Security Theater on the T: Demonstration Condemns Random Bag Searches

On Saturday, a new civil rights group called “Defend the 4th” conducted a successful protest against the TSA. Despite the bitter cold, over 200 people turned out, marching from various points on the MBTA system and congregating on Boston Common. People attending included folks from Anonymous, Occupy Boston, the Pirate Party, the Republicans, the Ron Paul folks, the Socialists and a most righteous quantity of press organizations. Congratulations to organizers Garret Kirkland, Tamarleigh Grenfell, Frank Capone, Petey Bouras, Elvis Rodriguez and Joshua Chance Scafidi.

I was impressed to see that even in the depth of winter, 150 people in the Boston area were willing to turn out to defend the Fourth Amendment. That’s the equivalent of 1,500 in the summer.

Why were we so upset about the TSA’s activities on the MBTA? Since 2006, the TSA has been conducting “random” bag searches on the MBTA, where they scrape bags for explosives. They are “random” because federal law requires suspicionless searches to be random in order to pass legal muster, but the TSA can (and has) selected, say, Dudley Square T station (in a mostly-black neighborhood) rather than Symphony station (in the tony South End), as their base of operations, and then “randomly” chosen one out of five travelers. If a traveler doesn’t consent to a search, they have to go to another station (or sometimes simply a different entrance to the same station). Oh, and the TSA doesn’t work shifts on the MBTA at weekends.

The TSA must think that terrorists are the dumbest people on Earth. It requires only a minimal amount of intelligence for an explosives-carrying terrorist to decide that this policy makes Sunday the best possible day for a terrorist attack.

What does this remind me of? Oh yes…

asterix

From “Asterix in Britain”, 1966, by Goscinny & Uderzo

This is pure security theater. It’s designed to make the TSA look as if it’s doing something. Not coincidentally, it also extends the authority and reach of the TSA over our ordinary lives, and to justify expanded budgets. No evidence has ever been made public that any terrorist entity is targeting the MBTA. But even if there were such evidence, we have the right to travel freely around our country. The authorities, whether TSA or anyone else, must have probable cause before targeting any of us for a search. We’re not a country that does internal passports, random checkpoints, or asks citizens to show their papers without cause.

More specifically, the demonstrators’ constitutional concerns have at least some merit. In ten states (Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming), sobriety checkpoints and therefore also these kinds of random bag checks are explicitly unconstitutional. In Massachusetts, the state Constitution’s Article XIV suggests strongly that random bag searches would also be unconstitutional here:

Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right [cp. are unconstitutional], if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.

Got that? To be constitutional, a search “in suspected places” must “be accompanied with a special designation of the persons or objects of search”. Random bag checks don’t do this.

This should serve notice to the TSA. People are beginning to wake up to the TSA’s disrespect for long-established rights. There’s no evidence of a threat to the MBTA; there’s no evidence that random bag checks are effective; and the checks are of doubtful legality. Without some pushback, every agency will want a piece of the homeland security pie, till our every move in public becomes the object of surveillance by a newly and aggressively militarized police presence. We can afford a gentler and more civilized way of life.

The new Coakley bill, “An Act Updating the Wire Interception Law”, under a microscope

Want to know the details of what the new Coakley bill, An Act Updating the Wire Interception Law, really includes? Wonderful. I can already tell we’re going to be friends.

Here’s an advance hint: What do marijuana possession, annoying telephone calls, burglary, neglecting to depart a public assembly on the orders of police, failing to display the correct posters relating to the illegality of firearms and explosives in your school, and the sale of arrowheads used for hunting, have in common?

If you guessed “It isn’t legal in Massachusetts right now to take out an electronic wiretapping warrant for offenses this minor, but it would be under this bill”, then congratulations, you win the Grand Prize.

On, to a more detailed discussion!

There are three main points of this legislation:

1) To remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally.

2) To legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.

3) To double the length of an authorized wiretap, from 15 to 30 days.

