Digital Fourth (Restore The Fourth – Boston)
The Massachusetts campaign to protect digital data from warrantless government surveillance
The Intercept’s publication of the criteria for the terrorism watchlists throws some light at least on what the government tells itself a terrorist is. This is a matter of keen interest to many of us, since a close reading of the following text tells you a lot about the values and priorities of our new-minted surveillance state overlords.
Not to go all mise en abyme about it, but this definition is, well, abysmal. Let’s take it a step at a time.
The Intercept has a careful profile of five American Muslim leaders who have been targeted by the NSA. It makes clear that absolutely nothing in the public record suggests that these five men are suspected of or are guilty of any crime, or are “agents of a foreign power”. Over at Lawfare, they’re busy arguing that we aren’t allowed to see the secret evidence contained in the FISA warrant applications against these men, and that therefore we can’t tell that they are innocent. Those of us who are more familiar with bedrock legal principles realize that actually, if you can’t cite any actual evidence that someone is guilty, that’s what being innocent means.
Asim Ghafoor, a civil rights lawyer who has defended terrorism suspects, is on the list; but other, non-Muslim attorneys who defended the same cases are not on it. It seems clear that being Muslim has something to do with being on the list. NSA flacks have argued defiantly that the five were not targeted “solely” on the basis of First Amendment-protected activities, but that means almost nothing. They could have been targeted on the basis of their dark skin in addition to their religion, and what the NSA is claiming would technically be true, but that wouldn’t make it right. The article also shows the NSA demonstrating its respect for one of the world’s biggest religions by using for its sample suspect profile the name “Mohammed Raghead.”
Those who are calling this a new form of red-baiting have a point. But let’s dig into that comparison more closely. What’s wrong with both red-baiting and Muslim-baiting is that, in an attempt to counter an external threat, the intelligence agencies have become unmoored from any fidelity to the truth, the Constitution, or to norms of civilian democratic control. “Preventing the next 9/11” is the watchword, and in its name any abuse becomes justified.
But there is also an important way in which this persecution of Muslims is not like what has gone before. The red-baiters, however misguidedly, were trying to combat a meaningful external threat. Stalin and Mao were brutal mass-murdering dictators backed by nuclear weapons, enormous natural resources and hundreds of millions of people. By comparison, the territories controlled by Muslim extremists today are small, remote and poor, able to pose almost no threat to our domestic peace and prosperity. It’s a measure of how much safer the world is now than it was then, that we can afford to pay any attention to this murderous fringe movement. It is utterly absurd to use that murderous fringe movement to waste trillions in taxes and mount an all-out assault on the Bill of Rights.
The Atlantic picks up on a story from the Center for Investigative Reporting that in 2012, the LA County Sheriff’s Department secretly tested a civilian surveillance aircraft by flying it over a town in their jurisdiction and taking high-resolution footage of everything visibly happening there, over a period of up to six hours (highlights are ours):
If it’s adopted, Americans can be policed like Iraqis and Afghanis under occupation – and at bargain prices:
McNutt, who holds a doctorate in rapid product development, helped build wide-area surveillance to hunt down bombing suspects in Iraq and Afghanistan. He decided that clusters of high-powered surveillance cameras attached to the belly of small civilian aircraft could be a game-changer in U.S. law enforcement.
“Our whole system costs less than the price of a single police helicopter and costs less for an hour to operate than a police helicopter,” McNutt said. “But at the same time, it watches 10,000 times the area that a police helicopter could watch.”
A sergeant in the L.A. County Sheriff’s office compared the technology to Big Brother, which didn’t stop him from deploying it over a string of necklace snatchings.
The town they chose? Compton. Yes, that Compton, but it’s not the same Compton as yesteryear. Its boosters are now touting it as the hip, countercultural Brooklyn of the LA area. It has an inspirational new Millennial mayor, Aja Brown, who has garnered comparisons to Cory Booker. Its crime rate is down sixty percent, and it’s now majority-Latino. But it still has a median household income of $42,335, and still, even after all its struggles, somehow found itself the first city selected for mass surveillance, over, say, majority-white, tony Santa Clarita (median household income $91,450). Well, blow me down with a post-racial colorblind goddamn feather.
In related news, the NSA, under its MYSTIC and RETRO programs, was revealed last month to have been collecting the contents of the phone communications of an entire country (unnamed, but probably Iraq).
These two stories are essentially the same. Developments in technology allow law enforcement surveillance to sweep past legal constraints intended for an era where collecting, storing and analyzing so much data was inconceivable. In luckless Compton, the Supreme Court’s 1989 decision in Florida v. Riley renders “wide area surveillance” presumptively constitutional. In luckless Iraq, the expansive powers of Executive Order 12333 and the FISA Amendments Act impose effectively no constraints on the NSA in intercepting the communications of foreign nations.
