The Theory of Surveillance: The Panopticon and the Stainless Steel Rat

As we residents of Massachusetts gambol heedlessly downward from the Mountains of Liberty toward the Swamps of Oppression, let’s take a brief breather to consider a more general commentary on surveillance.

Philosophical examinations of governmental surveillance powers center on eighteenth-century founder of utilitarianism Jeremy Bentham and twentieth-century philosopher Michel Foucault. The key concept used to inform their thinking is Bentham’s notion of the Panopticon:

The Panopticon: the ideal prison
According to Bentham, the ideal prison

The Panopticon was a prison with the cells in the outside circle and the guard tower in the center. Each prisoner was, at all times, perfectly visible to the guards. The guards were invisible to the prisoners, so prisoners had to assume that they were being permanently watched.

Continue reading The Theory of Surveillance: The Panopticon and the Stainless Steel Rat

Microscope Monday: Massachusetts’ proposed Electronic Privacy Act (S. 796 / HD 1014)

microscope

Howdy and good morning, lovers of the Internet freedoms!

It’s time for another in our “Microscope Mondays” series, where we take a good hard look at pending legislation here in Massachusetts relevant to surveillance. Previously, we’ve covered a praiseworthy effort to restrict the use of drones for law enforcement purposes and Martha Coakley’s should-be-better-known “Let’s Wiretap All Of The Things Even Though Crime Is Down” bill. This week, it’s the turn of S. 796 / H. 1684, “An Act Updating Privacy Protections for Personal Electronic Information”, sponsored by Senator Karen Spilka and departing Representative Marty Walz.

Continue reading Microscope Monday: Massachusetts’ proposed Electronic Privacy Act (S. 796 / HD 1014)

Raytheon’s “Riot” Software: Big Data Analytics and Data Security for Activists

I run the Campaign for Digital Fourth Amendment Rights out of an incubator in Cambridge, Mass. Many startups at the incubator base their innovative products around “big data”, and the concept attracts substantial academic attention locally as well.

It’s natural that law enforcement would be interested in employing the same techniques, accessing information that people put on the Internet and on their devices about themselves, their location and their habits. Massachusetts-based Raytheon, the world’s fifth-largest defense contractor, has developed a product for law enforcement called “Riot”. Riot acts as a search engine, gathering information about people from Facebook, Twitter, Foursquare and other places. Raytheon refers to Riot as “extreme-scale analytics”, possibly because “wicked awesome analytics” was already trademarked. The Guardian has found a video from inside Raytheon demonstrating the software’s capabilities.

Continue reading Raytheon’s “Riot” Software: Big Data Analytics and Data Security for Activists

By 2020, Stingray Will Be Launched! New Doohickey Allows Police To Get Everybody’s Cellphone Locations Without Going Through the Telcos

stingray_stamp_cropped
Yes, since you ask, that is a “Terror Fish”.

We continue our series updating you on the exciting new world of mass surveillance you should expect in a few short years (previous posts include discussions of real-time life recording, terahertz surveillance and indoor cellphone tracking), by bringing you the Stingray.

The Stingray: essentially a cellphone tower that can move around.
The Stingray (image courtesy of the Wall Street Journal)

Continue reading By 2020, Stingray Will Be Launched! New Doohickey Allows Police To Get Everybody’s Cellphone Locations Without Going Through the Telcos

Not A Clown Car Law: Comparing Massachusetts’ Electronic Wiretapping Laws to Connecticut’s

The way you hear Martha Coakley tell it, Massachusetts’ laws relating to when you can and cannot issue an electronic wiretapping warrant are about as effective as using a clown car to fly folks to the moon. They were passed in the 1960s, man! Don’t you know you can’t trust any law over 30?

Of course, the Bill of Rights is nearly 220 years old, and many people seem somehow to find it important despite being oldy oldy old old. So we figured, why don’t we take a look at what other comparable states do, and see if Massachusetts’ laws look comically outdated compared to them?

