Microscope Monday: Analysis of Massachusetts’ proposed Liberty Preservation Act, H. 1428

steampunk_microscope

The newly formed Massachusetts chapter of PANDA is bringing forward legislation on Beacon Hill to prevent the indefinite detention of American citizens under the National Defense Authorization Act, or NDAA.

The notion that the President should be allowed to detain US citizens without trial and without limit in time of war is a horrifying idea, but not a new one. President Lincoln suspended the writ of habeas corpus during the Civil War. President Roosevelt interned Americans of Japanese descent during the Second World War. It had seemed by the early 1990s that we were recognizing that shameful past and leaving it behind. Then came 9/11.

In the aftermath of the attack, 1,200 Muslim Americans were detained on `material witness warrants’ and interrogated, often without any evidence beyond their religion. American citizen and civilian Jose Padilla was arrested in 2002, committed to a military brig for three and a half years, tortured and possibly driven insane, before being transferred to civilian court and sentenced to 17 years in prison in 2008, for conspiracy to conspire to commit terrorist acts abroad.

The US government in these cases was exceptionally anxious to preserve authority to detain anyone for any length of time, provided they could be vaguely associated with al-Qaeda. Many people expected that President Obama would abandon such arguments and restore the rule of law. In reality, he has allowed the power of indefinite detention to pass into law. In 2012, he issued a signing statement to that year’s NDAA (it’s an annual thing), claiming that he would never use the power of indefinite detention. That’s not even legally binding on him, let alone on his successors. In 2013’s bill, even that signing statement has disappeared from view. Hence, people in many states have been proposing bills like the Liberty Preservation Act.

Over the fold, for the details of what the Liberty Preservation Act would do!

[Previous Microscope Mondays covered: the Free Speech Act; the Electronic Privacy Bill; the Drone Privacy Bill; and the infamous Act Updating the Wire Interception Law.]

Continue reading Microscope Monday: Analysis of Massachusetts’ proposed Liberty Preservation Act, H. 1428

Major Crimes Plunge, But AG’s Office Still Pressing To Wiretap All The Things

One Catch-22 of criminal justice reform is that law enforcement will always ask for more powers, whether crime is down or crime is up. If crime is up, they need more powers to deal with criminals who have “gotten the upper hand.” If crime is down, they need more powers to keep it from rising again.

The Globe reports that major crimes in Boston are sharply down in the first three months of 2013 compared to 2012. In case you think this is a momentary glitch in the overall statistics, let’s look again at how crime per head in Massachusetts has been falling for a long time:

Martha Coakley's terrifying crime wave
Martha Coakley’s terrifying crime wave

Mayor Menino attributes the drop to community policing and neighborhood watch groups, assisted by the more severe winter. It’s almost as if militaristic and confrontational policing is actually less effective at reducing crime than people like to think.

So, we have a simple challenge for Attorney-General Martha Coakley. How far does crime have to fall, before you back off on your biennial demand for vastly expanded powers to take out electronic wiretaps when investigating minor crimes? Lazy, “one crime is too many” thinking is not enough when our Fourth Amendment rights are on the line. We don’t just need better community policing; we need an AG’s office that is willing to look at criminalization as a problem rather than looking at every person drawn into the criminal justice system as a victory for them.

By 2020, Americans May Have Started Talking About The Right To Obscurity

Shepard Fairey's artwork for Internet anti-censorship campaign
Shepard Fairey’s artwork for Internet anti-censorship campaign

Americans are used to thinking of ourselves as “rights pioneers.” But the American constitution is particularly difficult to amend, and is therefore slower than most to respond to a rapidly changing technological and cultural landscape. Justice Brandeis’s 1890 law review article on “The Right to Privacy” conceived of the Constitution as embodying a central, unarticulated “right to be let alone”, expressed as the “right to an inviolate personality.” Such a right was eventually recognized in the context of marriage by the US Supreme Court in Griswold v. Connecticut (1965), famously arguing in much-mocked language that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The difficulty with embodying privacy as a right consists in the fact that nobody can define it clearly in a way that is not highly contingent on time-specific cultural and generational norms; we cannot say now, in 2013 and after the passage of (to name only two) marital rape laws and gay marriage laws, that the norms governing marital privacy are the same now as when Griswold was decided. Thus, culture and technology continually gallop ahead, while the law is still getting saddled up. In this post, we explore some innovative efforts to help the law catch up.

