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.
Ben Wittes of the Brookings Institute has a new article on the popular security blog Lawfare in which he worries that the intelligence project has lost legitimacy in the eyes of the public.
the threat environment America faces is growing ever more complicated and multifaceted, and the ability to meet it is growing ever-more-deeply dependent on first-rate intelligence. Yet at precisely the same time, the public has grown deeply anxious about our intelligence authorities and our intelligence community is facing a profound crisis of legitimacy over its basic authorities to collect.
He ascribes this to “technology”, but technology is not the reason for public skepticism here. The immortal Marcy Wheeler over at Emptywheel correctly points out that bringing the nation into war based on false intelligence may just have played a role in public skepticism. Trevor Timm would probably add that lying to get cases dismissedshould create further public skepticism about intelligence agents’ claims. However, there’s a still larger question raised by the article.
Let’s talk about the “complicated and multifaceted threat environment”.
A realistic assessment of the threats to American national security today, relative to 25 years (1989), 50 years (1964) or 75 years ago (1939), would be as follows.
America faces today no major threats to its way of life.
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!
The Comprehensive Community-Police Relationship Act of 2014 has just been introduced in the RI Senate. This is the result of a compromise between civil-rights people working on the issue and Rhode Island’s police. It doesn’t have everything that civil-rights people might want, but the civil-rights people who negotiated it are confident that it doesn’t take any backward steps in people’s legal rights. No hearings have been scheduled yet. In the past, many bills addressing racial profiling have failed due to public police opposition, but this time the RI Police Chiefs Association says that they will not be testifying against the bill.
This is a significant step forward if we can pass the bill. Rhode Island already has a law on the books that says racial profiling is illegal, like about 20 other states, but we don’t yet have a law that takes serious steps to reduce racial profiling. As far as I know, RI will be the only state (if this bill passes) that will take enforceable steps to reduce racial disparities in community-police interactions.
The proposed law also includes some other good things for civil liberties:
[We welcome our newest contributor, Gregg Housh, an activist focused on internet freedoms, censorship, over-prosecution and Anonymous. This article is cross-posted at 0v.org. - Alex.]
It was February 6th, 2011 that I had to give some bad news to my wife. Her pseudonym (one she calls “as subtle as John Zeus”) was on the list of supposed “lieutenants of Anonymous” that Aaron Barr of HB Gary Federal had compiled. Barr’s intention was to identify the people involved in various projects on the AnonOps IRC network by connecting them to real social network profiles, and then to somehow parlay this data into brownie points with the FBI. And there she was, in the cross hairs.