Digital Fourth (Restore The Fourth – Boston)
The Massachusetts campaign to protect digital data from warrantless government surveillance
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 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we figured, why don’t we take a look at what other comparable states do, and see if Massachusetts’ laws look comically outdated compared to them?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?
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
We’re used to the fact that data storage technologies, once so sensationally expensive, are becoming drastically cheaper. What we don’t yet clearly realize is what that will mean for our everyday lives. Within ten years, it will be reasonably cheap to track every moment of your life. The technology already exists. You could each have a hovering Eye over your right shoulder, keeping an archive of all of your conversations and experiences. If you have an argument with your spouse in 2020, and disagree about something he said, you could simply ask the Eye to track back to that conversation and prove you right. Or wrong.
I sense an impending rise in divorce.
Drones are, as of January 2012, legal in US airspace, and are publicly available for sale. They will only get smaller, more powerful and more ubiquitous.
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.
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.
Want to know the details of what the new Coakley bill, An Act Updating the Wire Interception Law, really includes? Wonderful. I can already tell we’re going to be friends.
Here’s an advance hint: What do marijuana possession, annoying telephone calls, burglary, neglecting to depart a public assembly on the orders of police, failing to display the correct posters relating to the illegality of firearms and explosives in your school, and the sale of arrowheads used for hunting, have in common?
If you guessed “It isn’t legal in Massachusetts right now to take out an electronic wiretapping warrant for offenses this minor, but it would be under this bill”, then congratulations, you win the Grand Prize.
On, to a more detailed discussion!
There are three main points of this legislation:
1) To remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally.
2) To legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.
3) To double the length of an authorized wiretap, from 15 to 30 days.
A long-standing frustration of law enforcement in Massachusetts has been that the electronic wiretapping statute was drafted in response to the problem of organized crime specifically, rather than being devised to cover a certain set of the most serious crimes. So, in order to take out an electronic wiretapping warrant, law enforcement has first had to demonstrate that there is an ongoing investigation connected to organized crime, of which the wiretap would be a part.
From Digital Fourth’s analysis of nine US states (CT, FL, NJ, NV, NY, PA, RI, VA, WA), it is not unusual for the list of offenses to only include offenses characteristic of organized crime; it is unusual to require a prior demonstration that the specific offense under investigation is connected to organized crime. However, neither the AG nor the bill’s sponsors have yet been able to point to any case where a criminal was not brought to justice because of the lack of connection of his crime to organized crime, suggesting that this limitation on police activity has little actual effect on convictions.
Going beyond this, the bill before us implements a much broader list of offenses for which electronic wiretapping with a warrant is legal than is currently the case. We’re no longer talking about arson, rape, murder and witness intimidation in connection with organized crime. We’re talking about a wide array of offenses, down to the very minor ones listed above. Coakley proposes expanding the designated offenses to cover every possible firearms and drug offense, down to simple marijuana possession, and also every kind of illegal threat, harassment and hazing, or conspiracy to commit such crimes. This could be read as a response not only to the Newtown massacre and associated calls for gun control, but also to the sad cases of cyberbullying that Massachusetts has seen in its schools.
The most worrying new element in this bill is the conscious inclusion of language allowing wiretaps to be placed at phone companies’ switching stations. Let me show you what I mean.
Old language:
1. The term “wire communication” means any transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception
New language:
1. The term “wire communication” means any transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of such communications and shall include: any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, but shall not include: (i) any communication made through a tone-only paging device; (ii) any communication from a tracking device, defined as an electronic or mechanical device which permits the tracking of the movement of a person or object; or (iii) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.
Surveillance activists are well aware that one of the biggest surveillance-related cases of recent years has involved the activities uncovered by whistleblower Mark Klein, where the NSA installed an electronic intercept for all phone traffic at an AT&T switching station in San Francisco (Jewel v. NSA). The conscious inclusion of such language by Coakley here suggests that law enforcement in Massachusetts would like to be able to start doing such things under color of law. A ruling is still pending on this case, but it is hard to square such activities with the Fourth Amendment’s requirement that:
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This “particularity” requirement is a settled part of Fourth Amendment law, and there is no question that in trying to legalize this practice, Coakley is opening the AG’s office to being sued on constitutional grounds, which could cost the Commonwealth a bundle.
