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.”

Symbolic Spending to Combat Terror: Or, Let’s Spend Your Tax Dollars on Snooping rather than on Anything Useful

The new US Senate report on the uselessness of fusion centers reminds me irresistibly of an old episode of “Yes Prime Minister”:

Nobody’s interested in the Social Science Research Council. Or the Milk Marketing Board. Or the Advisory Committee on Dental Establishments. Or the Dumping At Sea Representation Panel. But Government still pays money to support them.
– Don’t they do a lot of good?
– Of course they don’t. They hardly do anything at all.
– Then let’s abolish them.
– No, no, Prime Minister. They are symbols. You don’t fund them for doing work. You fund them to show what you approve of. Most government expenditure is symbolic.

The fusion centers are the signature initiative of Homeland Security Secretary Janet Napolitano. They were supposed to collate and report quickly on terror threats. The report makes clear that whatever amount – maybe as much as one billion dollars – has been spent on them, has been wasted. Investigators were unable to find a single case where a fusion center had supplied information that thwarted a terrorist threat. Instead, our money has been spent on collecting a heterogeneous mass of partially reliable information on the activities of peaceful activists.

At the same time, the ACLU of Massachusetts’ new report on the Boston Police Department’s Boston Regional Intelligence Center paints a very similar picture, with more casual person-to-person oppression thrown in (video here).

It’s no surprise if ordinary people who oppose the increased power of government to scrutinize our lives, feel anxious about putting their heads above the parapet. I was anxious myself till I became an American citizen this year. Who wouldn’t feel angry at their taxes being wasted investigating groups like Veterans for Peace?

This isn’t about any rational threat assessment. This is about symbolism and fear. The US government has spent roughly one trillion dollars on anti-terrorism efforts since September 11, 2001. That trillion dollars could have saved any number of lives if deployed on useful things. Our roads and bridges are falling apart, our public school have to scrape for money for sports, arts and field trips, and tens of thousands of Americans die each year for lack of basic preventative health care. Rather than helping with those things, our politicians wrap themselves in the flag and pour tax dollars into a black hole labeled “Anti-Terrorism”, without bothering to find out whether we’re spending too much or too little, or what’s working and what’s not. What’s it to them? It’s not their money. It’s your money and mine, and the party has got to stop.

If the fusion centers can’t demonstrate that they are providing a useful service, they should be closed. The entire intelligence, counter-terrorism and defense budget should be audited every year. We should reimpose Constitutional limits on the deep state, requiring government officials to actually justify what they are doing to neutral third parties in the judiciary. No-one gets a get-out clause, in the name of “terrorism” or anything else.

This isn’t a “far-left” thing or a “far-right” thing. Seems like any issue on which the main parties agree gets ruled out of bounds for discussion. The Sunday talk shows are all about the horse race, who’s up and who’s down and who gaffed and who didn’t. But the sad fact that most Republicans and most Democrats agree on wasting our money on stuff like this, doesn’t make it right.

The Public Is Now “The Enemy”

Newly leaked documents show that a US Air Force network operations manager was investigated last year after expressing sympathy for Wikileaks and for Pfc. Bradley Manning, under a charge of “Communicating with the Enemy”. This charge is technically punishable with death.

Glenn Greenwald reports on the case here, but I want to explore a curious element of it. For the charge of “Communicating with the Enemy” to hold water, the servicemember in question would have to have done the following:

“(a) That the accused, without proper authority, knowingly gave intelligence information to the enemy; and
(b) That the intelligence information was true, or implied the truth, at least in part.”

“Enemy” is further defined as including:

“organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.”

The obvious question is: who is the “enemy”?

The simple answer is that the US government now sees Wikileaks itself as a non-state enemy organization, perhaps along the lines of SPECTRE in the James Bond movies with Julian Assange in the role of Count Blofeld; or, as a real-world analogy, like the bloodthirsty fanatics of al-Qaeda. It’s unprecedented for the US government to class as an “enemy” an organization that does not advocate, promote or use violence to further its aims, and the USAF documents themselves show the ridiculousness of the charge:

Air Force investigators were unable to come up with any actual victims that would result from helping Wikileaks, so they simply listed under “VICTIM:”, “Society” itself. This is further proof that the current exercise of American power is alien to the spirit of the Constitution. If there was no definable harm, why was there an investigation at all?

