MA House Gets Vapors At Idea Of Actually Decertifying Officers, Banning Tear Gas

Here is this morning’s update on the current status of police “reform” in the House. For the topics the House has not yet considered, it’s not too late to call your House Rep and make your opinion known. All texts of amendments may be found at https://malegislature.gov/Bills/191/H4860/Amendments/House.

Key successes so far:
– #116, which we supported, passed narrowly. It placed further restrictions on no-knock warrants to protect children and elders. Yes, this means that almost half of our 80% Democratic House, thinks that on suspicion that illegal drugs exist in a home, the police should not have to check whether there are kids and elderly people inside before a SWAT team busts in, throws flash-bang grenades, and opens fire.
– #148, which we supported, passed. It strengthened penalties for police rape of people in custody, so at least there’s a consensus that that is wrong, I guess. Looking forward to seeing how many indictments are actually brought!

Key failures so far:
– #51, #54, #79, #107, #110, #129, #132 and #177, all of which we opposed, were some of the amendments which were folded into “Consolidated Amendment A” (https://malegislature.gov/Bills/GetAmendmentContent/191/H4860/A/House/Preview).* Consolidated Amendment A weakens the procedures of the Commission relative to the underlying House Amendment H4860 (the House bill). The Consolidated Amendment generally limits the ability of the Commission to investigate complaints until the police department has ruled on them, narrows the grounds for decertification, extends the appeal process for decertification, and gives the Commission greater discretion to not decertify. This basically means that the most important lesson Bob DeLeo is taking from the fury on the streets, is that it’s very important that any new Commission not be obliged to decertify officers who are shown to practice racist policing, to use excessive force, or to fail to intervene when they see other officers doing it.

– #77, which we supported, failed, as part of the process leading to the approval of Consolidated Amendment A. It was an effort to restore a “preponderance of the evidence” standard for decertification; the standard in the bill remains at “clear and convincing evidence.” There are further efforts, apparently, to increase the standard to “beyond a reasonable doubt.”
– #111, which we opposed, passed. It narrowed information not allowed for schools to share with law enforcement.
– #187, which we opposed, passed. It replaced the state auditor as a member of the new Police Commission with the president of the DAs’ association, as part of “Consolidated Amendment B”, which covered who should and should not be a member of various Commissions set up by the bill (https://malegislature.gov/Bills/GetAmendmentContent/191/H4860/B/House/Preview).
– #200, which we supported, failed. It would have banned tear gas and other chemical weapons. Apparently, it’s just a step too far to ban substances whose use in war is prohibited by the Geneva Conventions, from being used against people protesting police brutality.

Key amendments we support that have not yet been considered:
– #80: Establishes that database of police misconduct records should be publicly available and searchable
– #85: Public notice for Commission meetings, not simply by request
– #100: (also supported by ACLU and Progressive Mass): Creates direct right to sue for police abuse, not just via the AG’s office
– #131: (also supported by ACLU and Progressive Mass): Restores Senate language on local control of military equipment acquisition
– #201: Appears to bar 287(g) agreements of police or sheriffs’ departments with ICE in their current form

Key amendments we oppose that have not yet been considered:
– #33 would make the chokehold ban more limited, as would #114
– #91 is a mischievous and silly amendment that would strip legislators’ qualified immunity from civil suit as revenge for stripping police officers of theirs.
– #149, also opposed by ACLU, would remove warrant/imminent harm requirement for law enforcement access to RMV records
– #172, #173, #193, #197 and #204 would all replace the bill’s repellently weak reform of qualified immunity with an even weaker study committee to consider the issue.
– #215, among other things, would limit decertification for bias to intentional bias.

* It appears that if an amendment is folded into a “Consolidated Amendment”, it may be that its exact language need not appear in the Consolidated Amendment; it’s more like the amendment’s author agrees to implicitly withdraw the amendment if the language in the Consolidated Amendment passes.

Boston Just Banned Face Surveillance. What Now?

The Boston City Council voted unanimously on June 24 to ban government use of face surveillance technologies. Face surveillance systems are systematically worse at recognizing women and people of color, partly because the training datasets they learn with contain a preponderance of white, middle-aged men. Nothing about our criminal justice system requires the adoption of a technology that biases arrests and charging decisions more against Black people.

