No Secret Laws: Ninth Circuit Weakens Secrecy Surrounding “National Security Letters”

Parts of the opinion were particularly pithy.
Parts of the opinion were particularly pithy.

When the USA FREEDOM Act passed on June 2, we criticized it as weak-tea reform that codified rather than changing surveillance agency practices. It’s still weak-tea reform that codified agency practices, but it has also now led to a new and valuable ruling on the infamous practice of “national security letters” (NSLs).

NSLs are issued by the FBI, mostly to companies, and ask them for information on their users. They originated in the late 1970s, but at that time the FBI couldn’t require compliance; enforcement mechanisms were added only in the late 1990s, after the Aldrich Ames spy scandal. The PATRIOT Act of 2001 loosened the rules, allowing, among other changes, NSLs to be issued without the specific approval of the FBI Director or Assistant Director. NSL use exploded from 8,500 in 2000 to 56,504 in 2004 and still runs at a rate of above 21,000 per year. NSL recipients are barred from discussing whether they have received them or what the NSL asks for. Companies aren’t even allowed under law to state that they have not received any NSLs. The argument the government has repeatedly made is that allowing companies to say this, would encourage terrorists to use those companies and not others; but this attitude also leaves the average privacy-conscious consumer in the same soup as the “terrorist.”

Until now, with a new ruling from the Ninth Circuit.

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Your Police Dept May Spy On You “For Situational Awareness”

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“Fusion centers” are intelligence-aggregation operations, created after the 9/11 Commission found that, had agencies (namely the FBI and CIA) engaged in more free and open sharing of information, the terrorist attacks could have been prevented. (The laws in 2001 permitted sharing that would have prevented the attacks; but the agencies were overly cautious about sharing data out of turf concerns.)

There are now at least 78 fusion centers dispersed throughout the United States. They claim to focus mostly on collecting intelligence of activity that may have a “nexus” to terrorism, but also criminal activity more broadly. But they operate in almost total darkness, with virtually no transparency. The little we do know suggests that fusion centers neither prevent terrorist acts nor respect First Amendment rights to free speech and free association.

The Intercept reported last week on the fusion centers’ targeting of Black Lives Matter protests, but there are also many other examples, going back to the fusion centers’ founding. The ACLU of Massachusetts found that the Boston Regional Intelligence Center — one of two fusion centers in the Bay State — was spying on antiwar groups; the Austin Regional Intelligence Center was caught monitoring peaceful animal rights activists protesting a circus (I reported on this for MuckRock); and a fusion center in Nebraska — the Nebraska Information Analysis Center — has a special network focusing on activists opposing the Keystone XL pipeline. They justify such activities by claiming that they are monitoring “for situational awareness”, and that this doesn’t constitute surveillance. In fact, that’s exactly what surveillance is; “For Your Situational Awareness” is military jargon for obtaining the intelligence needed to make appropriate battlefield decisions.

Given the lack of sunlight surrounding the everyday activities of the dozens of fusion centers throughout the country, we decided we want to find out more. Naturally, we filed a public records request. We wanted to find out where our other local fusion center — the Commonwealth Fusion Center run by the Massachusetts State Police — gets their intelligence; who has authorized access to their databases; whether any errors in their databases have been discovered; and what kind of information the CFC has on myself and Alex Marthews, the national chair of Restore the Fourth.

Here is what we found:

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Mr. Anderson’s Rough Guide to Anonymous Protest

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Note: These methods are not foolproof. Even if you take every precaution described below, you should still assume that you are being watched, tracked, and recorded. Act accordingly.

I. Leave your cellphone at home. It is safe to assume that “Stingrays” (also known as “cell site simulators” or “IMSI catchers”) are being used at every #BlackLivesMatter protest around the country. These devices trick your phone into connecting to them by simulating a cell tower, allowing law enforcement to intercept your text messages and phone calls as well as your location information and International Mobile Subscriber Identity (your phone’s unique identifier). They are small enough to be mounted on vehicles and can even be placed on airplanes and helicopters to track protesters from the sky. It is probably best to leave your cellphone at home. If this is impractical for you, you might want to consider using secure messaging apps such as Wickr or TextSecure. Note that as long as your phone is turned on, your location information and IMSI information can still be intercepted.

