Digital Fourth (Restore The Fourth – Boston)
The Massachusetts campaign to protect digital data from warrantless government surveillance
If you are in the BU area on Wednesday evening, come by to hear interesting speakers talking about privacy and security in the wake of the Boston Marathon attacks. Panelists will include Alex Marthews (that’s me!), James O’Keefe of the Massachusetts Pirate Party, and Gregg Housh. RSVP here.
A variety of excellent commentary over the weekend reflected on the civil liberties implications of the Boston Marathon attacks.
Over at Salon, Falguni Sheth and Robert Prasch used a thought experiment (What would have been different if the bombing had happened in 1977, before mass electronic surveillance?) to argue that the vast expenditure on the surveillance state has not had the net effect of either preventing terrorism or making apprehending terrorists more efficient; so why are we doing it, again?
At Popehat, Clark dissects the unprecedented, expensive and ineffectual lockdown of Boston and the western suburbs, and observes that it is only after the lockdown ended and citizens were back outside their doors that the suspect was located.
Last, there’s an excellent analysis and discussion of the Fourth Amendment issues raised by house-to-house searches for a fugitive by (once again) Orin Kerr at the Volokh Conspiracy. Enjoy!
The Boston Marathon attacks have brought to the surface some of the best and the worst in Massachusetts.
On the one side, many news sources reported responsibly and refused to speculate too quickly and without foundation about who the bombers were or why they might have done what they did. There seems at this stage good evidence on which to base the arrest of Dzhokhar Tsarnaev. Above all, he was taken into custody quickly and alive, and Bostonians will be able to learn more about the motivations behind the attacks.
On the other side, panic, prejudice and the needs of the news cycle fueled an almost certainly unconstitutional search of an innocent Saudi marathoner’s house, an attack on a Muslim doctor in Malden, a call for genocide of Muslims, and a martial law-style lockdown of a vast area of metropolitan Boston.
This is the blog for the Campaign for Digital Fourth Amendment Rights, so unsurprisingly I’m going to focus on some of the Fourth Amendment issues arising out of the attacks; principally, the stop of the Saudi marathoner and the search of his apartment in Revere, and the constitutional issues raised when a householder refuses entry to law enforcement during house-to-house searches for a fugitive.
Follow me below the fold for the first of these!
Tom Brokaw, who in his long career has received every accolade a TV news journalist could receive, reacted on Monday to the Boston Marathon attack as follows:
Everyone has to understand tonight, however, beginning tomorrow morning early there’s going to be much tougher security considerations across the country. However exhausted we may be by them. We have to live with them and get along and go forward and not let them bring us to our knees.
Boston Police Commissioner Edward Davis’s less panicky reaction was much better:
We’ve done as much as we can. Our aim is not to turn this into a police state. We have to allow commerce to occur.
It’s easy to call for more security after what happened on Monday. It’s much harder to recognize that in truth, we were already doing all that we reasonably could to thwart attacks and more.
Headline updated [x2].
Today, by the finish line of the Boston Marathon, on the same city block as the church I go to, two bombs went off. I feel shocked and sad beyond belief.
My thoughts and prayers are with those who died or were hurt, with their families, and with all the people stranded in Boston on this cold night.
The former district attorney of Middlesex County, Gerry Leone, has taken to the airwaves to talk about how great the efforts have been before this attack to get a Joint Terrorism Task Force going, how well it has been working together, how smooth the state and federal collaboration has been, and how the appropriate response will be to increase random surveillance. Governor Patrick has also echoed his perspective, talking about the need for increased vigilance and random bag searches on the MBTA, which we have covered, and opposed, before.
It won’t surprise regular readers to know that my perspective on this is a little different and more skeptical. Even while massively and systematically abusing the Fourth Amendment, law enforcement wasn’t able to prevent this attack. The amount of data collected through warrantless electronic means by the centers Leone is talking about has been vast, and none of it, none of it, has thwarted a terrorist attack. Now, once again, they have failed us all.
Continue reading The Boston Marathon: Generalized Surveillance Fails To Thwart Attack
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.
Since our earlier analysis of the repellent new bill expanding electronic wiretapping was well-received, we’re starting an official series analyzing proposed Massachusetts legislation, called “Microscope Monday”.
