Here in the heavily Democratic Fifth District of Massachusetts, we know that the winner of October 15th’s Democratic primary will reliably win the general and go to Congress. The seat was last open almost 40 years ago. Bearing that in mind, we at Digital Fourth thought it pretty important to assess the Democratic candidates’ positions on the hot issue of surveillance, while the district’s registered Democrats still have a chance to affect the outcome.
We sent a standard questionnaire to all seven candidates running in the primary. We asked about whether the candidate supported requiring warrants for searches of digital data (ECPA reform); whether they would defund the “fusion centers” that capture data and generate reports on peaceful activists; whether they support the Mass. Attorney-General and Senator Clark’s proposal to expand electronic wiretapping; whether they would vote for the Amash-Conyers Amendment reining in the NSA; and finally, whether they would support Rep. Rush Holt (D-PA)’s “Surveillance State Repeal Act”, which would repeal the PATRIOT Act and the FISA Amendments Act and provide protection for government whistleblowers.
All except Sen. Karen Spilka and Mr. Paul John Maisano were kind enough to respond in detail, and we have done our best to reconstruct the positions of these two candidates from past votes and public statements.
UPDATE: Sen. Spilka has provided answers to the questionnaire that place her in equal first place on surveillance, along with Rep. Carl Sciortino and Mr. Martin Long.
So, for your reading pleasure, here’s the Surveillance Voter’s Guide to The Democratic Field in MA-5!
Mass surveillance getting you down? Feel like the federal government doesn’t trust you, and wants access to everything you do, say, or even think? Then come on out with us in the nation’s biggest ever rally against mass spying, on Oct. 26 in Washington, DC!
We’re calling for Congress to:
Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;
Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance;
Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.
Without our pressure, the very best we can hope for is for the government to become marginally more transparent about how they are spying on our every moment. The Obama administration has not supported any changes to the NSA’s actual programs, and has done its best to block meaningful discussion of reform.
Maybe you’re content simply with knowing what abuses are being committed against you. We’re going to DC to send the message that the abuses themselves must end. The only kind of surveillance that the Fourth Amendment allows is also the only kind that really works: surveillance of individuals, based on probable cause of their involvement in an actual crime. Anything beyond that is a grave threat to our freedom to live our own lives as we wish.
Sign up to attend or volunteer here. And if you can’t make it to DC that day, here’s a link for other ways you can help.
UPDATE: Our new article on the rally gives much more detail.
The second Massachusetts Supreme Judicial Court case coming down the pike is Commonwealth vs. Marcus Mitchell. This deals with our favorite law here at Digital Fourth, Massachusetts’ electronic wiretapping statute, which forms part of the forbiddingly named Mass. General Laws Chapter 272: CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER.
Electronic wiretapping was never intended to become a routine day-to-day tool of the police; now, this case asks whether the police can use electronic wiretaps to prosecute offenses outside the wiretapping statute.
Massachusetts’ Supreme Judicial Court is soliciting amicus briefs from interested parties in two cases highly relevant to electronic privacy.
First up is Commonwealth vs. Shabazz Augustine, where they seek to establish:
“whether there is a warrant requirement for cell phone records collected and held by the phone company, namely historic cell site location information, sought by police to establish a person’s location at various times.”
The case is attracting heavyweight legal attention from the Electronic Frontier Foundation, who have already filed an amicus brief, assisted by local information activist, Harvard legal scholar and all-around side-of-the-angels guy Kit Walsh. It will most likely be argued on October 10.
The question underlying the case is whether we all have a reasonable expectation of privacy in our movements as recorded by a third party. In the context of Fourth Amendment jurisprudence, this depends on whether the person moving can be said to have abandoned all proprietary interest in the record of their movements that is held by their cell phone company. Supreme Court precedents from the 1980s indicate that people have no reasonable expectation of privacy in this kind of telephonic “metadata”, but those rulings look increasingly out of date in a technological context where cellphone metadata can reveal a great deal more about you than the metadata associated with a 1980s landline could. EFF’s amicus brief reports that the lower court ruled that cellphone subscribers cannot be said to have “voluntarily conveyed” their interest in data on their movements to a third party simply because that party holds the data, and asks the SJC to let that part of the lower court ruling stand.
