Category Archives: Uncategorized

Yay of the Day: In Ninth Circuit, Fusion Center Employee Not Completely Unaccountable for Infiltrating Peaceful Anti-War Group

The long-running case Panagacos v. Towery deals with the two-year-long infiltration by fusion center employee John Towery of peace groups including Students for a Democratic Society, the Olympia Movement for Justice and Peace, the Industrial Workers of the World, Iraq Veterans Against the War, and an anarchist bookstore in Tacoma (probably this one). Towery is technically a military employee, and courts are typically highly deferential to the military. However, the most recent ruling at the Ninth Circuit Court of Appeals allows the plaintiffs from these organizations to continue with their First and Fourth Amendment claims against the military. The National Lawyers Guild, which is involved in the case, believes this to be “the first time a court has affirmed people’s ability to sue the military for violating their First and Fourth Amendment rights”.

Good.

There are obvious analogies here to the Boston PD’s gross violations of protesters’ rights documented in the ACLU of Massachusetts’ Policing Dissent report this fall. Again, we see the fusion centers act as a nexus for the investigation and disruption, not of actual terrorist plots, but of peaceful opponents of the military-industrial complex here at home.

All my heroes have FBI files.

“All my heroes have FBI files”, by Jimi G.

Joined-Up Government Can Be A Bad Thing

The National Counterterrorism Center is now being allowed access to all governmental databases to trawl for suspicious activity. The Wall Street Journal (“U.S. Terrorism Agency to Tap a Vast Database of Citizens”) and the Volokh Conspiracy (“DHS Dresses Up A Turf Fight as a Privacy Issue While Ignoring the Lessons of 9/11”) both report on this development, from opposing perspectives.

Just because one part of the government has a certain set of data, doesn’t mean that all other parts of the government should have it. Your tax return is kept privately within the IRS; records of your immigration applications stay with USCIS; Medicare keeps your health records private; and so on. This kind of data confidentiality used to be routine; but once again, in the service of terrorism, the normal limitations on government power are considered expendable.

This is what happened.

NCTC asked the Department of Homeland Security for access to a database on terror suspects. DHS gave NCTC the disks, on the condition that NCTC, within 30 days, remove information regarding “innocent US persons” (innocent non-US persons are apparently fair game).

Possibly terroristic non-US person Malala Yousafzai.

NCTC couldn’t do it. In fact, after 30 days they had barely been able to download the database from the disks. Even with another 30-day extension, they couldn’t do it, and in response to this failure, they have demanded, and gotten, even broader access to even more government databases. The only constraint is that any time they access a new database, they have to publish that fact in the Federal Register.

Their problems in removing “innocent US persons”‘ data are completely understandable, because NCTC was anxious that today’s innocent person may not turn out to have been innocent tomorrow. How do you remove innocent people, when nobody is provably innocent?

Your government, protecting you. With science!

From a resource standpoint, how could NCTC possibly deploy enough skilled analysts to prove the innocence of the (at minimum) hundreds of thousands of people this one database contained? And that’s just one of the many databases to which they will now have access!

This is an example of what, over at EFF when I was interning there in 2000, we used to call “Data Valdez”. The amount of data being created is enormous and essentially impossible to thoroughly analyze. The federal government has, in its various parts, access to data on every part of our lives, but no matter how fast its computers, it will never, ever have the human resources necessary to process it properly. Demanding access to ever greater oceans of data is not going to help. It’s a processing problem, not a data problem.

That’s why, at Digital Fourth, we recognize the wisdom for law enforcement of aggressively applying the constraints identified in the Fourth Amendment. Even if you have the ability to collect more data, it works better to consciously commit to collecting less. Law enforcement should, for its own sanity and ours, collect, retain and use in investigations only data that is related to investigations of actual, well-defined crimes committed by previously identified people. Only then will the volume of data collected be low enough that law enforcement will be able to process it thoughtfully and intelligently. Yes, that means that connections will be missed that will only become apparent after the fact of an attack. But we cannot insure perfectly against the probability of future attacks. We have to invest our resources rationally, and we have vastly over-invested in preventing terrorist attacks relative to other things that kill many more Americans.

Headlong Flaming from the Ethereal Sky: David Petraeus, Civic Leadership and the Surveillance State

Nearly one thousand news sources are now avidly following the details of the Petraeus sex scandal. Turn on the TV, and you’d be forgiven for thinking that some kind of cosmic hero had fallen to earth. In reality, Petraeus was pumped up from the beginning. His hero status was always a media creation, and it’s only really the media that now feels “betrayed” by the “surprise” that he was not the new Captain America that they had imagined him to be.

