Tag: fourth amendment

DA Whitewashes Killing of Lynn Resident By Armed Intruders

After months of pressure, Essex County District Attorney Jonathan W. Blodgett has completed his investigation into the Sept. 5, 2013 killing of Army Specialist Denis Reynoso at his home in Lynn. Yesterday, he released his finding that police were justified in killing him. His findings could be summed up as, “Sure, he hadn’t committed any crime, and sure, the police came into his home without a warrant, but he was acting all cray-cray, so we’re good.”

DA Blodgett’s elaborate work of speculative fiction provides several specific reasons making it justifiable for armed intruders to have killed Spc. Reynoso in his home.

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Smart Meters On Your Home: Where Does The Data Go?

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Patricia Burke of local activist group Halt MA Smart Meters brings to our attention an effort by the Massachusetts Department of Public Utilities to study how to achieve universal adoption of smart meters on residential homes in Massachusetts. This implicates the Fourth Amendment because electricity usage within a home, if gathered many times over a 24-hour period and transmitted to a government agency, may constitute a warrantless search of that home to which the home’s resident has not consented. The IT Law Wiki provides an excellent overview of the constitutional issues here.

It is unclear from the documents provided by DPU whether any plan actually exists for what to do with the data gathered by utility companies such as National Grid. It is possible that the data would remain with the utilities, and would be used to implement peak pricing that in turn would both increase profits and reduce stress on the grid at peak times. However, as we have seen with the NSA scandals, it is very easy for government agencies to get court orders requesting the ongoing release of such records by utilities to law enforcement. The records would, under the “third-party doctrine,” probably be considered to be the property of the utility company, and therefore law enforcement would typically not seek either the permission of the resident or a duly executed warrant from a judge before accessing this data.

Long-time readers of this blog will know where we’re going with this. Yes, it’s fusion centers.

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Boston PD Suspends ALPR Program After Massive Privacy Violation

Just before Christmas, Muckrock and the ACLU of Massachusetts brought out excellent articles based on a full year of Muckrock’s investigative reporting into Boston PD’s use of automated license plate recognition technology.

ALPR systems automatically photograph and store in a police database the license plates of any car an ALPR-equipped police vehicle passes. The car may be parked or driving. It could be on the Pike, in a driveway, or anywhere a camera can reach. The question was, what does the Boston PD do with the mountain of data once it has it?

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Quit Throwing 9/11 In Our Faces

This letter makes me sick at heart. The very people who were supposed to defend our country, who even now parade onto talk shows and give interviews about the NSA scandal like people of authority, stand revealed as corrupt and depraved.

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They failed to prevent 9/11. Perhaps even then the volume of data was so great that they simply didn’t notice, or were unable to integrate, the information they had. But they should have been able to learn from their failure, and instead, they covered it up, and their cover-ups and their lies have cost many thousands more lives. Michael Hayden, Dick Cheney, Robert Mueller, and all the people who have made it so easy for the NSA to lie to us for so long, shame on all of you.

Let me explain. No, there is too much. Let me sum up.

The NSA had collected critical information (relating to calls made by AA-77 hijacker Khalid al-Mihdhar from the US to Yemen) that could have thwarted 9/11, but decided for unknown reasons not to share that information beyond the NSA. They then covered it up, instead of admitting it so that we could learn from it and improve what we were doing.

Before 9/11, the NSA had developed a surveillance program called THINTHREAD, which would have integrated intelligence findings while automatically encrypting all US persons’ communications, and which would have required a court order based on probable cause for their decryption. Gen. Michael Hayden, the same Hayden whose understanding of the Fourth Amendment was so poor that he insisted that it doesn’t contain the words “probable cause,” scotched THINTHREAD in favor of unencrypted bulk surveillance of Americans (STELLARWIND), and a boondoggle called TRAILBLAZER that previewed our occupation of Iraq by failing massively while massively enriching Hayden’s contractor friends.

Now, thanks to their addiction to mass collection, the NSA has admitted that it is indeed drowning in data it cannot process. Its apologists scurry round spreading fear about reforms that would actually make their work more restrained and effective, and in a last, desperate throw of the dice, they are invoking the shadow of 9/11 – the same 9/11 that their bulk surveillance failed to thwart last time around. These days, the only terrorist attacks they seem capable of thwarting are the ones they gin up in advance, but no matter: making the NSA conform to the Constitution will not KEEP US SAFE.