Let’s try our friends over in dull-but-wealthy Connecticut! What does Nutmeg State law enforcement have to do to get their donut-frosting-smeared mitts on one of those sweet, sweet electronic wiretapping warrants?

Continue reading Not A Clown Car Law: Comparing Massachusetts’ Electronic Wiretapping Laws to Connecticut’s

Microscope Monday: Massachusetts’ new drone privacy bill

A microscope, steampunk style.
A microscope, steampunk style.

Since our earlier analysis of the repellent new bill expanding electronic wiretapping was well-received, we’re starting an official series analyzing proposed Massachusetts legislation, called “Microscope Monday”.

In honor of the efforts to organize a new drone privacy group here in Massachusetts, this week’s bill is S. 1664 (Hedlund) / H. 1357 (Garry), “An act to regulate the use of unmanned aerial vehicles”.

State Senator Robert Hedlund is introducing this legislation in the Massachusetts Senate. Hedlund is a Republican and is the Assistant Minority Leader. His district covers Cohasset, Duxbury, Hingham, Hull, Marshfield, Norwell, Scituate and Weymouth. State Representative Colleen Garry is introducing the legislation in the Massachusetts House of Representatives. She is a Democrat, and her district covers Dracut and Tyngsborough.

This is not a long bill, but it’s a good one, and we at Digital Fourth commend the sponsors for introducing it. It’s currently in the Committee on the Judiciary (House) and the Committee on Transportation (Senate).

Continue reading Microscope Monday: Massachusetts’ new drone privacy bill

That Didn’t Take Long: Fugitive Accused Cop-Killer Christopher Dorner Accused of “Domestic Terrorism”, Will Become First US Citizen on US Soil Targeted By Drones

If you needed any further evidence that it’s unwise to permit electronic surveillance to catch “terrorists”, USA Today has just provided it:

Dorner has been accused by police of the shooting deaths of three people, one of them a police officer and another the daughter of a former officer. […LAPD Police Chief Charlie] Beck said. “This is an act, and make no mistake about it, of domestic terrorism. This is a man who has targeted those who we entrust to protect the public. His actions cannot go unanswered.”

Dorner certainly seems to be guilty of multiple murders, and to have a beef with the LAPD over racist practices he witnessed as a serving police officer. But it seems that the chief of the nation’s second-largest police force has no goddamn clue what terrorism is.

Continue reading That Didn’t Take Long: Fugitive Accused Cop-Killer Christopher Dorner Accused of “Domestic Terrorism”, Will Become First US Citizen on US Soil Targeted By Drones

Alex Marthews, Digital Fourth President, and Jamie O’Keefe of the Mass Pirates, on Two Hotheads Radio discussing the Mass. electronic wiretapping bill

Transcript runs from around 11-20 minutes:

HEATHER MACK (host): We have some guests in the studio. We have Jamie from the Mass Pirates Party, whom we’ve had on before. We also have a new guest, Alex Marthews, from the Campaign for [Digital] Fourth Amendment Rights, also from the Pirate Party [sic], here to talk a little bit about Massachusetts and the new Coakley bill, “An Act Updating the Electronic Wiretapping Laws”, and generally about Fourth Amendment rights, particularly online. So tell us a little about that, about this new Coakley bill, and why we should be very afraid!

ALEX: The main thing to understand about this bill is that this is not a new thing. This is something that the Attorney-General’s office in Massachusetts and law enforcement in Massachusetts tries to do very regularly. Every two-year session, they try to what they call “update” the electronic wiretapping law. And, by “update”, they mean, “remove all reasonable constraints on” electronic wiretapping in Massachusetts. They’ve been trying to do this for a long time. Every time it comes back, it comes back a little different. Last session, it was all about financial crime. This time, because of the terrible tragedy in Newtown, it’s all about gun crime…

HEATHER: Oh, yep.