As is the case with the Supreme Court, it is worrying that the Supreme Judicial Court has accepted the case for review. The best outcome for defenders of digital privacy would have been for it to allow the lower court ruling to stand, and their acceptance indicates a significant risk of its being overturned. We urge the Supreme Judicial Court to heed the arguments of EFF’s amicus brief, and to err, if they err, on the side of liberty.
In response to a groundswell of public horror at the intrusiveness and enormous scale of the surveillance state, President Obama appointed a blue-ribbon panel to consider changes – not to the programs themselves, God forbid, because Terror, but changes to how much we know about how much the government is spying on us.
Once again, as is so often the case, “Yes Minister” tells us what’s going on:
Sir Humphrey Appleby: … I am fully seized of your aims and of course I will do my utmost to see that they are put into practice. James Hacker: If you would. Sir Humphrey Appleby: And to that end, I recommend that we set up an interdepartmental committee with fairly broad terms of reference so that at the end of the day we’ll be in the position to think through the various implications and arrive at a decision based on long-term considerations rather than rush prematurely into precipitate and possibly ill-conceived action which might well have unforeseen repercussions. James Hacker: You mean no.
Fortunately, some members of Congress are wise enough to see through this charade. Among them is progressive Democrat and physicist Dr. Rush Holt (D-PA), who has filed the “Surveillance State Repeal Act“.
Unlike more mealy-mouthed efforts at “reform”, this one strikes at the guts of the problem: the PATRIOT Act and the FISA Amendments Act themselves. Simply put, without these Acts, the kind of mass surveillance conducted by the NSA would no longer have any figleaf of legality. The FISA Amendments Act’s main purpose was to legalize what the government had already been doing, and immunize from prosecution the companies who had colluded with the government’s illegal warrantless surveillance of Americans. Then-Senator Obama (this is always worth pointing out) voted for it. He has never sincerely opposed mass government surveillance, he doesn’t oppose it now, and he will do his best to secure an outcome where nothing about what the NSA is actually doing has to change. And I say this as someone who voted for him in 2012, based on our agreement on many non-surveillance-related issues.
So, please call your congressmember and ask them to cosponsor Rep. Holt’s excellent bill, which also provides better protections for government whistleblowers. And if you’re in DC toward the end of October, please sign up to come and protest for surveillance reform with the Stopwatching.us coalition.
One huge question for legislators and the public to understand is: how does pervasive US government surveillance damage the tech industry itself? The Boston area’s economy depends hugely on the health of the tech industry. The United States as a whole benefits enormously from the dominance of US tech firms like Apple, Microsoft, Dropbox, Adobe, Amazon and too many others to name.
Now that we have had a few months since the beginning of the Snowden revelations in June, analysts are beginning to come out with some answers. It seems that the economic impact could be enormous.
Cambridge resident David House got a nasty shock back in December 2010, when on his way back from vacation in Mexico he landed in Chicago, and found himself in a Homeland Security interrogation room. What was House’s crime? Being involved with the Bradley Manning Support Network. He was generally sympathetic to Wikileaks’ efforts to publicize the war crimes revealed by the Bradley Manning leaks. Or, as the “lookout” alert put it, he was “wanted for questioning re leak of classified material.”
With speeches, flyers, and some family friendly songs, a few dozen protesters joined outside the Boston Regional Intelligence Center (BRIC) yesterday to push back against what they said were increasingly invasive government intrusions into individuals’ privacy.
The event was dubbed an Orwell Day protest, after George Orwell’s 1984 (the date was 8/4), a novel about a totalitarian regime that maintains control largely through an aggressive surveillance program.
“I believe in the constitution, I believe in the Fourth Amendment,” said Alex Marthews, founder of Digital Fourth, a non-profit which advocates for strong Fourth Amendment protections and a strong emphasis on privacy. He blasted BRIC as an ineffective institution that wasted time and money investigating peace activists and graffiti artists rather than more serious threats.