But if the technology ever somehow overcomes that, and becomes one hundred percent accurate, it becomes immensely more terrifying. In many cities already across the world, the police track wherever you go in public, and the authorities can easily form a picture of your habits and activities, to keep in their pockets for whenever you’re accused of a crime – or for whenever you grow inconvenient to them in other ways. Now, thanks to years of work by the #BosCops and #PressPause coalitions, which we’ve been a part of from the start, Boston will not be one of those cities. This matters.

Now we turn to what’s next. Face surveillance is a unique kind of threat, but the police should not deploy any surveillance technology without public hearings, and without the knowledge and approval of local elected officials. Those officials should have the power to approve or deny the use of such technologies. The surveillance state needs a little more sand in its gears, to stop the continuous ratchet of more and more invasive technologies. Next month – probably – the City Council will consider a surveillance ordinance that would do all that. Similar ordinances are already on the books in Cambridge, Somerville, Brookline, Lawrence, Northampton, and (as of July 1) Easthampton too, and many other municipalities across the nation.

But the face surveillance ordinance itself still, like any ordinance, has loopholes and limitations. We’ve written to the Boston City Council to lay out some of those problems:

  • So there won’t be a public network of City-owned cameras; what happens if there’s a private network, and the City simply requests that footage?
  • The City has the authority to regulate whether and how private businesses deploy face surveillance in the City. To address this, the city-wide ban on face surveillance should be amended to include language on how sports stadiums like Fenway Park, the TD Garden and retail stores like Home Depot, Macy’s, Best Buy and Kohl’s will be permitted to use face surveillance software, and require them to disclose use of it to the public.
  • And we still don’t know whether MBTA uses facial recognition; City agencies, including the police, should need a warrant for their footage.

Here’s our testimony on these points. And if you’d like to help with our continuing municipal campaigns to rein in surveillance in Massachusetts, email us today!

https://warrantless.org/wp-content/uploads/2020/07/Digital-Fourth-response-to-Facial-Recognition-ban-070720.pdf

You Know What? Be The 0.001%.

By standing up for surveillance reform and privacy now, you can achieve wonders.

You only need a few people who really care to start making a real difference.

There are a lot of people who think that we can do nothing to prevent the US from turning into a Chinese-style surveillance dystopia. There are even more who feel daunted by the power and influence of the surveillance agencies and major tech companies, like there’s nothing they can do.

This couldn’t be further from the truth.

We’re a small, if growing, movement. At any one time in the Boston area, there are probably only two hundred people taking meaningful actions to limit the free hand of police, FBI, DHS and NSA to stop, search and surveil us. If we’re talking people who make it their full-time job, then within the whole Boston area, we’re probably talking fewer than five people.

But despite these small numbers, our cause is both popular and just. Wherever we advance our proposed ordinances and by-laws, people like them by huge majorities. Cambridge and Somerville both now have surveillance oversight ordinances and bans on law enforcement use of facial recognition. Brookline, Arlington and many other places are working on similar measures. We’re already at 200,000 people just in Greater Boston who are protected in some measure from the surveillance state.

Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.

Margaret Mead

Truth is, you don’t need a majority. You need a few committed people, as few as one in ten thousand people, to start having an effect.

Extinction Rebellion began with just one courageous 15-year-old. Imagine what our small band could do with one more pair of hands…yours. Sign up here and let’s do great things together!

Cambridge moving forward with ban on police use of facial recognition software

Last night (July 30, 2019), the Mayor and City Council of Cambridge, MA voted unanimously to move forward for committee discussion a ban on law enforcement use of facial recognition software. Mayor McGovern proposed the measure, seconded by Councillors Kelley and Siddiqui. Speakers in favor of it included Kade Crockford of the ACLU of Massachusetts, Ilan Levy and Chris Lucy. The next stages of the process will be consideration by the Public Safety Committee at a public hearing; a recommendation from the Committee to the Council; and finally, a hearing and a Council vote on adoption.

This proposal comes after the City of Somerville, MA, next to Cambridge, became only the second city in the nation to pass such a ban.

Cambridge’s draft text is less thoroughgoing than Somerville’s, and tries to leave some space for the Cambridge police still to use “inadvertent[ly] or unintentional[ly]” recei[ved]” images identified using facial recognition software, provided they did not “request or solicit the receipt, access of, or use of such information” (see the proposed text for full details here).