A long-standing frustration of law enforcement in Massachusetts has been that the electronic wiretapping statute was drafted in response to the problem of organized crime specifically, rather than being devised to cover a certain set of the most serious crimes. So, in order to take out an electronic wiretapping warrant, law enforcement has first had to demonstrate that there is an ongoing investigation connected to organized crime, of which the wiretap would be a part.

From Digital Fourth’s analysis of nine US states (CT, FL, NJ, NV, NY, PA, RI, VA, WA), it is not unusual for the list of offenses to only include offenses characteristic of organized crime; it is unusual to require a prior demonstration that the specific offense under investigation is connected to organized crime. However, neither the AG nor the bill’s sponsors have yet been able to point to any case where a criminal was not brought to justice because of the lack of connection of his crime to organized crime, suggesting that this limitation on police activity has little actual effect on convictions.

Going beyond this, the bill before us implements a much broader list of offenses for which electronic wiretapping with a warrant is legal than is currently the case. We’re no longer talking about arson, rape, murder and witness intimidation in connection with organized crime. We’re talking about a wide array of offenses, down to the very minor ones listed above. Coakley proposes expanding the designated offenses to cover every possible firearms and drug offense, down to simple marijuana possession, and also every kind of illegal threat, harassment and hazing, or conspiracy to commit such crimes. This could be read as a response not only to the Newtown massacre and associated calls for gun control, but also to the sad cases of cyberbullying that Massachusetts has seen in its schools.

The most worrying new element in this bill is the conscious inclusion of language allowing wiretaps to be placed at phone companies’ switching stations. Let me show you what I mean.

Old language:

1. The term “wire communication” means any transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception

New language:

1. The term “wire communication” means any transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of such communications and shall include: any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, but shall not include: (i) any communication made through a tone-only paging device; (ii) any communication from a tracking device, defined as an electronic or mechanical device which permits the tracking of the movement of a person or object; or (iii) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. 

Surveillance activists are well aware that one of the biggest surveillance-related cases of recent years has involved the activities uncovered by whistleblower Mark Klein, where the NSA installed an electronic intercept for all phone traffic at an AT&T switching station in San Francisco (Jewel v. NSA). The conscious inclusion of such language by Coakley here suggests that law enforcement in Massachusetts would like to be able to start doing such things under color of law. A ruling is still pending on this case, but it is hard to square such activities with the Fourth Amendment’s requirement that:

no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This “particularity” requirement is a settled part of Fourth Amendment law, and there is no question that in trying to legalize this practice, Coakley is opening the AG’s office to being sued on constitutional grounds, which could cost the Commonwealth a bundle.

The provision to double the length of an authorized wiretap is unsurprising, and is pretty much a matter of convenience for law enforcement. Here at Digital Fourth, we have obtained through public records requests a complete list of the electronic wiretaps taken out in Massachusetts by the AG’s office and DAs’ offices during 2011 (information on 2012 is being collected). Of the total of 16 warrants issued, 9 had to be renewed, though none appear to have had to have been renewed twice. Presumably this fact is motivating the proposal to extend the date. However, neither the AG’s office nor the DAs’ offices report any denials of renewal applications. This implies that a renewal takes effort on the part of the prosecutor, but that there is no plausible doubt that an application to renew, once received, will be denied. Therefore, we are once again out of the zone of “reducing the ability of prosecutors to get convictions” and back into the zone of “increasing administrative convenience for prosecutors”.

Thankfully, relative to prior years, the AG appears so far to have dropped her previous suggestion to expand the list of “designated offenses” to an array of financial crimes, down to kiting checks and violating codes of ethics. For the moment, there’s also no sign of her previous unconstitutional proposal to substitute after-the-fact “certificates” for proper warrants signed before the fact by a judge. However, the bill still has serious defects as presented.