Continue reading By 2020, Americans May Have Started Talking About The Right To Obscurity

Time to Gut CFAA Like The Rotten Fish It Is: Protests and Reform Proposals for Computer Crime, with Added Matthew Broderick

It’s not usually our dealio here at Digital Fourth to weigh in on federal digital rights, because terrific organizations like EFF, Fight for the Future, Demand Progress and the ACLU generally do that heavy lifting for us. But so much has happened regarding prosecutions under the Computer Fraud and Abuse Act that it’s worth focusing on what this law is, why it’s in such a mess, and what can usefully be done about it.

When originally passed way back in 1986, the intent of the CFAA was to ban hacking. This kind of hacking:

Wait, Ally Sheedy was in this? I must watch it again.
Wait, Ally Sheedy was in this?

In other words, what they were concerned about was access to “Federal interest computers”, namely computers belonging to the government, or at certain designated utilities like nuclear power stations or financial institutions. Now, however, the law covers pretty much any computer held by anyone.

Why is that a problem? Read on!

Continue reading Time to Gut CFAA Like The Rotten Fish It Is: Protests and Reform Proposals for Computer Crime, with Added Matthew Broderick

Microscope Monday: Analysis of Massachusetts’ proposed Free Speech Act, S. 642 / H. 1357

steampunk_microscope

Have you ever wondered why your Mondays have become an unending bliss of delight, falling upon you like Zeus visiting Danae in a shower of gold? It must surely be because of Microscope Monday, your weekly look at notable surveillance-related bills on Beacon Hill.

This week’s bill, tying in with our new Campaign to Close the Fusion Centers, is “An Act to protect freedom of speech and association”, more conveniently referred to as the “Free Speech Act”. The bill updates last legislative session’s “Act to protect privacy and personal data”, covered in October 2012 on this blog here. It was proposed by Assistant Majority Leader Sen. Harriette Chandler (D-Worcester) and Rep. Jason Lewis (D-Winchester). Its basic purpose is to deal with the fallout from the Policing Dissent scandal, where the Boston Police Department, in concert with the Boston Regional Intelligence Center, was found to have been spying on peaceful groups like Veterans for Peace and defining them as “extremists.” Protesters, including one person I knew, were hauled in and interrogated about their associates, without any actual crime having been committed.

We’re glad to see some action being taken to deal with these problems. But, what does the bill actually say?

[Previous Microscope Mondays covered: the Electronic Privacy Bill; the Drone Privacy Bill; and the infamous Act Updating the Wire Interception Law.]

Continue reading Microscope Monday: Analysis of Massachusetts’ proposed Free Speech Act, S. 642 / H. 1357

Close the Fusion Centers, Free the American People

leo_reynolds_spy_modified

[Artwork adapted slightly from Leo Reynolds on Flickr]

After the 9/11 attacks, a traumatized nation considered whether the attacks could have been thwarted by coordinating intelligence-gathering better between the FBI and CIA. From that impulse grew the fusion centers, of which there are now at least 72 77 86 across the country. Us lucky SOBs here in Massachusetts get two, the Boston Regional Intelligence Center at One Schroeder Plaza, Roxbury, MA 02120 and the Commonwealth Fusion Center at 124 Acton Street, Maynard, MA 01754. The idea was that they would be able to thwart terrorist attacks before they occur, by gathering representatives from different agencies, and in some cases the military and the private sector, together to report on “suspicious activity”. In practice, it has not worked.

