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

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]