II. Avoid exposing your face to cameras. Police love to video record protesters exercising their First Amendment rights. Unless you want to run the risk of having images of your face uploaded to a network of shadowy databases to be matched with driver’s license photographs and other government records for tracking purposes, it is wise to consider covering up your face or applying face paint in a manner that prevents facial recognition software from identifying you. Some believe covering your face is cowardly, but if the choice is between being indexed in a virtually boundless, unaccountable surveillance system and the right to protest anonymously without retribution, I’ll take the latter any day.

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III. Avoid advertising your location or other personal information on social media. Fusion centers and police departments like to track people using social media geolocation software to track social media posts in real-time. This is likely one of the tools used by the Massachusetts fusion centers for tracking #BlackLivesMatter protesters in Boston. You may want to avoid using social media altogether while at a protest; but if you feel the need, it might be a good idea to create a fake account to make it a little more difficult for spies to monitor you.

IV. Use PGP for encrypted emails. Encryption is your friend. “PGP” stands for “Pretty Good Privacy”, and it holds true to its name. Think of PGP as an airtight container that keeps your emails away from the eyes of anyone except the intended recipient(s). Sure, it can be a little tough to set up, but once you have it installed, it’s actually very easy to use.

Here is a guide to installing PGP for Mac OS X.
Here is a guide to installing PGP for Windows and GNU/Linux.

V. Use Tor and/or a VPN. Tor is free software that provides anonymity by routing your Internet activity through a series of other users running Tor relays. The goal is to prevent eavesdroppers from seeing the web pages you visit by bouncing your connection around the network, making it appear as if you are accessing the Internet from a completely random location. Similarly, Virtual Private Networks route your connection through a server of your choice, making it appear as if you are connecting to the Internet from France, Canada, Sweden, or pretty much anywhere. Unlike Tor, good VPNs are not free, but they can be as inexpensive as $3.33 per month.

Should We Police Threats On Social Media?

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The United States has a well-developed jurisprudence for dealing with people who make threats. The default presumption, thanks to the First Amendment, is that any speech, even speech that is frightening, prejudiced or factually wrong, is legal. Even a generic desire for the President to die has First Amendment protection. The key precedents here are Watts v. United States and Brandenburg v. Ohio, both from 1969. In Watts, an 18-year-old remarked during a rally against the draft that:

“They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”

The ruling suggested that this was protected as merely ‘a kind of very crude offensive method of stating a political opposition to the President’, of a kind still very familiar to us today. Those prosecuted for threatening the President over the last few years have typically had additional evidence of actual conspiracy to commit murder.

In Brandenburg, a KKK leader’s advocacy of ethnic violence was ruled to be protected by the First Amendment, because it was not “directed to inciting” or “likely to incite, imminent lawless action.” There must be some specificity as to the time that the lawless action is to occur; it cannot simply be a generalized articulation of the need for violence at some future time. It must be, in other words, a so-called “true threat.”

These rulings have stood essentially unmodified for nearly half a century. They are also a lot more protective of threatening speech than most people, including surveillance state employees, casually assume. One result of that assumption is that surveillance agencies pro-actively monitor social media, and open investigations on the basis of First Amendment-protected threats they encounter, when the constitutionality of doing so is at best highly suspect.

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It Takes A Massive Surveillance Apparatus To Hold Us Back: Fusion Centers, Ferguson and the Deep State

Dime-Fasces

Here’s a question: How much of a national security threat are people protesting the non-indictment of Ferguson police officer Darren Wilson for killing Michael Brown?

If you answered, There’s no national security threat; they’re exercising their First Amendment rights, which should be celebrated, then you’re obviously a pre-9/11-American, which is enough to get you disinvited from the major TV propaganda shows.