ALEX: …and keeping us safe from school shootings. It’s exactly the same ideas. So what they want is removal of all constraints on electronic wiretapping, but they’ll hang it on whatever the controversy of the day is, in order to get it done.

HEATHER: Absolutely.

ALEX: So what the law involves, what they’re proposing, is that it won’t just be that they can do electronic wiretapping when it’s in connection with organized crime or other very serious crimes. It could be in connection to things that are not really terribly serious. Simple marijuana possession is one. Manufacturing…

HEATHER: You know how much of a threat that is. [laughs]

ALEX: It’s an incredible threat, and anyone who possesses marijuana is a terrorist by definition.

HEATHER: [Laughs] We all know that.

ALEX: I know, I know.

HEATHER: It’s quite the terrorist bunker we’re operating out of here.

ALEX: I, for one, welcome our new attorney-general overlords, and I hope they’ll be doing something about that. The…if you manufacture arrowheads in the Commonwealth, then that will count as a weapon, and therefore make you subject to an electronic wiretapping warrant…

HEATHER: What is the point? What is the point? [Laughs]

ALEX: The point? Well, they like to say…

MIKE CANN [host]: Unlimited government power.

ALEX: Yeah, that is exactly it. It is not about reducing crime. Crime is about as low in the Commonwealth as it has ever been.

MIKE: Record lows.

ALEX: It’s lower than at any time since before 1968. And so, you gotta ask yourself, it’s gotta be about the power. It’s not the case – they try to argue that criminals have “got the upper hand” here in Massachusetts. Well first, if they have the upper hand, doesn’t that reflect poorly on them? Isn’t that their job?

JAMIE: But they don’t have the tools, is what they’ll say.

ALEX: Ach. But they do not need these tools!

HEATHER: Where’s the evidence of these far-reaching underground criminal syndicates that are…

MIKE: Well, now it’s about the guns. Now they’re saying that because of the school shootings and the gun violence…

HEATHER: Oh, because Adam Lanza needed the Internet…

ALEX: Adam Lanza basically didn’t use the Internet.

HEATHER, MIKE: No.

ALEX: He didn’t even have a Facebook profile. Electronic wiretapping would not have done a thing.

HEATHER: Exactly.

ALEX: But let me tell you one thing that is in this law that is very interesting that I’ve come across. They’ve introduced specific language trying to legalize electronic wiretaps in “switching stations”. Switching stations are phone company facilities.

MIKE: Wow.

ALEX: What they wanna do, it appears, is to be able to put a wiretap in your local AT&T facility which will then tap everything coming through that facility. We are a long way here from the protections of the Constitution.

HEATHER: Yeah, it’s true.

MIKE: And that means no oversight by a judge, right? You see, that’s what –

ALEX: Well –

MIKE: – a warrant is, having a judge having some reasoned suspicion to look through your papers, right?

ALEX: Well, let me be clear about this. The electronic wiretapping warrants would be reviewed by a judge. They’ve backed off from the stuff they were doing in previous sessions, where they were saying, no, no, it doesn’t really need to be done by a judge. But this is the first time they’ve introduced this idea of mass surveillance at phone company facilities, and I am very disturbed by this.

MIKE: And what rules would they have about how long they would keep those files, and the record-keeping, I mean…

ALEX: Well, I’m sure they will have rules…

MIKE: Right.

ALEX: but they’re not telling you what they are yet.

MIKE: I know.

JAMIE: Neither does the NSA, and they already do that.

MIKE: I know. Isn’t that a problem with a lot of this stuff, that there’s no…you know, to back into the TSA thing we’re doing today, it’s about the oversight. I mean, the fact that we had this protest, we found out more information on what they’re doing, because now they have to answer to the press, ’cause they’re being asked about it, and I think a lot of this activism is all about that – is to get them to give us information, ’cause we never – when the Feds do stuff, and now the states wanna be like the Feds, I mean, this is what it comes down to in a lot of respects, is these federal laws have been around for awhile now, and now states are doing civil practices, no warrant needed. They’re gonna be able to spy on us, on anyone they want. I mean, look at the marijuana movement that we – Heather and I have been, you know, championing and part of. You have medical marijuana in Massachusetts. How easy is it for them to claim that anyone involved in medical marijuana – supplying cannabis to patients – now I’m a money-launderer – they’re gonna trace all your phone calls, they’re gonna read all your emails, they’re gonna document everything about you with no warrant needed, in the State of Massachusetts. Is that what we want?