We’d rather see their use of such information barred entirely, because this language gives the Cambridge police a strong incentive to argue that any image they receive and use was in fact received inadvertently or unintentionally. We would also support a change that would prohibit city agencies from giving videos with faces (other than those intended for publication) to any entity that might do face recognition on them, except under a specific court order.

We can see in the aftermath of the city of Berkeley, CA’s adoption of a surveillance oversight ordinance that City employees can sometimes work hard to subvert even the clearly expressed intent of elected officials in this area. We should take care to ensure that it’s clearly understood within Cambridge that such efforts to regulate surveillance are not only law, but also need to be followed in practice.

Meanwhile, Cambridge’s surveillance oversight ordinance, passed in December 2018, will come into effect September 10, and that should trigger the Cambridge police referring each of their current deployments of surveillance technology to the City Council for a public hearing and approval of plans governing their use. Our Cambridge volunteers will be monitoring the process to make sure that the ball doesn’t get dropped.

Other Massachusetts cities and towns where activists are moving forward with campaigns for surveillance oversight or to ban facial recognition software include Boston, Brookline, Northampton and Worcester.

To help move forward Digital Fourth’s work locally, click here!

To join our listserv discussing this and other local initiatives to protect privacy and roll back the surveillance state, click here!

Welcome to 2019

Our first volunteer meeting of 2019 is at the Summer Shack restaurant near Alewife T, at 5pm on Sunday January 27th. To RSVP, please email here.

After successfully passing a surveillance oversight ordinance in Cambridge, Mass., we plan to spread these ordinances to other cities and towns. To sign up to help pass one in your city or town, please email here. To get involved in our current municipal surveillance ordinance campaigns, please click here: Arlington * Boston * Brookline * Somerville.

One emphasis for Digital Fourth this year is roadway surveillance in the Commonwealth. We’re particularly concerned that plans for road pricing and autonomous vehicles may render travel on Massachusetts roads impossible without continuously letting the government know where you and your vehicle are. If this worries you, get involved here.

Go here to find out how our Massachusetts congressional delegation stacks up on surveillance issues.

And may the Fourth be with you.

Turn Out & Testify On Surveillance, 2pm Apr 17 Cambridge City Hall!

Please mark your calendars to come out and testify in support of community control over police surveillance!

WHAT: Public Safety Committee Hearing on Surveillance Technology Ordinance
WHERE: Cambridge City Council, Cambridge City Hall
WHEN: April 17, 2pm

If you can come, please email us at: digitalfourth@protonmail.com.

We’ll post some suggested talking points as we get closer to the date of the hearing, and a link to the City’s draft ordinance text if available.

We’ve been organizing in Cambridge for nearly two years, towards the goal of passing a surveillance oversight ordinance. We’re partnering with the ACLU of Massachusetts. We are following in the footsteps of communities like Santa Clara County, Berkeley and Davis in California, which have ordinances on the books requiring city agencies—including the police—to go through a transparent, public process before acquiring new surveillance technologies. Crucially, these ordinances require the city council to approve or deny requests, as well as to approve or deny policies to govern the use of any approved technologies. The ordinances also require that city agencies report back to the council (and the public) about how they use any approved technologies, and have meaningful enforcement provisions.

Surveillance often targets the most oppressed people: people of color, immigrants, and Muslims. It often targets activists, or anyone who disagrees with the status quo. Unrestricted, secret surveillance is a racial justice issue, a social justice issue, and a Fourth Amendment issue.

Let’s make sure Massachusetts communities chart a different path from the dangerous one our nation is heading down. Our work in Cambridge is one of five active campaigns in the Boston area (Arlington, Boston, Brookline, Cambridge and Somerville); get in touch to get involved!

Looking forward to seeing you on April 17 to send a strong message to the Committee: Cambridge supports community control over police surveillance!

Welcome

Welcome to Digital Fourth, Massachusetts’ all-volunteer campaign against unwarranted mass government surveillance.

To subscribe to updates on our listserv, click here.
To get involved in our current campaigns, on police militarization, body-worn camera policies, civil asset forfeitures, or surveillance ordinances, click here.
We usually meet weekly, Wednesdays 11:30am at Tatte Cafe, 101 Main St., Cambridge, MA (near Kendall/MIT on the Red Line), though not in April 2018. For these and our roughly monthly evening meetings, check the calendar to the right. For our national coalition, click here.

