The Boston Marathon attacks have brought to the surface some of the best and the worst in Massachusetts.
On the one side, many news sources reported responsibly and refused to speculate too quickly and without foundation about who the bombers were or why they might have done what they did. There seems at this stage good evidence on which to base the arrest of Dzhokhar Tsarnaev. Above all, he was taken into custody quickly and alive, and Bostonians will be able to learn more about the motivations behind the attacks.
This is the blog for the Campaign for Digital Fourth Amendment Rights, so unsurprisingly I’m going to focus on some of the Fourth Amendment issues arising out of the attacks; principally, the stop of the Saudi marathoner and the search of his apartment in Revere, and the constitutional issues raised when a householder refuses entry to law enforcement during house-to-house searches for a fugitive.
So we’re out from under the lockdown, and plenty happened while we were “requested” to stay inside. This has been an extraordinary week here in Massachusetts, and we’ll be dealing with the implications of it for some time to come.
Our congratulations go to the members of the public who provided crucial information that helped catch bombing suspect Dzhokhar Tsarnaev. Congratulations also to law enforcement, for proceeding cautiously in apprehending Tsarnaev, resulting in his being taken alive.
Coming up on warrantless.org:
- A two-part discussion of the Fourth Amendment relating to the Boston Marathon attacks, covering racialized “reasonable suspicion”, the case of the Saudi student, and the constitutionality of refusing entry to law enforcement conducting a house-to-house search.
- An update on Wednesday night’s upcoming BU-PAO panel discussion on privacy and security
Tom Brokaw, who in his long career has received every accolade a TV news journalist could receive, reacted on Monday to the Boston Marathon attack as follows:
Everyone has to understand tonight, however, beginning tomorrow morning early there’s going to be much tougher security considerations across the country. However exhausted we may be by them. We have to live with them and get along and go forward and not let them bring us to our knees.
Boston Police Commissioner Edward Davis’s less panicky reaction was much better:
We’ve done as much as we can. Our aim is not to turn this into a police state. We have to allow commerce to occur.
It’s easy to call for more security after what happened on Monday. It’s much harder to recognize that in truth, we were already doing all that we reasonably could to thwart attacks and more.
Today, by the finish line of the Boston Marathon, on the same city block as the church I go to, two bombs went off. I feel shocked and sad beyond belief.
Photo credit: KVLY.
My thoughts and prayers are with those who died or were hurt, with their families, and with all the people stranded in Boston on this cold night.
The former district attorney of Middlesex County, Gerry Leone, has taken to the airwaves to talk about how great the efforts have been before this attack to get a Joint Terrorism Task Force going, how well it has been working together, how smooth the state and federal collaboration has been, and how the appropriate response will be to increase random surveillance. Governor Patrick has also echoed his perspective, talking about the need for increased vigilance and random bag searches on the MBTA, which we have covered, and opposed, before.
It won’t surprise regular readers to know that my perspective on this is a little different and more skeptical. Even while massively and systematically abusing the Fourth Amendment, law enforcement wasn’t able to prevent this attack. The amount of data collected through warrantless electronic means by the centers Leone is talking about has been vast, and none of it, none of it, has thwarted a terrorist attack. Now, once again, they have failed us all.
What kind of hippy would object to spending half of our taxes on war anyways?
The ACLU reported on Wednesday that the IRS may be reading Americans’ emails without a warrant, because all Americans are now terroriststax evasion is just like terrorism look because they can OK jeez you people with all your Constitution this and Constitution thatshut up already!
Previously, we reported on the existence of stingrays, also known as `IMSI catchers’, which are used by law enforcement as mobile cellphone towers. Stingrays intercept location and other data from all cellphones in the area, redirecting the traffic from regular cellphone towers. They can be used to get cellphone data without having even to go through phone companies to get it.
Thanks to the case US v. Rigmaiden and terrific reporting from Kim Zetter on the Threat Level blog at Wired, we now have a much more comprehensive picture of how they work and what they can do. It turns out that Stingrays have been around for longer, can do much more and are much more widespread than we might have supposed, and that how much they are really used may well be unknown to the courts.