Let’s add into the mix the risible letter from NSA last month responding to Sen. Ron Wyden’s request to fund out how many US nationals’ communications were being spied upon, and saying that to inform Sen. Wyden of that would “violate the privacy of US persons.”

I ask again, who is the “enemy”?

Wikileaks is, like the New York Times, a mechanism for getting information out to the public, whether in America or elsewhere. The real “enemy” is not Wikileaks; it’s the American people itself. We have to be saved from ourselves. If we come to know too much – if information that embarrasses the American government were allowed to spread unchecked – then it would significantly undermine the ability of the American government to project its power unilaterally both at home and abroad.

Imagine a world where the government couldn’t take the country to war based on manufactured evidence, or a world where people realized that the use of American power in certain poor and Muslim areas of the world kills many innocent people and creates more new terrorists than are killed.

The real crime here isn’t “Communicating with the Enemy [sic]” We need a new term, and fortunately history gives us a clear precedent. So, in honor of the Soviet dissident Solzhenitsyn, I’m christening this crime “Anti-American Agitation”, or Triple-A.

We have got to get over the fact that there will always be, somewhere on the Earth, people who are harboring negative thoughts about the United States. Such feelings are a natural corollary of empire. We can’t stop people feeling that way by showering them either with propaganda or with bombs. We can, however, act to undermine anti-American sentiments by not actively supporting oppressive and undemocratic governments. For some reason, though, this cheap, safe, and effective alternative to current American policy never seems to occur to people in power.

To those who seem to be hastening to have America emulate the might and decadence of Rome: empires always fall. Rome fell, the British Empire fell, the Soviet empire fell. Trying to control too much engenders rebellion, and efforts to suppress rebellion make people lose faith in the empire’s reason for being. Let us not therefore, O Lord, become like the empire Tacitus describes, in the mouth of a British rebel:

“The terrible Romans, from whose oppression escape is vainly sought by obedience and submission. Robbers of the world, having by their universal plunder exhausted the land, they rifle the deep. If the enemy be rich, they are rapacious; if he be poor, they lust for dominion; neither the east nor the west has been able to satisfy them. Alone among men they covet with equal eagerness poverty and riches. To robbery, slaughter, plunder, they give the lying name of empire; they make a solitude and call it peace.”

DHS: All Your Blogs Are Belong To Us

Who is the Department of Homeland Security tracking online? EPIC brings the results of a Freedom of Information Act request that discloses a Department of Homeland Security contract with General Dynamics to monitor comments on websites.

DHSblogsmonitored

Thanks for the tips, DHS snooping guys! If I hadn’t been reading some of these before, I certainly will now!

Aside from the regular sites here that monitor and translate foreign news sources relating to threats to national security, there is a heavy emphasis on sites that take a critical view of the surveillance state (especially Wikileaks, Cryptome and Wired). Amusingly for my pedantic soul, Homeland Security Watch is listed twice.

Back in the days of J. Edgar Hoover’s COINTELPRO, government agents often had to physically impersonate civil rights activists if they wanted to be privy to their communistic conspiracies. Indeed, Occupy shows that they still do. But if J. Edgar Hoover had had the technological tools available to today’s FBI/DHS, there might have been no civil rights movement at all. The ability to plan dissent in secret, without fear of arbitrary imprisonment, torture and trial, was much on the mind of the insurgents we now call the Founders, and underlies the protections of the Fourth, Fifth, Sixth, Seventh and Eighth Amendments. The Founders, in fact, were keen in principle to safeguard the right to behave in ways the government of the day emphatically disapproves of.

I’m not saying that we can’t expect the government to snoop on people online. Comments on websites are in public view, and those who make them have no reasonable expectation of privacy in what they say. However, I am letting you know that (a) they are doing it, (b) that they provably have a priority focus on undermining opposition to the surveillance state, and that (c) if you’re interested enough in these issues to be reading this stuff, you’re probably right to be feeling watched.

Happy surfing!

obey-eye-poster-fnl

The House Reauthorizes the FISA Amendments Act, but Opposition Grows Among House Democrats

I care very passionately about Fourth Amendment rights, and of all the legislation on this issue, the FISA Amendments Act is possibly the worst. Hurriedly passed in 2008 with the Bush administration having one foot out the door, it retroactively immunized telecommunications companies from liability relating to their blatant disregard of laws intended to keep Americans’ phone calls secret. It allowed the executive branch to spy on Americans’ communications and retain their content, provided that the intent was to capture the content of communications with foreign nationals relating to terrorism – and who can say what the intent was? It was a blank check for the executive to do as it pleased, and perhaps that’s why then-Senator Obama voted for it.

