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 notion that the President should be allowed to detain US citizens without trial and without limit in time of war is a horrifying idea, but not a new one. President Lincoln suspended the writ of habeas corpus during the Civil War. President Roosevelt interned Americans of Japanese descent during the Second World War. It had seemed by the early 1990s that we were recognizing that shameful past and leaving it behind. Then came 9/11.
In the aftermath of the attack, 1,200 Muslim Americans were detained on `material witness warrants’ and interrogated, often without any evidence beyond their religion. American citizen and civilian Jose Padilla was arrested in 2002, committed to a military brig for three and a half years, tortured and possibly driven insane, before being transferred to civilian court and sentenced to 17 years in prison in 2008, for conspiracy to conspire to commit terrorist acts abroad.
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.
It’s not usually our dealio here at Digital Fourth to weigh in on federal digital rights, because terrific organizations like EFF, Fight for the Future, Demand Progress and the ACLU generally do that heavy lifting for us. But so much has happened regarding prosecutions under the Computer Fraud and Abuse Act that it’s worth focusing on what this law is, why it’s in such a mess, and what can usefully be done about it.
When originally passed way back in 1986, the intent of the CFAA was to ban hacking. This kind of hacking:
Wait, Ally Sheedy was in this?
In other words, what they were concerned about was access to “Federal interest computers”, namely computers belonging to the government, or at certain designated utilities like nuclear power stations or financial institutions. Now, however, the law covers pretty much any computer held by anyone.
Have you ever wondered why your Mondays have become an unending bliss of delight, falling upon you like Zeus visiting Danae in a shower of gold? It must surely be because of Microscope Monday, your weekly look at notable surveillance-related bills on Beacon Hill.
This week’s bill, tying in with our new Campaign to Close the Fusion Centers, is “An Act to protect freedom of speech and association”, more conveniently referred to as the “Free Speech Act”. The bill updates last legislative session’s “Act to protect privacy and personal data”, covered in October 2012 on this blog here. It was proposed by Assistant Majority Leader Sen. Harriette Chandler (D-Worcester) and Rep. Jason Lewis (D-Winchester). Its basic purpose is to deal with the fallout from the Policing Dissent scandal, where the Boston Police Department, in concert with the Boston Regional Intelligence Center, was found to have been spying on peaceful groups like Veterans for Peace and defining them as “extremists.” Protesters, including one person I knew, were hauled in and interrogated about their associates, without any actual crime having been committed.
We’re glad to see some action being taken to deal with these problems. But, what does the bill actually say?
[Artwork adapted slightly from Leo Reynolds on Flickr]
After the 9/11 attacks, a traumatized nation considered whether the attacks could have been thwarted by coordinating intelligence-gathering better between the FBI and CIA. From that impulse grew the fusion centers, of which there are now at least 7277 86 across the country. Us lucky SOBs here in Massachusetts get two, the Boston Regional Intelligence Center at One Schroeder Plaza, Roxbury, MA 02120 and the Commonwealth Fusion Center at 124 Acton Street, Maynard, MA 01754. The idea was that they would be able to thwart terrorist attacks before they occur, by gathering representatives from different agencies, and in some cases the military and the private sector, together to report on “suspicious activity”. In practice, it has not worked.
Thing is, actual terrorists are relatively thin on the ground. A network of 7277 86 fusion centers might handle three genuine cases of terrorism between them in any given year. That’s not enough to enable each fusion center to show that it’s doing anything at all. What’s a good bureaucrat to do?
We heartily recommend that you read the whole thing, but here are the striking take-aways.
We are spending 6% more on incarceration than we are spending on education. Low-level drug offenders sentenced under mandatory minimum laws are driving a substantial portion of the costs. Offenders are routinely overclassified into higher and more expensive levels of security than they really need. And Massachusetts is not being strategic about its incarceration spending to make sure that it is getting the least reoffending for a given budget.
A very human desire to lock everybody up for ever takes no account of the costs, or of how doing that crowds out investment in other things we might like more of, like better education, lead abatement or public transportation, which also in turn have a positive effect on crime down the road.
I wonder if the Lege and the AG’s Office are listening? Or will they keep wasting our taxes on strategies that don’t work?
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:
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.
