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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]