Here at Digital Fourth, we believe that if electronic wiretapping warrants are to be legal, they should be restricted to very serious crimes. While philosophically the organized crime requirement seems outdated, in practice it doesn’t seem to affect convictions. What it does do is to impose a high bar on launching an electronic wiretapping investigation, and that high bar is useful in itself. We feel that it would be a waste of police resources to mount electronic wiretaps of peaceful activists, conduct mass surveillance of traffic at phone switching stations, or turn every insulting comment on a schoolkid’s Facebook page into a criminal matter, all of which this bill would allow. Any surveillance that moves away from a particularized target towards generalized suspicion, or that chills people’s freedom of speech, is constitutionally suspect. The AG should accept, just as the federal government should accept, that there are activities that they and we may not like, that cannot realistically be suppressed by the government without violating the Constitution. Legislators thinking of cosponsoring this legislation should likewise be aware of the major problems it presents.

Won’t Somebody Think of the Children!!!1!!!: Mass Law Enforcement Proposes Massive Expansion of Wiretapping Powers

Some folks might be ashamed to use the bodies of dead kids as cover for a power grab. That clearly doesn’t include Massachusetts Attorney-General and failed Democratic Senate candidate Martha Coakley.

The Globe reports that Coakley, along with state senator Gene O’Flaherty (D-Chelsea) and state rep John Keenan (D-Salem), have introduced a new bill to massively expand law enforcement’s power to conduct electronic wiretaps of our communications (S. 1726 / HD 1194).

In her press conference, Coakley cited the school shooting in Newtown, and a 2011 case where a murder conviction was overturned because it rested on evidence obtained under a wiretap that was not valid under current Massachusetts law. What the Globe doesn’t mention, but Waltham’s Daily News Transcript does, is that the murderer in question was convicted later anyway (good reporting, Andy Metzger!).

There is not one scrap of evidence that easier electronic wiretapping would have prevented the school shooting in Newtown, or would prevent school shootings here in Massachusetts. The Newtown shooter wasn’t on Facebook or Twitter, and nothing has emerged relating to his computer or cellphone use.

More importantly, if the best evidence Coakley and friends can come up with to justify expanding wiretapping powers is a case where they got a conviction in the end anyway, that changes their argument completely. Instead of “this will help us convict more criminals”, they’re really arguing “this will save us some time and expense”.

Sorry, guys. That won’t cut it. Any limit on government investigatory powers makes investigations longer and more expensive. That’s the point. If investigations are costless, everyone will be investigated, because why not?

Last, and most laughably of all, both Coakley and O’Flaherty breathlessly told the press that “criminals have the upper hand” here in Massachusetts. Here’s a graph showing crime rates per head in Massachusetts, using federal crime statistics:

crime

The facts show that crime has been steady at less than 3 reported crimes per 100 residents per year since around 2002, and that that level is the lowest since 1968. Criminals don’t have “the upper hand” here in Massachusetts. Crime is about as low as it’s ever likely to go.

Let’s not kid ourselves what this is about. This is not about reducing crime. Remember, they can’t think of a single case where there’s a criminal walking free today because electronic wiretapping is only allowed under narrow circumstances here in Massachusetts. This is about power. The AG’s office knows that it’s technologically possible for them to monitor more of our electronic communications, and it bugs them that it’s illegal to do, whether or not that monitoring will result in more convictions. So, they’re ginning up false fears of crime, calling this an “update”, and trying to get the people of Massachusetts to agree to join them in the brave new mass-monitored world – which they, not us, would control.

Guys, you’ve been rumbled. Your arguments don’t make sense. Find better ones or go home.

Why not let them know how you feel?

To contact the Attorney General’s office, try here.
To contact State Senator Eugene O’Flaherty, try here.
To contact State Representative John Keenan, try here.

Aaron Swartz, RIP: Overcriminalization Claims Another Victim

Aaron Swartz

Aaron Swartz

There are no words to describe the loss to the world of brilliant technologist Aaron Swartz, who killed himself this weekend at the age of 26.

