Congress, Don’t You Dare Revive The PATRIOT Act

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In the runup to last night’s sunset of three PATRIOT Act authorities, TV-watchers were barraged with lurid threats of “horrific terrorist attacks and violence” that would be our lot if we dared to let go of any of them. And then the authorities did sunset, and we all woke up this morning, still alive, and mysteriously unmassacred.

Look around you. What you see outside is that apocalypse’s first day, and … we’re OK. A small part of the surveillance state has stopped collecting new data. In the full daylight, cops are still stopping suspects. In the shadows, PRISM collection continues, unreformed. But this morning proves that Section 215 was never needed. The dragnets enabled under it didn’t do a blind bit of good.

This is hard to swallow, but it’s true. There never was, on this topic, any “tradeoff between privacy and security”. There never was any well-intentioned desire to Keep Us Safe™. The NSA felt able to launch mass metadata dragnets, and they did. That’s it. No-one really bothered analyzing whether the dragnets really worked. It wasn’t about effectiveness, or about safety. It was about fostering a culture of submission to authority.

In the same way, more locally, for twenty years and more, the NYPD wasted millions of dollars in staff time, conducting suspicionless “stop and frisks” of millions of people who had done nothing wrong. When questioned, they argued that without stop and frisk, lawlessness would run rampant. And then, when they were forced to stop last year, what happened? Crime fell.

In the same way, after 9/11, we took the Fourth Amendment, and broke it. We chose to torture people, run secret prisons, and launch illegal wars, all, again, to Keep Us Safe. It was, and is, for nothing. The bombs we dropped, the pain we caused, the lives we took, were all in vain.

We should be under no illusions now. The claim that Section 215 was needed, like the claim that the Iraq War was needed, were always nonsense. In all likelihood, the claims we need the other mass surveillance systems are nonsense too. Don’t go telling us that we can’t do without, say, mass internet surveillance under Section 702 of the FISA Amendments Act, or without full take of entire countries’ audio and Internet communications under Executive Order 12,333. We’ve done without such things before. We can do without them again. We gain no safety from submission, and it should not have taken fourteen years to learn that lesson, stop submitting and start standing up straight again.

Here’s the bad news. Not only the sunset happened last night. The Senate also voted for cloture on the USA FREEDOM Act, which would put these three expired provisions back into law, by a margin of 77 to 17. On Tuesday, they’ll vote on the bill itself, and it looks likely, based on the cloture vote, to pass. Even if there are no amendments, the President will sign it. So on the third day after sunset, Section 215 will rise again, like a new-bitten zombie, and start looking for prey. Undead Section 215 will be a little different – for example, instead of holding the dragnet data itself, the NSA will pay Internet and phone companies to hold onto it, and it’s likely that when it passes it will allow the NSA to instruct companies to format the data in such a way that the NSA can query it almost frictionlessly. Permanent sunset will mean the NSA actually has to collect less, and that’s so unimaginable to Senators – well, to all but a very few Senators – that they are racing to restore the lapsed parts of the PATRIOT Act and deprive you and me once again of the liberties we have so improbably won back.

So I say to our more servile Senators: Don’t you dare restore the PATRIOT Act. You aren’t here above all to Keep Us Safe™; you’re here above all to protect the Constitution. Endorsing the USA FREEDOM Act breaks that oath. Look at the side the fearmongers have taken, and the profits they stand to make, and vote the other way. Vote No on the USA FREEDOM Act tomorrow, and then let’s discuss, deeply, seriously, openly and fearlessly, what kinds of surveillance the Constitution will allow. The American people are ready to breathe more freely and live their lives less watched. It’s time to move forward.

Our New Bill H. 2170 Mandates Police Bodycams, Protects Data

"Our police department in Lynn, MA likes both kinds of music - country AND western..."
“Our police department in Lynn, MA likes both kinds of music – country AND western…”

When Michael Brown was shot in Ferguson, MO, there was no video of it. When Denis Reynoso was shot in Lynn, MA, there was no video of it. But what if there had been? And what if police bodycams could significantly reduce incidents of use of force by police?

Responding to this need, Digital Fourth took model legislation developed by the Harvard Black Law Students Association that mandates bodycams for police departments, modified it for Massachusetts, and got a bill filed on Beacon Hill. This session was the first time our gallant volunteers have tried anything like this, and we got a strong response. Sen. Jamie Eldridge filed the bill in the Senate; Rep. Denise Provost filed it in the House; and it has already attracted as cosponsors Rep. Benjamin Swan (D-Springfield), Rep. Mary Keefe (D-Worcester) and Rep. Byron Rushing (D-Boston).

The bill is a result of months of consultation with interested police departments and grapples with some difficult issues – how would bodycam data be used? When would officers be required to record? What about the consent of the people being filmed? It sets up a blue-ribbon committee to review traffic stops, pedestrian stops, and bodycam footage, requires police officers to carry bodycams in almost all circumstances, and sets strong controls on the use and dissemination of the footage.

As this appears to be the only bodycams bill that got filed in the 2015-16 session, we believe that our bill represents the best chance of fostering a discussion about reducing on-the-ground unreasonable searches and seizures – the bread and butter of the Fourth Amendment – and that it could substantially improve relations between the police and communities of color in particular. Community-police relations directly affects those working on policy initiatives: One of the people advising on our bill, Segun Idowu, chairman of the Boston Police Cameras Action Team, was arrested at a Black Lives Matter protest and is currently facing trial.

“Our research, inspired by current events, confirms that community/police relations may be improved with the use of this technology, as bodycams will provide a truth that has no color,” said McKenzie Morris, President of the Harvard Black Law Students Association. “This legislation, albeit a first step, is a necessary endeavor for the pursuit of transparency and accountability in policing.”

Black, Brown & Targeted: ACLU Report Reveals Massive 4th Amendment Violations by Boston PD

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Finally, after many years of effort, the ACLU of MA has been able to secure release and analysis (by a third party) of data on police stops in Boston. What was found should grossly offend anyone with a belief that people ought to be equal before the law.

Their data spans 2007-2010, covering reported stops that did not result in arrest. During that time, for fully three-quarters of such stops, the reason the police stated for the stop was not suspicion of any identifiable crime, but simply “Investigate Person.”

Investigate Person?

Continue reading “Black, Brown & Targeted: ACLU Report Reveals Massive 4th Amendment Violations by Boston PD”

Panel Discussion on Privacy and Security, BU, April 24

If you are in the BU area on Wednesday evening, come by to hear interesting speakers talking about privacy and security in the wake of the Boston Marathon attacks. Panelists will include Alex Marthews (that’s me!), James O’Keefe of the Massachusetts Pirate Party, and Gregg Housh. RSVP here.

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The Fourth Amendment and the Boston Marathon Attacks: Racialized “Reasonable Suspicion” and the Search of the Saudi Marathoner’s Apartment

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.

On the other side, panic, prejudice and the needs of the news cycle fueled an almost certainly unconstitutional search of an innocent Saudi marathoner’s house, an attack on a Muslim doctor in Malden, a call for genocide of Muslims, and a martial law-style lockdown of a vast area of metropolitan Boston.

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.

Follow me below the fold for the first of these!

Continue reading “The Fourth Amendment and the Boston Marathon Attacks: Racialized “Reasonable Suspicion” and the Search of the Saudi Marathoner’s Apartment”