JAMIE: Well, it’s not what we want, but one of the things you have to remember of course is that the Attorney-General now, or even…

MIKE: Right now…

JAMIE: …can go, in different counties even, can go to Twitter, and say, “Give us all of your direct messages”, can go to Facebook and say, “Give us all this information”, and they don’t even – Facebook, or Google, or Twitter, doesn’t even need to tell you that all of this information is being gotten.

MIKE: Yeah, this is what’s so…you know, I’m glad you brought that up, Jamie, ’cause it seems like in so many of these cases, not only should we be saying no to the government, allowing them more of a reach, allowing them more power in this situation. We should be hassling them to help us and protect us, and come up with some laws to actually protect our privacy, protect our rights, from a lot of the – like, there’s no oversight on any of this, anywhere, and it’s just getting out of control.

JAMIE: But that makes their job harder, and they certainly don’t want their job to be harder.

MIKE: I know, it’s a Catch-22, isn’t it? [crosstalk]

ALEX: But we’ve gotta get…we’ve gotta develop the discussion. We gotta make it a more mature discussion. It can’t be simply the discussion that we’ve been having here in Massachusetts, where law enforcement comes up with something that will make their life easier, and we all go, oh, it makes life easier for law enforcement, therefore we must do it. No. The Fourth Amendment would not exist, and the Fifth and Sixth and Eighth Amendments would not exist, if all that mattered was making life easy for law enforcement. If…There are plenty of things that law enforcement wants to be able to do, there are plenty of things that would make life easier for them to do, that are not allowed because of the Constitution. And I’m sorry guys, it takes you longer, it costs you more money, but them’s the breaks. You’re in America, you’re not in North Korea, you have to put up with it.

HEATHER: [laughs] Not yet.

By 2020, Terahertz Surveillance Will Be Here, and the NYPD Will Love It

Once again, Mayor Bloomberg’s private army is in the vanguard of new surveillance technologies. The NYPD has just taken delivery of a portable machine capable of detecting the terahertz radiation emitted by every human being. It allows them to remotely detect guns or other inorganic illegal materials being concealed under people’s clothing. Suspects! We meant suspects’ clothing! We didn’t mean accidentally to suggest that the NYPD would search people just for standing around and not being guilty of anything. That would be ridiculous.

ure, it looks clunky now, but by 2020 it'll be handheld and have ten times the resolution.
Sure, it looks clunky now, but by 2020 it’ll be handheld and have ten times the resolution.

This raises some fascinating Constitutional issues, and as usual, Fourth Amendment legal superstar Orin Kerr is right on top of it:

Use of this technology raises two primary Fourth Amendment questions. First, does it constitute a search under Kyllo v. United States? More specifically, does Kyllo apply when the device is used to obtain details from inside a person’s clothes rather than inside a home? And second, if use of the device is a “search” under Kyllo, what is the standard for when such a search is reasonable? Do you match the Fourth Amendment standard for a “virtual frisk” with the existing standard for a physical frisk? Or is the virtual frisk more or less invasive than the physical frisk in a way that would require more or less cause? Interesting questions. […] A fair starting point would be to treat the virtual frisk just like they treat a physical frisk — allowing it and forbidding it in the same circumstances. Using the scanner would be a search that is reasonable only if there are specific and articulable facts to believe that the suspect is armed and dangerous. That way, the new technology does not considerably alter the preexisting balance of government power and individual rights. The government’s counterargument presumably would be that scanning to detect a gun is less invasive than actually patting someone down to find a gun: Scanning is less obtrusive because it does not involve any physical invasion or retrieval. But Kyllo suggests that this sort of more or less intrusive analysis may not apply in the case of sense-enhancing devices. And given the fact that the scanning technology itself can change over time, it’s problematic to generate a constitutional rule that may only apply to the current version of the technology — assuming that it does for that.