Alex from Anthony Burgess’s A Clockwork Orange, which you should read if you haven’t already.
A new study from the Mind Research Center in Albuquerque, N. M., uses functional MRI to predict the likelihood of whether a criminal will reoffend after release from prison. Inmates “with relatively low anterior cingulate activity were twice as likely to reoffend than inmates with high-brain activity in this region.”
Society is developing the ability to identify probabilistically ahead of time categories of people who are statistically more likely to commit crimes. In this case, the anterior cingulate cortex, according to the authors, is associated with error processing, conflict monitoring, response selection, and avoidance learning, and they are working on drug therapies to stimulate activity in that area of the brain.
Scholars have expressed serious and varied reservations about overinterpretation of fMRI, most notably that the brain’s ability to rewire itself creates serious limitations in our ability to interpret fMRI activity in a particular area of the brain as being connected with particular species of activity outside the brain. The astounding case of the French civil servant with no brain suggests that the brain is more plastic and more bizarre than we have yet begun to understand.
However, that will not stop policymakers from seeing the glitzy surface of studies such as this, and constructing on top of them a belief that they will be able to reliably detect crime ahead of time. Therefore, our prediction of the week for our ongoing feature “Privacy Concerns of 2020″ is that whether the science supports it or not, law enforcement will be using brain scans to identify recidivists ahead of time.
The newly formed Massachusetts chapter of PANDA is bringing forward legislation on Beacon Hill to prevent the indefinite detention of American citizens under the National Defense Authorization Act, or NDAA.
The US government in these cases was exceptionally anxious to preserve authority to detain anyone for any length of time, provided they could be vaguely associated with al-Qaeda. Many people expected that President Obama would abandon such arguments and restore the rule of law. In reality, he has allowed the power of indefinite detention to pass into law. In 2012, he issued a signing statement to that year’s NDAA (it’s an annual thing), claiming that he would never use the power of indefinite detention. That’s not even legally binding on him, let alone on his successors. In 2013′s bill, even that signing statement has disappeared from view. Hence, people in many states have been proposing bills like the Liberty Preservation Act.
Over the fold, for the details of what the Liberty Preservation Act would do!
One Catch-22 of criminal justice reform is that law enforcement will always ask for more powers, whether crime is down or crime is up. If crime is up, they need more powers to deal with criminals who have “gotten the upper hand.” If crime is down, they need more powers to keep it from rising again.
Mayor Menino attributes the drop to community policing and neighborhood watch groups, assisted by the more severe winter. It’s almost as if militaristic and confrontational policing is actually less effective at reducing crime than people like to think.
So, we have a simple challenge for Attorney-General Martha Coakley. How far does crime have to fall, before you back off on your biennial demand for vastly expanded powers to take out electronic wiretaps when investigating minor crimes? Lazy, “one crime is too many” thinking is not enough when our Fourth Amendment rights are on the line. We don’t just need better community policing; we need an AG’s office that is willing to look at criminalization as a problem rather than looking at every person drawn into the criminal justice system as a victory for them.
Shepard Fairey’s artwork for Internet anti-censorship campaign
Americans are used to thinking of ourselves as “rights pioneers.” But the American constitution is particularly difficult to amend, and is therefore slower than most to respond to a rapidly changing technological and cultural landscape. Justice Brandeis’s 1890 law review article on “The Right to Privacy” conceived of the Constitution as embodying a central, unarticulated “right to be let alone”, expressed as the “right to an inviolate personality.” Such a right was eventually recognized in the context of marriage by the US Supreme Court in Griswold v. Connecticut (1965), famously arguing in much-mocked language that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The difficulty with embodying privacy as a right consists in the fact that nobody can define it clearly in a way that is not highly contingent on time-specific cultural and generational norms; we cannot say now, in 2013 and after the passage of (to name only two) marital rape laws and gay marriage laws, that the norms governing marital privacy are the same now as when Griswold was decided. Thus, culture and technology continually gallop ahead, while the law is still getting saddled up. In this post, we explore some innovative efforts to help the law catch up.