May I draw your attention to three salient points?
Continue reading High Over Compton: “Wide Area Surveillance” Surveils Entire Town
[Guest post from Nancy Murray, an advocate for Palestinian rights for over 25 years. Crossposted at Mondoweiss. Nancy has researched and written about surveillance extensively for the ACLU of Massachusetts and its privacysos.org website. While this is not a blog that covers the Israeli-Palestinian conflict, it is shocking that the NSA, as a matter of policy, shares unconstitutionally collected and unminimized intelligence on US persons with agents of any foreign government.]
If the Israeli government has indeed ordered its spies “to dig up intelligence” showing links between the supporters of BDS and “terrorists and enemy states” as reported in the February 11, 2014 London Times, it may find that it already has as much information as it needs in its data banks.
As described in the UK Guardian by Glenn Greenwald, Laura Poitras and Ewen MacAskill, a 2008 document obtained by whistleblower Edward Snowden states that “one of the NSA’s biggest threats is actually from friendly intelligence services, like Israel. There are parameters on what NSA shares with them, but the exchange is so robust, we sometimes share more than we intended.”
Continue reading GUEST POST: Time to reveal the Israeli role in the US surveillance machine
The main substantive reform of the NSA proposed in Congress, the “USA FREEDOM Act”, would ban bulk surveillance, require a Special Advocate to plead the case against surveillance at the Foreign Intelligence Surveillance Court, and force the publication of secret laws governing how surveillance is conducted.
At Digital Fourth, we have campaigned ever since the law was introduced to get 100% of Massachusetts’ federal legislators – Representatives and Senators – to cosponsor this legislation. Last week, with the cosponsorship of Rep. Richard Neal in Western Massachusetts, we achieved our goal, becoming the only state (other than Alaska and Montana) where that is true.
Right now, the USA FREEDOM Act has 141 cosponsors in the House out of 218 needed, and 21 cosponsors in the Senate. Its cosponsors are almost equally divided between Democrats and Republicans, sending a message that no matter who occupies the White House, people of all political beliefs have a stake in preventing mass surveillance.
Continue reading Digital Fourth Secures 100% Support for NSA Reform By MA’s US Reps and Senators
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.
+
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:
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?
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.
Continue reading MA-05: In their only debate, Clark and Addivinola spar over surveillance
This Saturday, DC saw something it had never seen before.
A city that treats the superficial hatreds of party politics as its lifeblood, saw thousands of people from across the political spectrum gather to denounce NSA mass spying. We heard, and roared approval for, the words of feminist Naomi Wolf, Dennis Kucinich (Democrat), Justin Amash (Republican), and Gary Johnson (Libertarian). Kymone Freeman spoke movingly about the impact of surveillance on minority communities and the civil rights movement. Whistleblowers Thomas Drake and Russell Tice were there, and Edward Snowden sent a message to be read by leading whistleblower-protecting attorney Jesselynn Radack. Tea Party people up from Richmond, VA, proudly put on Code Pink stickers labeled “Make Out Not War”. The press reported wonderingly that it was not put together “by any of the “usual” well-connected DC organizers.” I should know: I’m proud to say that, in a small way, I was one of them, and this was the first time most of us had done anything like this.
That wasn’t all. Here in Boston, activist Joan Livingston put together a solidarity rally at Park Street Station:
and ACLU organizer Raquel Ronzone arranged for the rally to livestream at the Digital Media Conference in Cambridge.
If you want updates on the StopWatchingUs campaign going forward, text “PRIVACY” to 877877. Stay tuned for the next stage of the campaign, which will be to pass the “USA FREEDOM Act.” Personally, just to hammer home the point, I’d have preferred the “USA FREEDOM Fourth Amendment Restoration – Objective: Undermining Tyranny Act of 2013”, because I too can do acronyms, but such frivolity is apparently frowned upon in the legislature that gave us the Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001 in the first place.
UPDATE: Oh yeah, I nearly forgot. I’m the tall guy to the left of Rep. Amash!
In the states and the cities of New England, unparalleled, cross-partisan, cross-racial coalitions are forming, bringing together libertarians, Tea Party people, technologists, peace and environmental activists, Occupy folks, veterans’ groups, people of color, religious groups and progressive Democrats. The nation may never have seen people of such disparate views united under one banner.
Three examples from just this last month:
Continue reading New England mobilizes against the surveillance state: Updates from ME, NH and RI