Aaron had already helped to develop RSS and Reddit, worked to stop the Stop Online Piracy Act, and was deeply involved in Internet activism. He could easily have devoted his extraordinary skills only to profit; instead, he committed himself passionately to openness and the spread of knowledge. Lawrence Lessig has summarized his work far better than I can. The creator of the World Wide Web, Tim Berners-Lee, gave the eulogy at his funeral.

Aaron’s death teaches us an important lesson about how the law operates here in 21st-century America. He was not the only local activist to be unnecessarily persecuted by government agencies. Laws relating to our Internet activities have been drawn so widely and so poorly that eager prosecutors can find grounds for indicting more or less anyone, for things that in former times the law would not have defined as crimes at all. Government agencies can now open investigations on people, and subject them to the sledgehammer of the criminal justice system, on the strength of nothing more than unwise posts on Twitter or translating the wrong materials. Prosecutors answer to nobody regarding the fairness or proportionality of their investigations.

The result is that dissidents who hamper powerful interests can far too easily be investigated and silenced. The result is that brilliant, original and public-spirited souls like Swartz exhaust their energies on meaningless legal battles, rather than developing new and wondrous technologies to solve problems we all face. We’ll never know now what Aaron Swartz would have come up with next, thanks to the casual brutality of a criminal justice system that cares more for creating criminals than for achieving justice.

Know what side you’re on. Overcriminalization hurts us all. We need to stand together, and rein in this crazy system, before it chews us all up.

UPDATE: Journalist Radley Balko has an excellent piece on “The Power of the Prosecutor” – go read it!

Albert Woodfox

Albert Woodfox of the Angola 3

Julian Assange

Julian Assange of Wikileaks

Bradley Manning

Bradley Manning, whistleblower on war crimes

Leah Lynn-Plante

Leah Lynn-Plante, anarchist imprisoned for refusing to testify to grand jury

Tarek Mehanna

Tarek Mehanna, imprisoned for translating al-Qaeda materials

Barrett Brown, hacktivist imprisoned for annoying the FBI

Barrett Brown, hacktivist imprisoned for annoying the FBI

The States Are Where It’s At: With End of Al-Haramain Case, Federal Litigation on Surveillance Hits a Brick Wall

The big guys, the big dogs, are going to own everything from the White House to the courthouse. Gov. Brian Schweitzer.

In the one case where someone has evidence of having been surveilled by the government’s warrantless wiretapping program, the lawyers representing the plaintiffs have decided not to appeal to the Supreme Court. They don’t believe the current court would side with them, and if they’re right, federal overturning of the warrantless wiretapping program will have to wait on a membership of the court more favorable to the Constitution.

This raises an important strategic question for surveillance activists: Which branch of government should we focus our efforts on?

Is there any realistic prospect of electing a President who will oppose warrantless wiretapping themselves? It’s hard to imagine. In 2008, Obama opposed it vehemently in public until he was safely the nominee, and then supported it with equal vehemence in private. Despite this, there was no progressive primary challenge to him in 2011-12 that would have forced him to adopt a less radical position. Any feasible winner of a Republican primary will have wedded himself to a policy of uncritical belligerence towards America’s enemies, which will necessitate continuing the program. The federal-executive route to a solution, then, depends on pure luck – on nominating a candidate who turns out in office to be a real friend to the Constitution.

Will Congress do anything? Congress has repeatedly failed to restrain the executive on warrantless wiretapping in even the most moderate ways. Right now, only just over one-fourth of Congressmembers oppose it. They are almost all Democrats, with a leaven of Ron Paul-inspired libertarian Republicans. This will only change substantially if the Republican Party chooses to focus on and oppose this program. They have been curiously reluctant to do so, perhaps because (1) they hope that a Republican President will be able to use those powers himself one day, or (2) because Congressional Republicans are conscious of having vigorously supported the Bush-era expansion of warrantless wiretapping and would feel hypocritical for opposing it now.