Local news media reported on the Black Lives Matter protest in Boston, and noted, without really thinking about it, that “the state police Commonwealth Fusion Center monitored social media, which provided “critical intelligence about protesters’ plans to try to disrupt traffic on state highways.” It didn’t really register because journalists are mostly not watching fusion centers like we are, and aren’t seeing them come up again and again and again and again, lurking at the edges of stories about free speech and national security, and policing the boundaries of what is acceptable to say.

Think, then, of fusion centers as state-based NSAs overseen loosely by the Department of Homeland Security. Set up after 9/11 to provide “joined-up intelligence” and thwart terrorist attacks, they quickly found that there just wasn’t enough terrorism of the kind not ginned up by government informants themselves to sustain 88 separate local antiterrorism centers in addition to the NSA, FBI and CIA. So they expanded their definition of terrorism to cover many other things, which in Massachusetts have included harassing peaceful activists and elected officials while missing actual terrorist plots, and now, for lack of anything better to do with their tax dollars, vetting licenseholders for marijuana dispensaries and fostering anonymous threat reporting in public schools.

We have advocated against fusion centers for a long time. Last week, we received the results of a FOIA request to Massachusetts’ Commonwealth Fusion Center that throws more light on the kind of information they hold, and the kind of society that is being constructed without our consent.

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State Report Tells Schoolkids: Inform, Conform, and Trust the Police

"La Cucaracha", August 26, 2013, by Lalo Alcaraz
“La Cucaracha”, August 26, 2013, by Lalo Alcaraz

Following on from the Sandy Hook school shooting, the “Massachusetts Task Force on School Safety and Security” released a report in July. As you’d expect from a report written with plenty of police input and none from the civil liberties community, it recommends changes that are highly intrusive, probably ineffective, definitely expensive, and likely to benefit police more than they benefit students.

Of course, that’s not how it’s being reported. Local papers, including my own, are portentously explaining how this is all “for the kids” and will “keep them safe” (I’d link to the Belmont Citizen-Herald’s exhaustive coverage, but it’s not up yet).

The most important thing to understand regarding school shootings is that school districts can’t prevent them. I wish they could, but they can’t. School shootings happen far too much in the US, largely because we spend too little on mental health services and allow, as a matter of constitutional principle, broad access to guns. School shootings also tend to happen more in rural and suburban districts where the schools are pretty much the only place that will grab the attention of the whole community.

Nothing school districts can do will change these things. However, in fear that they ought to be doing something, it’s very possible for school districts to misdirect funds better spent on education, and impose inappropriate systems of surveillance and control.

Let’s look anew, with a critical eye, at what’s being suggested.

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Spying is Censorship

[We welcome our newest contributor, Gregg Housh, an activist focused on internet freedoms, censorship, over-prosecution and Anonymous. This article is cross-posted at 0v.org. – Alex.]

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It was February 6th, 2011 that I had to give some bad news to my wife. Her pseudonym (one she calls “as subtle as John Zeus”) was on the list of supposed “lieutenants of Anonymous” that Aaron Barr of HB Gary Federal had compiled. Barr’s intention was to identify the people involved in various projects on the AnonOps IRC network by connecting them to real social network profiles, and then to somehow parlay this data into brownie points with the FBI. And there she was, in the cross hairs.

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Racial profiling, Muslim surveillance, and the NYPD

NYPDOn Tuesday, April 15 the New York City Police Department (NYPD) announced it was disbanding a controversial unit that had been spying on Muslims since its inception in 2003. The NYPD’s “Demographics Unit” specifically gathered intelligence on Muslims living in New York City, New Jersey, and even as far away as Philadelphia. It sent plain clothed detectives to cafes, restaurants, and other community centers frequented by Muslims with the stated purpose of identifying potential centers of terrorist activity. Detectives were told to speak with the employees at such establishments about political issues in attempt to identify anti American sentiment. The NYPD also sent informants to Muslim student groups on various college campuses. Despite the wide breadth of surveillance, even the NYPD acknowledged that the program has failed to create a single lead.

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