You know that on this blog I tend not to use the swears. This time, I do use the swears:

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The Wall Begins To Crack: Fourth Amendment Challenge to Bulk Metadata Spying Program “Likely to Succeed on the Merits”

Ever since the 2005 revelations of Mark Klein (yes, that long ago) that the NSA was intercepting phone traffic on a mass basis, successive presidential administrations have employed every possible species of legal trickery to prevent a constitutional challenge to the program on the merits.

The key question is, Why? Surely, if either Bush or Obama believed their rhetoric that what they’re doing is Constitutional, they would welcome the courts’ review, which would surely result in a thumping endorsement of bulk metadata spying, probably based on the 1979 Supreme Court case Smith v. Maryland, which ruled the collection of much more limited metadata to be constitutional.

The actions of both administrations suggest otherwise. Their problem was always that the plain text of the Fourth Amendment didn’t seem to support their position. Shall we take a look at it again? I never get tired of it.

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 Warrant shall issue, except upon probable cause, 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.

In order to be “reasonable”, a “search” must have a warrant, which is supported by “probable cause”, and which “particularly describes” the “place” to be searched.

So let’s say, then, just hypothetically, that you set up a massive phone data interception program without bothering with a warrant at all, and got Congress to retroactively immunize anyone participating in it from prosecution (hey there, W!), or that your response to the existence of this program when you got into office was to get a secret court to issue a secret ruling approving a warrant allowing the “seizure” of all phone metadata for all calls in the United States (howdy, BarackO!). How would a reasonable court interpret the requirements for probable cause, or for particularly describing the “persons or things” to be seized, for a program like that?

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MA-05: In their only debate, Clark and Addivinola spar over surveillance

Democratic nominee Katherine Clark and Republican nominee Frank Addivinola spent a substantial portion of their only televised debate sparring over privacy and surveillance. It has been great to see these issues playing such an important role in a Congressional campaign. However, there have been two less good outcomes, independent of who wins. First, it’s still not clear that either the Republican or the Democratic candidate will be skeptical enough about the claims of law enforcement and the intelligence agencies. Second, given that that’s so, it is unfortunate that the debate excluded the voices of the two independent candidates, Jim Aulenti and Jim Hall.

Here’s a transcript of the relevant section of the NECN debate, which is no longer available online. Our comments and fact-checking are in italics, and any significant commitments made by the candidates are in bold.

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MA-05: Independent candidates Valenti, Hall excluded from NECN debate

Jim Aulenti (Independent)
Jim Aulenti (Independent)
Jim Hall (Justice, Peace, Security)
Jim Hall (Justice, Peace, Security)

It’s hard out there for third-party and independent candidates. In a more open political system, they would be able to compete on a level playing field with the Democratic and Republican nominees. In practice, there are high campaign finance and procedural hurdles before such candidates even get on the ballot, and even if they clear those high hurdles, they still find themselves treated as somehow less legitimate than the Democrats or Republicans. Now, Jim Braude‘s NECN show “Broadside” is hosting a candidates’ debate tomorrow night, and Braude has declared that only two candidates are welcome, saying:

The party candidates went through the primary process and were chosen by the electorate, and having more people would not do justice to the cause or those party candidates.

What, they couldn’t find an extra podium? I seem to recall that the 2012 Republican primary had almost as many candidates as Jesus had disciples, and they still figured it out. Would having four candidates break the cameras over at NECN?

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Bring Us Back Food, Or Be Food Yourself: The FBI and Ayyub Abdul-Alim

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The Deep State requires terrorists as its food. Only by claiming, falsely, to thwart terrorist attacks before they happen, can the three-letter agencies justify their vast increases in budget, manpower and technology over the last ten years. The problem is that there’s just not enough terrorism to go around. On the amount of actual terrorism we have – which, excluding school shootings, has killed about thirty Americans in the last twelve years – you simply can’t justify NSA mass surveillance, 78 state-funded fusion centers, the massive and unnecessary DHS, or the ruinously expensive foreign adventures that have resulted in over 100,000 deaths and trillions of wasted dollars. If you can’t find enough terrorists, the obvious recourse – obvious, that is, if you have no decency and no actual love for justice – is to make your own terrorists. In Oregon and California and Ohio and New York and Massachusetts, the FBI has offered Muslims the same, terrible deal: Be our spy with your fellow Muslims, or we will ruin your life.