“An agency that does no good and wastes your money should be closed,” he said.
Maximum attendance was around 75, which was much larger than the first event – looks like the movement is growing. Here’s full footage of the first hour, featuring great speeches from Steve Revilak of the Mass Pirates and Joan Livingston of Veterans for Peace. Many thanks to the activists from #MassOps and Restore the Fourth Boston who put the event together!
The city of Cambridge, MA is considering whether to switch on its network of surveillance cameras. Councillor Craig Kelley, who chairs the Public Safety Subcommittee [UPDATE: and whom, I should make clear, is skeptical about the merits of surveillance camera systems, scheduled seven public hearings on the newly proposed Security Camera Policy, but like most subcommittee hearings, they were relatively poorly attended]. The City Council voted unanimously on July 2 to ask the Mayor and the City Manager to arrange a better-publicized meeting to discuss the Policy.
ORDERED:
That Her Honor the Mayor and the City Manager be and hereby is requested to arrange a community meeting with other stakeholders to discuss the proposed Security Camera Policy submitted by the Police Department for implementation.
Long Island freelance writer Michele Catalano reported two days ago on a deeply disturbing incident where six officers from an undisclosed agency came to her family home:
At about 9:00 am, my husband […] saw three black SUVs in front of our house; two at the curb in front and one pulled up behind my husband’s Jeep in the driveway, as if to block him from leaving. Six gentlemen in casual clothes emerged from the vehicles and spread out as they walked toward the house, two toward the backyard on one side, two on the other side, two toward the front door. […] He could see they all had guns holstered in their waistbands. “Are you [name redacted]?” one asked while glancing at a clipboard. He affirmed that was indeed him, and was asked if they could come in. Sure, he said. They asked if they could search the house, though it turned out to be just a cursory search.
The “gentlemen” pepper her husband with questions about pepper cookers and backpacks; about where he’s from, about his wife, about their parents and their reading habits. They say that “they do this about 100 times a week. And that 99 of those visits turn out to be nothing.”
How reassuring.
It appears that Suffolk County CID had received a tip from “a Bay Shore based computer company” about the Google searches of a former employee, Ms. Catalano’s husband, who had searched while at work for terms including “pressure cooker bombs” and “backpacks” – the former because he was curious about how the Boston Marathon bombing had happened, and the latter because they were in the market for new backpacks.
It’s still unclear exactly what agency the “gentlemen” were from. The FBI and the Joint Terrorism Task Force are both denying involvement. Nor do we know exactly why such Google searches triggered a full-court press from no fewer than six officers. But there are two important points that arise out of this story.
One is how blunt the tools of Internet surveillance are. Your Google search for “pressure cooker bombs” tells the authorities only that you are interested in pressure cooker bombs at that moment. As part of my research for this article, I just put it into Google myself. It doesn’t tell them why, and by itself is not evidence of any criminal intent. Nor does separately searching on the word “backpacks” help to establish such an intent. If we were still operating in a world where the Fourth Amendment were consistently applied, this evidence alone would not be nearly enough to demonstrate probable cause to a judge that the person in question was engaged in or planning criminal activity. Instead, we’re operating in an environment of high governmental paranoia about people’s search activity, where agencies have to find ways of justifying an over-muscled and over-funded security state.
The second point is that we don’t know whether a warrant was issued, or whether the “gentlemen” felt that one was needed, because Ms. Catalano’s husband did not assert his Fourth Amendment rights (and may in fact have been afraid to do so). He could have refused them entry without a warrant; they may or may not have complied; but he had every right to refuse. It’s just not something many people think of doing, and in consequence law enforcement feels able to intrude on our homes at will. Like the “gentlemen” in Buffy, their success depends on our silence.
UPDATE: The author of this testimony has taken it down. Whether it was false, he had deeply misunderstood what was going on, or he was scared into withdrawing it, it can no longer be considered reliable.