In honor of the efforts to organize a new drone privacy group here in Massachusetts, this week’s bill is S. 1664 (Hedlund) / H. 1357 (Garry), “An act to regulate the use of unmanned aerial vehicles”.
State Senator Robert Hedlund is introducing this legislation in the Massachusetts Senate. Hedlund is a Republican and is the Assistant Minority Leader. His district covers Cohasset, Duxbury, Hingham, Hull, Marshfield, Norwell, Scituate and Weymouth. State Representative Colleen Garry is introducing the legislation in the Massachusetts House of Representatives. She is a Democrat, and her district covers Dracut and Tyngsborough.
This is not a long bill, but it’s a good one, and we at Digital Fourth commend the sponsors for introducing it. It’s currently in the Committee on the Judiciary (House) and the Committee on Transportation (Senate).
Continue reading Microscope Monday: Massachusetts’ new drone privacy bill
Transcript runs from around 11-20 minutes:
HEATHER MACK (host): We have some guests in the studio. We have Jamie from the Mass Pirates Party, whom we’ve had on before. We also have a new guest, Alex Marthews, from the Campaign for [Digital] Fourth Amendment Rights, also from the Pirate Party [sic], here to talk a little bit about Massachusetts and the new Coakley bill, “An Act Updating the Electronic Wiretapping Laws”, and generally about Fourth Amendment rights, particularly online. So tell us a little about that, about this new Coakley bill, and why we should be very afraid!
ALEX: The main thing to understand about this bill is that this is not a new thing. This is something that the Attorney-General’s office in Massachusetts and law enforcement in Massachusetts tries to do very regularly. Every two-year session, they try to what they call “update” the electronic wiretapping law. And, by “update”, they mean, “remove all reasonable constraints on” electronic wiretapping in Massachusetts. They’ve been trying to do this for a long time. Every time it comes back, it comes back a little different. Last session, it was all about financial crime. This time, because of the terrible tragedy in Newtown, it’s all about gun crime…
HEATHER: Oh, yep.
ALEX: …and keeping us safe from school shootings. It’s exactly the same ideas. So what they want is removal of all constraints on electronic wiretapping, but they’ll hang it on whatever the controversy of the day is, in order to get it done.
HEATHER: Absolutely.
ALEX: So what the law involves, what they’re proposing, is that it won’t just be that they can do electronic wiretapping when it’s in connection with organized crime or other very serious crimes. It could be in connection to things that are not really terribly serious. Simple marijuana possession is one. Manufacturing…
HEATHER: You know how much of a threat that is. [laughs]
ALEX: It’s an incredible threat, and anyone who possesses marijuana is a terrorist by definition.
HEATHER: [Laughs] We all know that.
ALEX: I know, I know.
HEATHER: It’s quite the terrorist bunker we’re operating out of here.
ALEX: I, for one, welcome our new attorney-general overlords, and I hope they’ll be doing something about that. The…if you manufacture arrowheads in the Commonwealth, then that will count as a weapon, and therefore make you subject to an electronic wiretapping warrant…
HEATHER: What is the point? What is the point? [Laughs]
ALEX: The point? Well, they like to say…
MIKE CANN [host]: Unlimited government power.
ALEX: Yeah, that is exactly it. It is not about reducing crime. Crime is about as low in the Commonwealth as it has ever been.
MIKE: Record lows.
ALEX: It’s lower than at any time since before 1968. And so, you gotta ask yourself, it’s gotta be about the power. It’s not the case – they try to argue that criminals have “got the upper hand” here in Massachusetts. Well first, if they have the upper hand, doesn’t that reflect poorly on them? Isn’t that their job?
JAMIE: But they don’t have the tools, is what they’ll say.
ALEX: Ach. But they do not need these tools!
HEATHER: Where’s the evidence of these far-reaching underground criminal syndicates that are…
MIKE: Well, now it’s about the guns. Now they’re saying that because of the school shootings and the gun violence…
HEATHER: Oh, because Adam Lanza needed the Internet…
ALEX: Adam Lanza basically didn’t use the Internet.
HEATHER, MIKE: No.
