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.
No kidding.
Wittes argues,
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!
There’s a great new police-community relations bill up in Rhode Island. Randall Rose of the Rhode Island Coalition to Defend Human and Civil Rights (CDHCR) has the goods:
Image courtesy of Salon.com.
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:
I promised a longer and brighter view of where a world of mass surveillance is headed.
Surveillance means power, but it also means accountability. The deep state is trying to impose perfect accountability on others, and to preserve perfect unaccountability for itself. That can’t last. Employees of the deep state cannot be expected to have its back, when the deep state doesn’t have their back. The war on whistleblowers, and now the frantic ban by James Clapper on any deep state employees talking to the media without prior permission from their superiors, smack of panic, of a white-knuckle approach to the politics of information. The deep state knows that they can win individual battles, such as by imprisoning John Kiriakou or Chelsea Manning; with respect to their employees, their position appears to be that the beatings will continue until morale improves. They want to intimidate unauthorized leakers, and need a constant stream of Espionage Act prosecutions to do it with. However, they cannot, in the end, win this war.
The Atlantic picks up on a story from the Center for Investigative Reporting that in 2012, the LA County Sheriff’s Department secretly tested a civilian surveillance aircraft by flying it over a town in their jurisdiction and taking high-resolution footage of everything visibly happening there, over a period of up to six hours (highlights are ours):
If it’s adopted, Americans can be policed like Iraqis and Afghanis under occupation – and at bargain prices:
McNutt, who holds a doctorate in rapid product development, helped build wide-area surveillance to hunt down bombing suspects in Iraq and Afghanistan. He decided that clusters of high-powered surveillance cameras attached to the belly of small civilian aircraft could be a game-changer in U.S. law enforcement.
“Our whole system costs less than the price of a single police helicopter and costs less for an hour to operate than a police helicopter,” McNutt said. “But at the same time, it watches 10,000 times the area that a police helicopter could watch.”
A sergeant in the L.A. County Sheriff’s office compared the technology to Big Brother, which didn’t stop him from deploying it over a string of necklace snatchings.
The town they chose? Compton. Yes, that Compton, but it’s not the same Compton as yesteryear. Its boosters are now touting it as the hip, countercultural Brooklyn of the LA area. It has an inspirational new Millennial mayor, Aja Brown, who has garnered comparisons to Cory Booker. Its crime rate is down sixty percent, and it’s now majority-Latino. But it still has a median household income of $42,335, and still, even after all its struggles, somehow found itself the first city selected for mass surveillance, over, say, majority-white, tony Santa Clarita (median household income $91,450). Well, blow me down with a post-racial colorblind goddamn feather.
In related news, the NSA, under its MYSTIC and RETRO programs, was revealed last month to have been collecting the contents of the phone communications of an entire country (unnamed, but probably Iraq).
Believe it or not, this is the program’s actual logo.
These two stories are essentially the same. Developments in technology allow law enforcement surveillance to sweep past legal constraints intended for an era where collecting, storing and analyzing so much data was inconceivable. In luckless Compton, the Supreme Court’s 1989 decision in Florida v. Riley renders “wide area surveillance” presumptively constitutional. In luckless Iraq, the expansive powers of Executive Order 12333 and the FISA Amendments Act impose effectively no constraints on the NSA in intercepting the communications of foreign nations.
May I draw your attention to three salient points?
[Guest post from Nancy Murray, an advocate for Palestinian rights for over 25 years. Crossposted at Mondoweiss. Nancy has researched and written about surveillance extensively for the ACLU of Massachusetts and its privacysos.org website. While this is not a blog that covers the Israeli-Palestinian conflict, it is shocking that the NSA, as a matter of policy, shares unconstitutionally collected and unminimized intelligence on US persons with agents of any foreign government.]
If the Israeli government has indeed ordered its spies “to dig up intelligence” showing links between the supporters of BDS and “terrorists and enemy states” as reported in the February 11, 2014 London Times, it may find that it already has as much information as it needs in its data banks.
As described in the UK Guardian by Glenn Greenwald, Laura Poitras and Ewen MacAskill, a 2008 document obtained by whistleblower Edward Snowden states that “one of the NSA’s biggest threats is actually from friendly intelligence services, like Israel. There are parameters on what NSA shares with them, but the exchange is so robust, we sometimes share more than we intended.”
Thursday, April 10, 2014 was a National Day of Action against Fusion Centers. Diverse, multiracial grassroots coalitions from around the country held rallies, press conferences, and creative actions to challenges civil liberties by fusion centers, which coordinate the surveillance activities of local police alongside federal agencies like the NSA and FBI. Fusion centers have operated at unknown cost, failed to meaningfully serve a public benefit, and drawn critics including Senators across the partisan spectrum, the ACLU, environmentalists, Muslim Americans, peace activists, and Ron Paul supporters.
Participating cities in yesterday’s action included: Boston, Charlotte, Dallas, Los Angeles, Oakland, San Francisco, and Washington DC. Below the jump are quotes from organizers, as well as photos and videos from several of the sites.
Noble defenders of the Constitution in Boston included Joan Livingston, Kinetic Theorist, Chris Faraone, and some British guy.
On a windy Thursday afternoon, we gathered to protest the privacy abuses of the Boston Regional Intelligence Center. It’s one of 85 fusion centers across the country, and we were joined nationally by groups in LA, Oakland, Dallas, Charlotte and DC. Cambridge City Councillor Nadeem Mazen gave a fiery speech describing the waste of resources the fusion center represents; journalist Chris Faraone described an operation of the fusion center where they digitally classified graffiti tags and enabled the arrest of graffiti artists (way to go, strike a blow for freedom!).
We presented a FOIA request to the Boston Fusion Center, but neither the Privacy Officer nor any BRIC representative would descend to communicate with us mortals. It appears that they were far too busy with vitally important meetings all day trying to prevent the next terrorist attack on the Boston Marathon, to meet with members of the public concerned about privacy.
