it, as did the House Chair. The AG, the DAs, and the police were all behind it. So what happened?
Today, we’re interviewing one of the nation’s foremost Fourth Amendment scholars, Professor Orin Kerr of George Washington University. Professor Kerr has written extensively on the law of national surveillance, and how the Fourth Amendment’s warrant requirements apply under current law and practice to national security investigations. Since the surveillance revelations of last year, his research has become a touchstone for people on both sides of the surveillance debate.
Professor Kerr: what got you interested in Fourth Amendment law in the first place?
Today’s news in Wired that the federal government is willing to send in the US Marshals to prevent disclosure of how local police departments are using stingrays, makes it seem that what they’re hiding is pretty important.
Our friends at public information service Muckrock.com are launching a new research project to find out exactly what police are doing with this kind of data. Shawn Musgrave describes their project below. We strongly encourage supporters of Digital Fourth to help them fund this important work. We don’t know yet whether any police departments in Massachusetts are using this secrecy-laden technology – wouldn’t you like to find out?
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.
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.