ALEX: He didn’t even have a Facebook profile. Electronic wiretapping would not have done a thing.
HEATHER: Exactly.
ALEX: But let me tell you one thing that is in this law that is very interesting that I’ve come across. They’ve introduced specific language trying to legalize electronic wiretaps in “switching stations”. Switching stations are phone company facilities.
MIKE: Wow.
ALEX: What they wanna do, it appears, is to be able to put a wiretap in your local AT&T facility which will then tap everything coming through that facility. We are a long way here from the protections of the Constitution.
HEATHER: Yeah, it’s true.
MIKE: And that means no oversight by a judge, right? You see, that’s what –
ALEX: Well –
MIKE: – a warrant is, having a judge having some reasoned suspicion to look through your papers, right?
ALEX: Well, let me be clear about this. The electronic wiretapping warrants would be reviewed by a judge. They’ve backed off from the stuff they were doing in previous sessions, where they were saying, no, no, it doesn’t really need to be done by a judge. But this is the first time they’ve introduced this idea of mass surveillance at phone company facilities, and I am very disturbed by this.
MIKE: And what rules would they have about how long they would keep those files, and the record-keeping, I mean…
ALEX: Well, I’m sure they will have rules…
MIKE: Right.
ALEX: but they’re not telling you what they are yet.
MIKE: I know.
JAMIE: Neither does the NSA, and they already do that.
MIKE: I know. Isn’t that a problem with a lot of this stuff, that there’s no…you know, to back into the TSA thing we’re doing today, it’s about the oversight. I mean, the fact that we had this protest, we found out more information on what they’re doing, because now they have to answer to the press, ’cause they’re being asked about it, and I think a lot of this activism is all about that – is to get them to give us information, ’cause we never – when the Feds do stuff, and now the states wanna be like the Feds, I mean, this is what it comes down to in a lot of respects, is these federal laws have been around for awhile now, and now states are doing civil practices, no warrant needed. They’re gonna be able to spy on us, on anyone they want. I mean, look at the marijuana movement that we – Heather and I have been, you know, championing and part of. You have medical marijuana in Massachusetts. How easy is it for them to claim that anyone involved in medical marijuana – supplying cannabis to patients – now I’m a money-launderer – they’re gonna trace all your phone calls, they’re gonna read all your emails, they’re gonna document everything about you with no warrant needed, in the State of Massachusetts. Is that what we want?
JAMIE: Well, it’s not what we want, but one of the things you have to remember of course is that the Attorney-General now, or even…
MIKE: Right now…
JAMIE: …can go, in different counties even, can go to Twitter, and say, “Give us all of your direct messages”, can go to Facebook and say, “Give us all this information”, and they don’t even – Facebook, or Google, or Twitter, doesn’t even need to tell you that all of this information is being gotten.
MIKE: Yeah, this is what’s so…you know, I’m glad you brought that up, Jamie, ’cause it seems like in so many of these cases, not only should we be saying no to the government, allowing them more of a reach, allowing them more power in this situation. We should be hassling them to help us and protect us, and come up with some laws to actually protect our privacy, protect our rights, from a lot of the – like, there’s no oversight on any of this, anywhere, and it’s just getting out of control.
JAMIE: But that makes their job harder, and they certainly don’t want their job to be harder.
MIKE: I know, it’s a Catch-22, isn’t it? [crosstalk]
ALEX: But we’ve gotta get…we’ve gotta develop the discussion. We gotta make it a more mature discussion. It can’t be simply the discussion that we’ve been having here in Massachusetts, where law enforcement comes up with something that will make their life easier, and we all go, oh, it makes life easier for law enforcement, therefore we must do it. No. The Fourth Amendment would not exist, and the Fifth and Sixth and Eighth Amendments would not exist, if all that mattered was making life easy for law enforcement. If…There are plenty of things that law enforcement wants to be able to do, there are plenty of things that would make life easier for them to do, that are not allowed because of the Constitution. And I’m sorry guys, it takes you longer, it costs you more money, but them’s the breaks. You’re in America, you’re not in North Korea, you have to put up with it.
HEATHER: [laughs] Not yet.
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…
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.
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!