Section 702 Reform: Actions For Thanksgiving Week

Congress is debating whether to renew the law that allows the FBI and other agencies to conduct warrantless searches on Americans’ communications, Title VII of the FISA Amendments Act of 2008. Too much of the approach so far by most legislators has been to try to find the sweet spot of being able to say to the public that they have passed a “reform”, without actually offending the intelligence community by meaningfully limiting the surveillance that is being done.

This week, the ask is as follows, and works for Representatives and for Senators. The fuller explanation is in “Legislative Analysis” below.

– Cosponsor the USA RIGHTS Act
– Oppose the FISA Amendments Reauthorization Act
– Oppose the inclusion of any 702 reauthorization provisions in an end-of-year omnibus spending bill

For the USA Liberty Act, the main action is in the Senate. When you call your Senators, please ask them to:

  • Senators should cosponsor the Senate USA Liberty Act; and
  • Make sure that the language on FBI backdoor searches continues to reflect the Senate bill as introduced, rather than adopting the House language; and
  • Support any amendments that restrict use of 702 information to topics generally covered by the known certificates for it: terrorists, spies, proliferation, nation-state hacking, and other critical infrastructure issues, as the House USA Liberty Act does; and
  • Support any amendments that restrict unmasking in the manner that the House USA Liberty Act does; and
  • Encourage the adoption into the Senate USA Liberty Act of other elements of the excellent USA RIGHTS Act.

Scroll down for detailed legislative analysis and commentary.


Legislative Analysis

Section 702, the most controversial part of Title VII of the FISA Amendments Act (“FAA”) of 2008, is due to sunset December 31, 2017. Unless Congress acts in some way, this legislative authority for the NSA’s mass surveillance programs, including PRISM and UPSTREAM, will expire.

Digital Fourth’s primary position on this is: Good. FAA was a cowardly, retroactive Congressional capitulation to a Bush administration which had been caught conducting unconstitutional and illegal mass surveillance. By rights, the people responsible for authorizing it ought to have been jailed, and the databases arising from it should have been destroyed. Meaningful personal penalties for those involved in these abuses, like with torture, could have made it less likely to happen again. Since Title VII of FAA last came up for reauthorization at the end of 2012, the Snowden revelations have uncovered arrays of new information about how badly the intelligence community is abusing its powers, and how much they have lied to Congress and the public about what they have been doing in the name of “safety.”

However, we recognize that the Trump administration and about one-third of Congress would nevertheless like to see these powers renewed permanently and without reforms, out of desperation to portray themselves as tough on terror. Despite our best efforts, there are nothing near the numbers there should be in Congress willing to see these powers sunset altogether.

The best legislative fix available to Congress, the USA RIGHTS Act, was introduced by Sen. Rand Paul (R-KY) and Sen. Ron Wyden (D-OR) in the Senate, and Rep. Zoe Lofgren (D-CA) and Rep. Ted Poe (R-TX) in the House. It is the only thorough effort to fix the problems with Section 702 warrantless surveillance of Americans. The USA RIGHTS Act would not allow the FBI, or any other government agency, to query the database using search terms relating to a US person, without a warrant. It would protect whistleblowers, end “about” searches, allow more lawsuits to be brought challenging NSA surveillance, give the Privacy and Civil Liberties Oversight Board subpoena power, and shorten the next sunset period to four years. Given that the intelligence agencies and FBI have lied to the courts, to Congress and to us about what they’ve been up to, and given the Trump administration’s penchant for political persecution, USA RIGHTS looks to us, if anything, like a generous accommodation to the overmighty intelligence agencies.