You might think, then, that a House held by a party that waxes at length about how America is groaning under the tyranny of the Marxist-in-chief might oppose reissuing that blank check. As it turns out, not so much. The final vote tally was 301-118 in favor, including 227 Republican Yea votes.

So, what’s going on? What is happening to House Democratic support for civil liberties? And why are House Republicans giving the Obama administration a blank check on this, and only this issue?

Unexpectedly, among House Democrats, it’s not because the change in President has made them newly comfortable with warrantless surveillance. In 2008, when the law was originally proposed, 128 Democrats voted Yes, as opposed to 74 today. Many more House Democrats opposed it in 2012 than opposed it in 2008, even with a Democrat in the White House. 12 Democrats voted Nay in 2008 and Yea in 2012, and 9 Democrats moved the other way. However, Democrats new to the House, elected in 2008 and 2010, were much more likely to oppose reauthorization of the FISA Amendments Act. This is presumably because warrantless surveillance was a hot issue with the Democratic base during the last years of the Bush administration, making it more likely that freshman Democrats would have run on opposition to warrantless surveillance relative to Democrats previously in the House.

The seven Nay votes among Republicans came from Amash (R-MI), Duncan (R-TN), Gibson (R-NY), Johnson (R-IL), Jones (R-NC), McClintock (R-CA) and Paul (R-TX ). They’re not Tea Party Caucus people (only two of its 61 members opposed reauthorization); instead, Ron Paul’s Liberty Caucus is leading the way.  We can deduce from this that the Tea Party folks really don’t care about the Fourth Amendment, or alternatively that they really think that the surveillance covered under the FISA Amendments Act relates only to foreign nationals. Freshman Rep. Trey Gowdy (R-SC) asked tellingly during the one hour of debate allowed, “Are we to believe that the Fourth Amendment applies to the entire world?”, and many other speeches showed that House supporters of reauthorization thought it related only to foreign nationals.

Let me be blunt (I’m not that good at being tactful). There’s no out. There are no exceptions. The Constitution applies always, and people who claim it doesn’t can go suck it. Our Fourth Amendment should apply to every US government action anywhere in the world. Other governments’ actions can be bound by their own constitutions. But each government actor swears to uphold the Constitution, and they should do it. When the prison camp at Guantanamo Bay was set up, it was set up there on the theory that Guantanamo Bay was not US soil and the Constitution therefore didn’t apply there. I believe that wherever in the world the US government exercises control, its acts should be bound by the US constitution. If the US government wants to argue that the US constitution doesn’t apply at Guantanamo, then no legal vacuum can exist, and the US government is therefore bound in its actions there by the constitution of Cuba, from whom the US government leases Guantanamo Bay. And who wants that?

The courts, unfortunately, have endorsed executive abuses of the Fourth Amendment in part, and have introduced invalid distinctions between US governments spying on American nationals and US governments spying on foreign nationals. One day, I hope to see those distinctions overturned, and a uniform standard of probable cause applying to all surveillance efforts.

The FISA Amendments Act reauthorization now moves to the Senate. Please write your Senator to let them know that, for the sake of all of us, this vicious legislation should be allowed to die. Senator Ron Wyden (D-OR), to his immense credit, has put a hold on the reauthorization; please thank him here.

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]

Welcome

Welcome to the Campaign for Digital Fourth Amendment Rights.

My name is Alex Marthews. I started this Campaign in June 2012, after becoming a naturalized US citizen.

At the beginning of the century, I was an intern with the Electronic Frontier Foundation, and did extensive work on online civil liberties, devising UC Berkeley’s first course on Cyberlaw and writing my thesis on blocking and filtering systems. Since that time, I have grown increasingly worried as governments around the world have taken advantage of the Internet to track ordinary people’s activities ever more closely and systematically. Most notably, the US government has decided that when it comes to our digital data, the Fourth Amendment is dead, and that they can intercept and read all US communications without a warrant and without regard for the law.

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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 is one of our nation’s highest laws. It exists for a reason. In colonial times, the British government would issue “general warrants” allowing colonial officers to ransack people’s homes without probable cause, and then to arrest people on the strength of what they found. These “general warrants” have now made a comeback on a scale unimaginable to the oppressive administration of George III. We are all now presumed guilty until we have proven ourselves innocent.