While his fall matters less than the coverage would suppose, it does raise a couple of questions that should make us all uneasy.

First, Petraeus and Broadwell worked hard to conceal their affair from prying eyes – setting up a dedicated Gmail account, not emailing from home, and so on – but their precautions were pathetically inadequate in the face of an FBI that has gleefully abandoned any pretense at respecting the communications privacy of Americans. Get on the government’s radar, the Petraeus case seems to tell us, and every secret you have will be spilled, whether or not any crime was actually committed.

Second, Broadwell herself had ambitions of running for office someday. That so ain’t happening now. Political opponents would barely have to lift a finger to discredit her candidacy. You can easily argue that she brought it on herself; but in this new digital age, your past humiliations stay with you all your life. There are no fresh starts and no redemptions. If past generations of presidential candidates had had all their sins – with pictures! – held against them, then scarcely a one (except perhaps Carter) would have passed the test. New generations, who have lived all their lives online, are going to be deterred from entering public life by spectacles like this, and we should expect many more. We are rapidly approaching the point where only Pralite monks will be able to risk entering public life.

Some surveillance activists might feel satisfaction in the fact that a leading figure of the surveillance state has been laid low by apparently warrantless surveillance from a competing agency. The surveillance revolution is indeed beginning to consume its own children. Truthfully, it arouses only pity in me.

Use every man after his desert, and who should escape whipping?

As usual, Glenn Greenwald hits the nail on the head:

Glenn Greenwald: Petraeus Had Affair w/ Biographer, Corporate Media Had Affair w/ Petraeus

Exopolitics 101: What to Do When Both Major Parties Agree, And You Don’t

I have steered off of discussing the presidential race so far, because on most Fourth Amendment matters the candidates of the two major parties are in complete agreement. Topics to do with surveillance, such as the NSA’s massive warrantless surveillance program, the National Defense Authorization Act, and aerial surveillance by drones and satellites equipped with high-resolution digital cameras, have been largely absent from the presidential debates and from discussions by surrogates on TV and radio. However, so that there’s no doubt on the matter, it’s worth making Digital Fourth’s position clear in advance of knowing who the president will be.

I opposed Clinton’s abuses of the Fourth Amendment under the ECHELON and Carnivore programs. After 9/11, I opposed Bush’s disregard of FISA and his massive expansion of warrantless wiretapping. I opposed Congress’s retroactive legalization of the telecommunications companies’ participation in warrantless surveillance of Americans. Under Obama, I still oppose his continuing and in some respects expanding upon Bush’s legacy.

Our stand does not depend on which party is in power. Whether the US President for the next four years is Romney or Obama, we will vigorously oppose the bipartisan effort by the deep state to disregard the Fourth Amendment. We will support efforts to hold administration officials, past and present and of either party, accountable for the abuses they have committed. Within Massachusetts, and in New England more generally, the dominance of Democrats in state office has regrettably not prevented the abusive surveillance conducted by the Boston Police Department of peaceful activists, or the futile waste of tax dollars represented by the Commonwealth Fusion Center. We are, and will continue to be, willing to work with elected officials and activists within and outside of the party system who have an interest in the meaningful restoration of US residents’ Fourth Amendment rights.

We may be frustrated by the failure of Democrats and Republicans to address this issue, but we still encourage people to go vote. Let your representatives know how you feel on these issues. Write letters, make calls, and let them know that we’re watching them watching us. If you want to help directly with Digital Fourth’s legislative efforts, sign up here. And on Election Day, may the incrementally better guy win.

Election Watch Potluck Social!

Where: Cambridge Innovation Center, One Broadway, 4th Floor, Cambridge, MA 02142
When: 7pm, November 6.
RSVP to: alex@warrantless.org

Come to our nonpartisan Election Watch Night, watch the results roll in, and talk tech and surveillance stuff with Digital Fourth volunteers. There will be also a mock election for non-US Citizens.

Meanwhile, Here in Massachusetts: Legislation Limiting Surveillance Proposed

Many people don’t realize that there’s plenty of activity in US state legislatures around warrants, surveillance and privacy.

Trust me. I’m from the government.

One good bill that has been proposed this session here in Massachusetts is S. 1194 / H. 1336, “An Act to protect privacy and personal data”

These identical bills were brought forward by Senate Majority Whip Harriette Chandler (D-Worcester) and Rep. Jason Lewis (D-Winchester and Stoneham) and strongly advocated for by the ACLU of Massachusetts in the last two legislative sessions.