What both House and Senate leadership would probably mostly prefer is an outcome where the Senate Intelligence Committee’s “FISA Amendments Reauthorization Act” (“FARA”) either passes as stand-alone legislation or gets folded into an omnibus spending bill, enabling Congressmembers to get home for Christmas and not come back till the New Year. The problem with this is that FARA is really, really awful. It provides a straightforward roadmap for the NSA to restart “about” collection. It offers an eight-year sunset date for these powers, versus four in the USA RIGHTS Act. The Attorney-General (Jeff Sessions, remember) is given unreviewable authority to allow searches of the NSA database for serious crimes and vaguely defined cybersecurity purposes. This is essentially a bid by a captured oversight body, the Senate Intelligence Committee, and its chairman Richard Burr, to give the intelligence community exactly what it wants; its improvements to reporting requirements by the Attorney-General and the FISC are there purely to be able to claim that “reform” has been accomplished.
Despite – or, more likely, because of – the awfulness of FARA, the prospect of its being folded into an omnibus, must-pass spending bill is a serious one.

Before Sens. Leahy and Lee introduced the Senate USA Liberty Act, it was not clear how it could realistically be avoided. Now, their stronger language on the warrant requirement gives us, as a Fourth Amendment nonprofit, something to fight for that has some chance of passage. We’re therefore encouraging both the USA RIGHTS Act as the best legislative vehicle, and a modified version of the Senate USA Liberty Act as the next-best legislative vehicle. The Senate USA Liberty Act should be modified because (a) it does not protect Tor users, numbering nearly half a million in the US on any given day; because (b) it does not limit the uses of 702 information to the previously established “certificates” for its use; and because (c) it does not require transparency into “unmaskings” ordered by the White House.

Commentary: A Note on Good Faith

Commentators frequently bemoan the decline in America over the last few decades in trust in institutions and in one another. As an organization drawing support from people on the right, on the left, and many places in between, we serve as a rare space where Americans can still work together towards common goals, even when coming from very different positions on political and social issues. We deeply value and cultivate that sense of trust in one another. It’s genuinely important to believe that the vast majority of our fellow Americans come by the beliefs they have no less honestly than we come by our own, and that they honestly believe that their views, if implemented, would make the country a better place. Without that bedrock of mutual trust, we would be able to achieve nothing.

Trust in institutions, however, is a very different and much more difficult thing. In truth, the last fifteen years have given Americans plenty of good reason to distrust their institutions. Our political elites manipulated people’s grief and anger over September 11th to bring us into a highly profitable state of unending war. They crashed the economy, left the people who crashed it unpunished, and made the rest of us pay for their ineptitude. It often seems the case that the two major parties agree with one another most easily when there is a project afoot that will really screw the public. And sadly, the governmental institutions with the highest remaining general levels of trust – the military and the police – also don’t really deserve it. It has now been three generations since the military went to war to “protect our freedoms”; their deployments typically aim at shoring up an empire the world doesn’t particularly want, and from which the Founders would back away in horror. The police shoot too many innocent, disproportionately black Americans, routinely violate people’s rights, and almost never face accountability for doing so. The trust that has been squandered will not return by itself, and will certainly not return while elites flaunt their self-exemption from the increasingly harsh state surveillance and punishments the rest of us are subject to.

When it comes to the laws constraining surveillance by the US government’s many intelligence agencies, the problem of trust becomes especially acute. Intelligence professionals cannot reveal absolutely everything about what they do in real time; some secrecy is inherent to espionage. However, giving them a free hand in what they do leads to growing constraints on our ability to think, speak, move and associate without being monitored by the state’s ever-more-intrusive eyes. We are asked constantly to trust that whatever they are doing is in our interests, and will thwart terrorism; but our only safeguards that this is true are the asseverations of most of the few members of Congress “read into” these programs. We have a right to know what kinds of surveillance are being conducted in our name, but Congressional leaders haven’t exactly been forthcoming about it. In practice, we only have the tools now to evaluate these programs because of what Snowden and his fellow whistleblowers did. We are all, like worshipers in the early days of Protestantism, becoming suddenly much more literate in the ways the government exercises power over us, but we are hardly given a real choice over whether they do surveil us or not. So, the previous situation of blind trust in Congress to keep watch over the spies will no longer do. In reality, Congress seems to mostly have very little grasp of what’s happening, or if Congressmembers do understand it, they keep that knowledge to themselves, out of a sense that actually doing something about it only has political downsides for them.