The problem here is that, as is the case with many digital technologies, the individual scan may be less intrusive than a hands-on frisk; but that the low cost and simplicity of digital frisking may result in mass scanning, which would pose (we think) a Fourth Amendment issue separate from and much more serious than whether a single scan was constitutional. The courts may not be ready to grapple with it, but it’s coming, so the people better be ready.

Thanks to The Volokh Conspiracy and the New York Daily News for materials used in this post.

Security Theater on the T: Demonstration Condemns Random Bag Searches

On Saturday, a new civil rights group called “Defend the 4th” conducted a successful protest against the TSA. Despite the bitter cold, over 200 people turned out, marching from various points on the MBTA system and congregating on Boston Common. People attending included folks from Anonymous, Occupy Boston, the Pirate Party, the Republicans, the Ron Paul folks, the Socialists and a most righteous quantity of press organizations. Congratulations to organizers Garret Kirkland, Tamarleigh Grenfell, Frank Capone, Petey Bouras, Elvis Rodriguez and Joshua Chance Scafidi.

I was impressed to see that even in the depth of winter, 150 people in the Boston area were willing to turn out to defend the Fourth Amendment. That’s the equivalent of 1,500 in the summer.

Why were we so upset about the TSA’s activities on the MBTA? Since 2006, the TSA has been conducting “random” bag searches on the MBTA, where they scrape bags for explosives. They are “random” because federal law requires suspicionless searches to be random in order to pass legal muster, but the TSA can (and has) selected, say, Dudley Square T station (in a mostly-black neighborhood) rather than Symphony station (in the tony South End), as their base of operations, and then “randomly” chosen one out of five travelers. If a traveler doesn’t consent to a search, they have to go to another station (or sometimes simply a different entrance to the same station). Oh, and the TSA doesn’t work shifts on the MBTA at weekends.

The TSA must think that terrorists are the dumbest people on Earth. It requires only a minimal amount of intelligence for an explosives-carrying terrorist to decide that this policy makes Sunday the best possible day for a terrorist attack.

What does this remind me of? Oh yes…

asterix
From “Asterix in Britain”, 1966, by Goscinny & Uderzo

This is pure security theater. It’s designed to make the TSA look as if it’s doing something. Not coincidentally, it also extends the authority and reach of the TSA over our ordinary lives, and to justify expanded budgets. No evidence has ever been made public that any terrorist entity is targeting the MBTA. But even if there were such evidence, we have the right to travel freely around our country. The authorities, whether TSA or anyone else, must have probable cause before targeting any of us for a search. We’re not a country that does internal passports, random checkpoints, or asks citizens to show their papers without cause.

More specifically, the demonstrators’ constitutional concerns have at least some merit. In ten states (Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming), sobriety checkpoints and therefore also these kinds of random bag checks are explicitly unconstitutional. In Massachusetts, the state Constitution’s Article XIV suggests strongly that random bag searches would also be unconstitutional here:

Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right [cp. are unconstitutional], if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.

Got that? To be constitutional, a search “in suspected places” must “be accompanied with a special designation of the persons or objects of search”. Random bag checks don’t do this.

This should serve notice to the TSA. People are beginning to wake up to the TSA’s disrespect for long-established rights. There’s no evidence of a threat to the MBTA; there’s no evidence that random bag checks are effective; and the checks are of doubtful legality. Without some pushback, every agency will want a piece of the homeland security pie, till our every move in public becomes the object of surveillance by a newly and aggressively militarized police presence. We can afford a gentler and more civilized way of life.