Therefore, many surveillance activists have put their hopes in the federal judiciary: that if a ruling is ever made on the merits, the warrantless wiretapping program will be overturned. We have reported ourselves on a variety of cases (Amnesty v. Clapper, Jewel v. NSA and Al-Haramain v. Obama et al. However, as we hear today (h/t Techdirt), the only case that has made it far enough and has some chance of success, is not being appealed up to the Supreme Court, because the plaintiffs’ lawyers fear that a (likely) adverse ruling would create a nationwide precedent.

catch-22-quote

So if the executive won’t rule itself, Congress won’t rule the executive, and the Supreme Court won’t overrule Congress or the President, what are we left with as surveillance activists?

This is the point where many surveillance activists will say: There is nothing left but revolution. I disagree. There is one method left: a slow, frustrating method, but one that has worked for groups on other issues, and that can eventually work for us.

Two major civil liberties fights over the last decade related to gay marriage and marijuana policy. In each case, while there was certainly activity on the federal level, activists began with an environment where the majority of public opinion was clearly, and strongly, against them. Working on the state level, and starting with “friendly” states, they were able to shift state policy even in the context of strong federal hostility to changes in state law. Then, the changed state policy context began to influence legislators elected from those states, and to constrain the ability and willingness of the federal government to enforce federal law.

Yes, I'm talking

Yes, I’m talking “laboratories of democracy”.

This is what Digital Fourth is about. We’re starting with Massachusetts. Join us.

Pay No Attention To The Disappearance of Your Rights: Repulsive FISA Amendments Act Renewed for Another Five Years

In an entirely expected development, on December 28, while talking heads were yammering non-stop about the so-called “fiscal cliff”, the Senate quietly passed a five-year renewal of the repulsive FISA Amendments Act, re-legalizing warrantless spying on Americans and ensuring that the Fourth Amendment’s requirement of individualized suspicion before conducting surveillance remains a dead letter.

The interesting questions here are two. Why is it that the media is not giving such a gross violation of the Constitution the weight it deserves? And, why is there much more public interest in other issues?

Scott Shackford over at Reason.com has an effective article about the media presentation of this issue:

Indeed, the very secrecy behind the application of federal domestic wiretapping has made it impossible to introduce a human narrative. We do not even know how many Americans have been spied on due to these rules (which was what Wyden’s amendment was trying to fix). Like our foreign drone strikes and indefinite detention laws, the public’s distance from the actual rights violations (and government-fueled fears of acts of terrorism) is a useful barrier for the state to get away with expanding its authority beyond the Constitution’s limitations without significant voter pushback.

Whereas, just about everybody’s on Facebook.

Bluntly, the government is obsessively secret about its surveillance program at least in part for propaganda purposes. It is a lot harder to object to a program when you can’t identify the people who have been harmed, or put a face to the story. The kind of surveillance that is the subject of litigation in Jewel v. NSA, for example, where all phone calls in an exchange were routed through a secret NSA-run room, is deeply disturbing because of the awesome potential power it gives to the government, rather than because of actual prosecutions that have been mounted using improperly obtained evidence.

Perhaps, also, this is a topic that is difficult for the TV media to deal with in the time they have. It’s hard to get across to people within the span of a short broadcast how much Congresspeople of both parties are self-deceiving and willing partners in the shredding of the Constitution. It’s much easier to go with the straightforward, patriotic narrative that these measures are necessary. The Democrats agree, the Republicans agree, most Beltway commentators agree, so where’s the controversy to report?

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.

By 2020, Cellphones Will Be Able To Track You Inside Buildings Too

Science Daily reports that one of the technological limitations on cellphones’ tracking capabilities is about to be lifted.

A research team led by Professor Dong-Soo Han of the Department of Computer Science at the Korea Advanced Institute of Science and Technology has developed a way of locating cellphones using their WiFi fingerprints to within 10 meters in indoor locations in cities.