The bills are mainly concerned with limiting the activities of the Commonwealth Fusion Center and Boston Regional Intelligence Center, and restricting the surveillance of peaceful activists. There’s a lot of reason to suppose that the main effect of the work of these centers is to chill peaceful efforts to petition the government for redress of grievances (as the First Amendment puts it).

If the bills pass, CFC and BRIC will be required to not retain criminal intelligence information or personal data if there is no reasonable suspicion that the individual is involved in criminal conduct or activity. They must adopt information security practices that minimize retransmission of such information, provide an annual report to the secretary of state, and conduct an annual audit of their information collection, which will be a public record. No state or local law enforcement agency, prosecutorial office, criminal intelligence system, police or peace officer, or agent thereof shall track, collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership or other entity unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is involved in criminal conduct. There are further rules specified to limit the dissemination of such “protected information” and to require individuals to sign off on such dissemination so that they can be held accountable for violations.

You can find out here who your state senator and state representative are. Please call them to let them know that you support these bills. This is the list of current supporters:

SENATE: Harriette L. Chandler, Cynthia S. Creem, Kenneth J. Donnelly, James B. Eldridge, Susan C. Fargo, Thomas M. McGee, Karen E. Spilka, Jennifer E. Benson, Steven L. Levy, Martha M. Walz
HOUSE: Frank I. Smizik, William N. Brownsberger, Peter V. Kocot, John P. Fresolo, Kay Khan, Denise Andrews, James Arciero, Cory Atkins, Ruth B. Balser, Jennifer E. Benson, Linda Campbell, Gailanne M. Cariddi, Thomas P. Conroy, Carolyn C. Dykema, James B. Eldridge, Christopher G. Fallon, Linda D. Forry, Sean Garballey, Jonathan Hecht, Bradley H. Jones, Jay R. Kaufman, Stephen Kulik, Steven L. Levy, Elizabeth A. Malia, James J. O’Day, George N. Peterson, Byron Rushing, Jeffrey Sánchez, John W. Scibak, Carl M. Sciortino, Theodore C. Speliotis, William M. Straus, Benjamin Swan, Chris Walsh, Martha M. Walz, Thomas M. Petrolati, Paul Adams, Alice K. Wolf

Worldwide Anti-Surveillance Protests Tomorrow

Protests worldwide tomorrow against the surveillance state.

As Joseph Heller once put it, “Just because you’re paranoid doesn’t mean they’re not after you.”

Eroding Rights Roundup: Even The Economist Now Senses There’s Something Wrong

Hard as it is to believe, we now learn that the NSA may have actually violated the law relating to wiretapping “at least once.” This is accurate only in the sense that the entirety of the NSA’s activities from the moment of its founding to the present day constitute one enormous, continuous violation of the law. The NSA exists to violate the law in the service of the government of the day, whether that government is chasing the communiss, peaceniks, tree-huggers, towelheads, or journalists who hurt the government’s fee-fees and make it feel sad.

Even The Economist, more commonly observed making the case for the crucial importance of vampire squids to the world economy, is beginning to sound the alarm on the NSA’s data collection efforts:

A good general principle [for reforming American laws on data privacy] would be to afford data stored in a private e-mail account as much protection as letters stored in a locked desk drawer – that is, law-enforcement agencies wanting to get a look at them should need a warrant. … Metadata can now be amassed on a vast scale, and … deserves far more protections than it now receives … the ECPA [Electronic Communications Privacy Act] is almost impossible to apply consistently or fairly.

Some US elected officials are breaking ranks with the Obama administration to propose meaningful reforms. Representatives John Conyers (D-Mich) and Jerrold Nadler (D-NY)’s new ECPA Modernization Act would extend ECPA to cover data in the cloud, if it can make it out of committee; on the Senate side, Senators Jeff Merkley (D-OR), Ron Wyden (D-OR) and Jon Tester (D-MT) introduced the Protect America’s Privacy Act to require warrants in order to spy on Americans’ communications, and to require surveillance to actually stop in the (unlikely) event that the FISA court rejects an application for a warrant. CREDO is running a petition campaign to support this legislation – add your name today!

Last, legal scholars are weighing in on how the rapid changes in technology are changing Fourth Amendment jurisprudence. Aglaia Ovtchinnikova provides an excellent overview of relevant precedent in “A Technologically Sensitive Amendment”;  heavyweight legal scholars Christopher Slobogin and Orin Kerr heroically take on the messy “mosaic theory” of the Fourth Amendment following January’s split decision in U. S. v. Jones; and Paul Ohm calls for a “thorough reinvention” of the Fourth Amendment in order to prevent the advance of the surveillance state in “The Fourth Amendment in a World Without Privacy”.

[h/t: The Economist; FourthAmendment.com; Wired.com]

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