I have not come to this analysis lightly. It is a terrible observation to make about people who are supposed to protect us. But the bureaucratic imperative at work here is too powerful. Bring back a terrorist, and your career is made. Fail to find any, and people will start asking questions about why you need all those tax dollars to do your work.

Which brings us to the sad story of Amherst-born Springfield resident Ayyub Abdul-Alim – building manager, owner of the “Nature’s Garden” store, and the creator of “Connections Transportation”, which provided families with free commuter services to and from local prisons to visit their loved ones.

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Sauce for the Gander: Boston Police Officers Apparently Don’t Like Being “Followed All Over The Place”

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From the ACLU of Massachusetts:

Boston Police Department bosses want to install GPS monitoring devices in every patrol car, to enable dispatch to more efficiently process 911 calls. But police officers and their union are outraged, saying that the ubiquitous tracking is too invasive of their personal privacy. Tracking the location of officers as they go about their days would reveal incredibly detailed information about their lives, the officers say.

It must be just awful to go about your daily life looking over your shoulder, conscious that your every movement and activity is being recorded and could be used against you. Oh, wait. That’s what the entire American public is already dealing with, in this age of mass electronic surveillance. But the way the police union is hissing’n’flapping about it, it’s almost as if there was something wrong with that. Don’t they know that you have nothing to fear, if you have nothing to hide?

The ACLU’s tack is that if the police don’t like the feeling of being followed, they shouldn’t be pushing for technologies like mass tracking of license plates or cellphone locations. That’s fair enough, but there’s a larger point here also.

Police officers are public employees, and they would be monitored during, and only during, the performance of their duties as public officials employees. We require elected officials to disclose their votes publicly, and require secrecy for private individuals at the ballot box, even though that’s inconsistent, because public disclosure of how public business is conducted is vital to maintain democratic accountability. In the same way, close monitoring of law enforcement is vital, to ensure that police don’t abuse the vast and special powers society gives them. When you put cameras on cops, complaints about police misbehavior and brutality drop like a stone. We have the right – affirmed by the federal courts in the First Circuit and across America – to record the police in the commission of their duties. The Fourth Amendment constrains the actions of the government, not the actions of members of the general public.

The Boston police may not like it – last week’s PINAC case shows that they’re willing even to threaten people with felonies to avoid public embarrassment over misconduct – but they are not entitled to a high level of privacy protection in their capacity as police officers. That distinction matters. Doxxing police officers’ personal names and phone numbers and addresses is not cool. But recording them, having them record themselves, and encouraging people to call their office numbers and hold them accountable to the public, is vitally important in order to preserve freedom for the rest of us.

Justice for Army Spc. Denis Reynoso

We like to think that we’re safe in our homes, and that if we need the police, we can call on them to help protect us. That’s what we tell our children – I have two – and I’d like to think it was more consistently the truth than it is.

Today’s story comes from Lynn, MA, which in September saw an Army reservist shot to death in his home by police in front of his five-year-old son.

 

Army Spc. Denis Reynoso
Army Spc. Denis Reynoso

Police were called after Spc. Reynoso yelled at a man, who then drove away. Two police officers arrived at the Reynoso home on Newcastle Street in the King’s Lynne housing complex, and they appear to have entered the home without either a warrant or the permission of the residents, which would clearly violate the Fourth Amendment. The police version of events is that during the ensuing argument, Spc. Reynoso lunged for one of the police officers’ weapon, and fearing for their lives, the police fatally shot him. The family point out that there is no way to confirm that Spc. Reynoso did lunge for an officer’s gun, and no public information as to why he might do so; that he was unarmed, that they shot him anyway, and that they then searched the house for any drugs or contraband that would provide justification for their actions, without a warrant and without finding anything.

The excuse used by the police – that he “lunged” for the gun – is inherently unprovable. It’s such a hoary old chestnut when it comes to defending the indefensible that it has been immortalized in song. Perhaps that’s why they thought of it.

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