The article is pretty gung-ho about the capabilities of this new technology, though they also report Professor Han as suggesting that “There seems to be many issues like privacy protection that has [sic] to be cleared away before commercializing this technology.”

Yes, Professor Han. That may be something of a concern.

In particular, may I ask, pretty please, that legislators considering bills to protect the privacy of cellphone users’ location data, bear in mind that this kind of indoor location detection has been shown to be possible? I give law enforcement oh, about five minutes after the commercial release of this technology before they start using it in investigations.

H/T to the ACLU for this graphic

H/T to the ACLU for this graphic

The obvious Fourth Amendment issue here is that the current rulings allowing law enforcement use of cellphone data tend to rely heavily on the fact that when you are outdoors, you are not generally held to have a reasonable expectation of privacy, and that your location is reasonably observable to members of the public. If cellphones become capable of tracking you indoors, where you do typically have a reasonable expectation of privacy, then judges will have to choose whether to weaken the Fourth Amendment further by not requiring a warrant for the seizure of cellphone data, even though it contains data that would be considered private, or to strengthen the Fourth Amendment in the light of cellphones’ increased capabilities by barring its use without a warrant. These are rough waters for any jurist, which is part of why we strongly support cellphone location privacy laws that unambiguously require law enforcement to obtain a warrant before being allowed to collect cellphone location data.

The research is reported as Hyunil Yang, Giwan Yoon, and Dongsoo Han, “Floor Accuracy Improvement of Wireless LAN based Large Scale Indoor Positioning”, IEEE MTT-S IMWS-IRFPT 2011, KAIST, Daejeon Korea, p.89-90 (2011).

Free Essam Attia, Political Artist

Hey, kids! Worried about law enforcement using drones for surveillance? Well, maybe you oughta just shut your goddamn piehole on that, because here in the New America, complaining about that shit can get you arrested.

That’s right. In the home of the First Amendment (my third favorite Amendment, after the Fourth (obvs) and the Ninth (link provided)), if the NYPD doesn’t like you challenging their use of drones by, say, putting up satirical posters on a few phone booths in downtown Manhattan, they’ll throw the book atcha.

essam-attia-drone-poster

After a no doubt thorough tossing of his apartment, Maine-born artist and former military geospatial analyst Essam Attia has been charged with “56 counts of criminal possession of a forged instrument, grand larceny, possession of stolen property and weapons possession after allegedly having an unloaded .22-caliber revolver under his bed“.

I’m just guessing here, but “forged instrument” presumably means “satirical posters using the NYPD logo for First-Amendment-protected political speech”. The most serious charge, for possession without a license of a small-caliber unloaded handgun, wouldn’t even be a crime in most jurisdictions; Attia claims that the gun is an antique, which under New York state law would not require a permit.

Let’s sum up. The NYPD, in the course of an investigation into an extremely minor crime (described as “kiosk vandalism”, though the kiosks were not in fact damaged), go through every inch of the suspect’s apartment, and find material that under current laws can be used to support over fifty criminal charges. There’s no word from the NYPD or any press source about what the alleged stolen property is. If Attia is correct that the gun is an antique, there’s no basis for the charge. And yet they are still able to launch in, lock him up, and submit him to all the terror and trouble of the criminal justice system, because he embarrassed them in public. They have loaded him up with charges purely to serve as a deterrent to others thinking about criticizing the NYPD – and this is even before the NYPD has any actual drones out in the field.

cartman-autorita

Maybe this is just the NYPD’s artistic response to Attia’s artistic critique. And maybe they should just drop the charges, already. Jeez, people.

UPDATE: My own Congressman, Ed Markey, has just introduced the Drone Aircraft Privacy and Transparency Act. It’s surely a good idea; but note that even one of the House’s most liberal members can offer up only that law enforcement agencies should be careful about their use of drones, not that we should stop or reverse the process of approving the use of drones for domestic law enforcement purposes.

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.

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