The normal institutions that should have stopped this from happening are failing. The Republican party supported warrantless wiretapping under Bush, and now cannot easily oppose the same practices under Obama. The Democrats opposed it under Bush, and, with a few honorable exceptions, have failed to oppose it under Obama. The courts have by and large refused to hear lawsuits seeking to stop it, because you don’t have standing to bring a lawsuit unless you can prove that you have been spied upon, but the only people who can tell you that you are being spied upon are the people doing the spying. After the Second Circuit in Amnesty International v. Clapper unexpectedly ruled that plaintiffs did nevertheless have standing, the Supreme Court hurriedly approved the government’s petition to have the case heard in the fall, which ominously suggests that they may have agreed to hear it only in order to finally close off the courts as a venue for redress.

We must therefore ask ourselves as citizens and as defenders of freedom, what we can do to preserve the ability to communicate freely and openly, if neither the political system nor the courts provides an adequate check to a government run amok. As a first step, I will using my extensive experience running nonprofits to set up the Campaign as a 501(c)(4) nonprofit corporation, recruiting volunteers and supporters, and working out how to strengthen the Fourth Amendment in New England. If you would like to help, please contact me at (alex) at (warrantless.org).

If We Don’t Tell You We’re Watching You / You Maybe Maybe Maybe Can Still Sue

Amnesty Intl. USA v. Clapper, 638 F.3d 118, 2011 ILRC 1479, 39 Med. L. Rptr. 1481 (2d Cir. 2011) [2011 BL 73424]

It comes as no surprise that the federal government continues to fight tooth and nail to prevent court review of any kind of its warrantless surveillance of the world’s communications. What’s surprising is that, even with the strong deference shown by U. S. courts towards claims of “national security”, the occasional ruling still slips through. This is one of those. A mix of attorneys, journalists and human rights organizations have challenged the constitutionality of changes to the Foreign Intelligence Surveillance Act, arguing that though they do not have access to affirmative evidence that they are being surveilled, it is plausible enough that they are being surveilled that they have taken expensive and burdensome actions to change the way they communicate with their overseas contacts to take that possibility into account. The case will go ahead as a facial challenge to Section 702 of the FISA Amendments Act.

The Act’s language, accurately described by Lyle Dennison, heartwarmingly excludes intentional capture of US persons’ communications:

The amendments significantly expanded the federal government’s authority to engage in electronic surveillance that supposedly targets only foreign nationals, but may pick up communications involving Americans, although that is not allowed intentionally [my italics].

Let’s review. FISA got expanded to allow communications involving Americans to be vacuumed up at will without a warrant, so long as the vacuuming is not intentional. Perhaps the thinking was that this would insulate a computer algorithm from Fourth Amendment review, because a computer algorithm could be deemed by a court to have no intent. We would argue that a computer algorithm that does not distinguish between the communications of U. S. citizens and of non-U. S. citizens is in effect intentionally designed to pick up communications involving Americans. “Oops, golly gee, I don’t know how that happened” is not a legitimate defense against Fourth Amendment review. (h/t: SCOTUSBlog)

What, Was That Your Data I Lost In Between The Couch Cushions For 15 Months?

United States v. Metter, 2011 U.S. Dist. LEXIS 155130 (E.D.N.Y. 2012)

In a ruling Thursday, a New York federal court held that the FBI took too long to examine a defendant’s imaged hard drive after it was obtained via warrant. “The government’s more than fifteen-month delay in reviewing the seized electronic evidence”, wrote an acerbic Judge Dora Irizarry, “under the facts and circumstances of this case, constitutes an unreasonable seizure under the Fourth Amendment.” Judge Irizarry found that the government had shown no intent even to begin a review of the materials seized to determine relevance, and that in that context the search was not accomplished within a “reasonable” time within the meaning of the Fourth Amendment.

Maybe this is another sign that the federal courts are beginning to come to grips with the indefinite persistence and searchability of digital records, and are trying to set some limit beyond which Fourth Amendment notions of a “reasonable” length of time come into play. So, the good news is that by this ruling, the government can’t simply sit on all of your business and personal data for ever without reviewing its relevance to an ongoing case; the bad news is that as a district court ruling, its applicability to broader issues like indefinite government seizure of domain names or asset forfeiture is limited. (h/t: Cybercrime ReviewThe Volokh Conspiracy)

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