The provision to double the length of an authorized wiretap is unsurprising, and is pretty much a matter of convenience for law enforcement. Here at Digital Fourth, we have obtained through public records requests a complete list of the electronic wiretaps taken out in Massachusetts by the AG’s office and DAs’ offices during 2011 (information on 2012 is being collected). Of the total of 16 warrants issued, 9 had to be renewed, though none appear to have had to have been renewed twice. Presumably this fact is motivating the proposal to extend the date. However, neither the AG’s office nor the DAs’ offices report any denials of renewal applications. This implies that a renewal takes effort on the part of the prosecutor, but that there is no plausible doubt that an application to renew, once received, will be denied. Therefore, we are once again out of the zone of “reducing the ability of prosecutors to get convictions” and back into the zone of “increasing administrative convenience for prosecutors”.
Thankfully, relative to prior years, the AG appears so far to have dropped her previous suggestion to expand the list of “designated offenses” to an array of financial crimes, down to kiting checks and violating codes of ethics. For the moment, there’s also no sign of her previous unconstitutional proposal to substitute after-the-fact “certificates” for proper warrants signed before the fact by a judge. However, the bill still has serious defects as presented.
Here at Digital Fourth, we believe that if electronic wiretapping warrants are to be legal, they should be restricted to very serious crimes. While philosophically the organized crime requirement seems outdated, in practice it doesn’t seem to affect convictions. What it does do is to impose a high bar on launching an electronic wiretapping investigation, and that high bar is useful in itself. We feel that it would be a waste of police resources to mount electronic wiretaps of peaceful activists, conduct mass surveillance of traffic at phone switching stations, or turn every insulting comment on a schoolkid’s Facebook page into a criminal matter, all of which this bill would allow. Any surveillance that moves away from a particularized target towards generalized suspicion, or that chills people’s freedom of speech, is constitutionally suspect. The AG should accept, just as the federal government should accept, that there are activities that they and we may not like, that cannot realistically be suppressed by the government without violating the Constitution. Legislators thinking of cosponsoring this legislation should likewise be aware of the major problems it presents.
Welcome to the Campaign for Digital Fourth Amendment Rights.
My name is Alex Marthews. I started this Campaign in June 2012, after becoming a naturalized US citizen.
At the beginning of the century, I was an intern with the Electronic Frontier Foundation, and did extensive work on online civil liberties, devising UC Berkeley’s first course on Cyberlaw and writing my thesis on blocking and filtering systems. Since that time, I have grown increasingly worried as governments around the world have taken advantage of the Internet to track ordinary people’s activities ever more closely and systematically. Most notably, the US government has decided that when it comes to our digital data, the Fourth Amendment is dead, and that they can intercept and read all US communications without a warrant and without regard for the law.
The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This is one of our nation’s highest laws. It exists for a reason. In colonial times, the British government would issue “general warrants” allowing colonial officers to ransack people’s homes without probable cause, and then to arrest people on the strength of what they found. These “general warrants” have now made a comeback on a scale unimaginable to the oppressive administration of George III. We are all now presumed guilty until we have proven ourselves innocent.
The normal institutions that should have stopped this from happening are failing. The Republican party supported warrantless wiretapping under Bush, and now cannot easily oppose the same practices under Obama. The Democrats opposed it under Bush, and, with a few honorable exceptions, have failed to oppose it under Obama. The courts have by and large refused to hear lawsuits seeking to stop it, because you don’t have standing to bring a lawsuit unless you can prove that you have been spied upon, but the only people who can tell you that you are being spied upon are the people doing the spying. After the Second Circuit in Amnesty International v. Clapper unexpectedly ruled that plaintiffs did nevertheless have standing, the Supreme Court hurriedly approved the government’s petition to have the case heard in the fall, which ominously suggests that they may have agreed to hear it only in order to finally close off the courts as a venue for redress.
We must therefore ask ourselves as citizens and as defenders of freedom, what we can do to preserve the ability to communicate freely and openly, if neither the political system nor the courts provides an adequate check to a government run amok. As a first step, I will be using my extensive experience running nonprofits to set up the Campaign as a 501(c)(4) nonprofit corporation, recruiting volunteers and supporters, and working out how to strengthen the Fourth Amendment in New England. If you would like to help, please contact me at (alex) at (warrantless.org).