Thing is, actual terrorists are relatively thin on the ground. A network of 72 77 86 fusion centers might handle three genuine cases of terrorism between them in any given year. That’s not enough to enable each fusion center to show that it’s doing anything at all. What’s a good bureaucrat to do?

Continue reading Close the Fusion Centers, Free the American People

“Time to Get Smart on Crime”: New Report Pans Massachusetts’ Criminal Justice Practices

Getting tough on crime, 1756-style
Getting tough on crime, 1756-style

The Boston Globe is publicizing a new report from Community Resources for Justice and MassInc, focusing on Massachusetts’ unexpectedly draconian and wasteful criminal justice policies.

We heartily recommend that you read the whole thing, but here are the striking take-aways.

We are spending 6% more on incarceration than we are spending on education. Low-level drug offenders sentenced under mandatory minimum laws are driving a substantial portion of the costs. Offenders are routinely overclassified into higher and more expensive levels of security than they really need. And Massachusetts is not being strategic about its incarceration spending to make sure that it is getting the least reoffending for a given budget.

A very human desire to lock everybody up for ever takes no account of the costs, or of how doing that crowds out investment in other things we might like more of, like better education, lead abatement or public transportation, which also in turn have a positive effect on crime down the road.

I wonder if the Lege and the AG’s Office are listening? Or will they keep wasting our taxes on strategies that don’t work?

[VIA: Sentencing Law and Policy]

The Theory of Surveillance: The Panopticon and the Stainless Steel Rat

As we residents of Massachusetts gambol heedlessly downward from the Mountains of Liberty toward the Swamps of Oppression, let’s take a brief breather to consider a more general commentary on surveillance.

Philosophical examinations of governmental surveillance powers center on eighteenth-century founder of utilitarianism Jeremy Bentham and twentieth-century philosopher Michel Foucault. The key concept used to inform their thinking is Bentham’s notion of the Panopticon:

The Panopticon: the ideal prison
According to Bentham, the ideal prison

The Panopticon was a prison with the cells in the outside circle and the guard tower in the center. Each prisoner was, at all times, perfectly visible to the guards. The guards were invisible to the prisoners, so prisoners had to assume that they were being permanently watched.

Continue reading The Theory of Surveillance: The Panopticon and the Stainless Steel Rat

Microscope Monday: Massachusetts’ proposed Electronic Privacy Act (S. 796 / HD 1014)

microscope

Howdy and good morning, lovers of the Internet freedoms!

It’s time for another in our “Microscope Mondays” series, where we take a good hard look at pending legislation here in Massachusetts relevant to surveillance. Previously, we’ve covered a praiseworthy effort to restrict the use of drones for law enforcement purposes and Martha Coakley’s should-be-better-known “Let’s Wiretap All Of The Things Even Though Crime Is Down” bill. This week, it’s the turn of S. 796 / H. 1684, “An Act Updating Privacy Protections for Personal Electronic Information”, sponsored by Senator Karen Spilka and departing Representative Marty Walz.

Continue reading Microscope Monday: Massachusetts’ proposed Electronic Privacy Act (S. 796 / HD 1014)

Raytheon’s “Riot” Software: Big Data Analytics and Data Security for Activists

I run the Campaign for Digital Fourth Amendment Rights out of an incubator in Cambridge, Mass. Many startups at the incubator base their innovative products around “big data”, and the concept attracts substantial academic attention locally as well.

It’s natural that law enforcement would be interested in employing the same techniques, accessing information that people put on the Internet and on their devices about themselves, their location and their habits. Massachusetts-based Raytheon, the world’s fifth-largest defense contractor, has developed a product for law enforcement called “Riot”. Riot acts as a search engine, gathering information about people from Facebook, Twitter, Foursquare and other places. Raytheon refers to Riot as “extreme-scale analytics”, possibly because “wicked awesome analytics” was already trademarked. The Guardian has found a video from inside Raytheon demonstrating the software’s capabilities.

Continue reading Raytheon’s “Riot” Software: Big Data Analytics and Data Security for Activists