We must therefore argue against making policy on the basis of an assumption, conscious or unconscious, that either Congress or the intelligence community are operating in good faith. In the legal and regulatory spheres, as opposed to the political, always presuming good faith cripples effectiveness; if we could always presume good faith, no law or regulation would even be needed. The legislators who created Section 702 may possibly have believed that the spies would be constrained by it, to not continue spying on Americans; now, in 2017, that belief is no longer reasonable, if it ever was. We now know the spies wordsmithed their way around 702 and created the mass surveillance programs they wanted anyway, including PRISM and UPSTREAM. Now, we must tackle the challenge of instituting reforms when the agencies being reformed are both highly influential in the process and really, really not working in good faith. The fact that legislation continues to be proposed and supported by leadership that presumes good faith on the part of the intelligence community, suggests a Congress so captured that it cannot be said to be really in charge of the intelligence community at all.

Call Your Rep: MA House Republicans Try To Pass Wiretap Expansion The Senate Rejected

As we suspected, there’s yet another attempt to expand the wiretap law. Even though the Senate, when they passed the criminal justice reform bill, voted 14-22 against expanding the wiretap law, that isn’t stopping law enforcement trying again via the House version. Minority Leader Rep. Bradley Jones has introduced three amendments expanding the wiretap law to the House version of the criminal justice reform bill (H. 4011) which is being debated today, tomorrow and Wednesday. These amendments are #53, #115 and #174. Please call your Rep before Nov. 15 and let them know that they should vote against all three of these amendments.

Since Digital Fourth began in 2012, we have advocated that warrant-authorized wiretaps should be treated as an extraordinary, not an ordinary, instrument for law enforcement; that they should be reserved only for the most serious of crimes; and they should not, as these amendments do, be expanded to cover a vast array of ordinary criminal investigations. Amendments #53 is especially pernicious, in mandating technical assistance by tech firms to break their encryption to assist law enforcement; #53 and #174 both also expand wiretaps to cover interceptions enabled by “pen register” orders; this could greatly expand ordinary people’s vulnerability to surveillance just by communicating with someone whose communications are considered relevant to a crime.

Amendment #53 expands the wiretap provisions to cover electronic methods of surveillance in addition to recording phone calls or wearing a physical wire. Wiretaps may be conducted of people not located in Massachusetts. The definition of what is a “wire communication” is greatly expanded to cover the whole panoply of modern communications, excepting tone-only pagers, GPS trackers, and electronic funds transfer information. The definition of an “interception” is expanded to cover the kinds of interception enabled by a “pen register” order, for which a showing of reasonable suspicion or probable cause is not required, and which covers the interception of location and header metadata. The definition of “contents” is clarified. The “designated offenses” for which you can conduct a wiretap are greatly expanded. Police body-worn cameras are excluded from needing a wiretap warrant. The default length of a wiretap warrant authorization is lengthened from 30 to 40 days. Some useful precision is added to how a warrant should be issued, requiring that it identifies the issuing agency, that the warrant be executed as soon as is practicable. that it must minimize incidentally collected information, and that it must end at the end of the investigation. Warrant renewals are extended from 15 to 30 days; the maximum time a warrant can run is extended from one year to two. Warrants can now be executed by contractors reporting to law enforcement instead of only by law enforcement officers designated by the applicant for the warrant. Last, the amendment requires tech firms to break their encryption if necessary in order to assist law enforcement in the execution of a warrant, rendering all of our communications more insecure.

Amendment #115 is narrower; it amends the preamble to indicate a general expectation that law enforcement can use “modern methods of electronic surveillance” and greatly expands the designated offenses to the same list as Amendment #53.

Amendment #174 is almost identical to Amendment #53, though it excludes the “technical assistance” provision.

Turn Out & Testify: Cambridge Public Safety Committee Public Hearing, 10/18, 6:30pm

Do you think the Cambridge Police Department should obtain invasive surveillance equipment like drones and facial recognition technology, in secret? We don’t.

That’s why we, along with the ACLU of Massachusetts and other allies, are working to pass a local ordinance in Cambridge to require a transparent and democratic process before police can purchase new surveillance equipment. Community input and transparency are critical to ensure new technologies don’t get out ahead of our constitutional rights.

Join us on Wednesday, October 18 at Cambridge City Hall at 6:30pm for the Public Safety Committee Hearing, to learn about the ordinance and raise your voice in support of these commonsense protections.

As Cambridge residents, it’s important to be informed and engaged in the conversation about what Cambridge police are doing, and why. Hope to see you there!