Digital Fourth (Restore The Fourth – Boston)
The Massachusetts campaign to protect digital data from warrantless government surveillance
Are you a lawmaker? Maybe, a lawmaker with aspirations for higher office? Maybe you’d like to be President someday? Do you think the NSA spying programs are just peachy because Terrorism? Well, why don’t you just punch yourself in the face right now?
Let’s you and I have a little talk about those aspirations you have, with close reference to this week’s revelations from NSA whistleblower Russ Tice, shall we?
Continue reading NSA To Lawmakers: We Own You And Your Secrets
After I posted an article giving Digital Fourth’s view on the wiretapping law on Blue Mass Group, Massachusetts’ largest Democratic blog, we got some attention from Mr. Brad Puffer, Director of Communications for the Mass Attorney General’s office. They seem put out. Maybe they didn’t like the lede, “Coakley Channeling the NSA?” 🙂
The above blog post includes inaccuracies that are highly misleading about the changes our office has proposed to the currently outdated Massachusetts wiretap law. Updating the wiretap law is a critical tool to combatting gang violence, gun violence, human trafficking, and many other violent crimes that undermine public safety in our communities. And equally important to what it does, is what it does not do. One thing it does not do is alter in any way the many safeguards already put in place under the current wiretap statute to protect against abuse.
I will explain some of the benefits of this new law further below, but first want to correct some of the inaccuracies in this blog post:
1) The proposed update to the wiretap law does not legalize mass interception of telecommunication switching stations. Each wiretap must be applied for and authorized individually by a Superior Court judge.
2) Marijuana possession is not eligible for a wiretap. Only serious designated felonies in the statute would be covered. According to federal law, only crimes with a minimum one year prison sentence are eligible for a wiretap.The current wiretap law has not been updated since 1968, back when criminal activity and technology was vastly different. In 1968, the law was focused on “organized crime.” A 2011 SJC decision that upheld the suppression of statements obtained by a wire interception during a murder investigation stated very clearly that the investigation and prosecution of some of today’s most destructive crimes, including street violence, are hampered by this antiquated statute. The SJC urged an update to the law.
The updates we seek are common-sense and concise, including:
• Bringing the law up to date with technology: The legislation acknowledges that today communication is largely electronic and wireless. By updating the definition of “wire communication,” the bill makes explicit the law’s application to cellular and text technology without tailoring the definition so narrowly as to foreclose future technological developments.
• Removing the organized crime requirement: Currently, criminal activity that is the subject of a wiretap must have a connection to organized crime. The majority of street violence and gun crimes today, though often tied to looser organizations, nevertheless lack the traditional hallmarks of organized crime.
• Including additional violent or egregious crimes as designated offenses: Prior to seeking a warrant for a wiretap, law enforcement must establish probable cause that a “designated offense,” as defined in the statute, has been committed. The current list of designated offenses does not include some of the most violent and egregious crimes that law enforcement must investigate and prosecute today—and that the Legislature has correctly passed since the law’s inception— including human trafficking; firearms offenses; and child pornography offenses.The law also maintains extensive safeguards that already exist under current law. First, any wiretap must be requested and signed by either the elected Attorney General or District Attorney and then authorized by a Superior Court judge. The judge can only authorize a wiretap for serious felonies where there is probable cause that a designated offense has been committed, and after all other investigative techniques have been exhausted or will not be successful. There are additional safeguards that ensure that only the conversations with direct correlation to the alleged crime are recorded and then permissible in any legal action.
For all of these reasons, these updates are supported by district attorneys, police, mayors, and many other community leaders who know that the only way that we will be able to better keep our communities safe is to give our investigators effective tools, with proper safeguards, to take the most dangerous criminals off the streets.
You can find more information about the proposed bill here:
http://www.mass.gov/ago/news-and-updates/press-releases/2013/2013-01-28-wiretap-legislation.htmlSincerely,
Brad Puffer
Director of Communications
Office of Massachusetts Attorney General Martha Coakley
Did we hit a nerve here?
Let’s take the assertions in the Puffer piece one by one.
As if yesterday’s explosive revelations about NSA’s ongoing interception of all of Americans’ phone calls weren’t enough, yesterday evening another top secret document was released (see here for screenshots), documenting for the first time that NSA had persuaded every major tech company with the exception (so far) of Twitter to allow them real-time access to their central data servers, and therefore to the private content of communications of the vast majority of Americans. It started in 2007 with Microsoft (surprise, surprise), and most recently enlisted Apple in 2012.
(Oh, it includes AOL too? Well, that’s thoughtful. Maybe they wanted to address the criticism that they weren’t focusing enough on the threat from the remote backwoods?)
So let’s take you through the PRISM scandal, and why it means that you should really shift your communications and company documents to being hosted outside of the US.
Glenn Greenwald in the British newspaper The Guardian has published a leaked Top Secret order dating from the day of the Boston Marathon bombings providing evidence of intrusive cellphone surveillance dating from at least 2007. In the order, the NSA directs Verizon to send to it daily the metadata on ALL CELLPHONE CALLS – the calling number, the receiving number, and the location and duration of each call.
Gone now are the pathetic pretences that the NSA “doesn’t target Americans”, or that warrantless wiretapping is just about foreign terrorists. Nobody can claim ignorance any longer. The NSA is spying on all of us, and has careened far out of the control of the Constitution.
The text of 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.
Why was this important to the Founders? Because royal administrations in the early and mid-18th century would take out “writs of assistance” to suppress dissent. Writs of assistance imposed no limitations on law enforcement, and could cover a whole town. Colonial agents could ransack everyone’s houses, looking for evidence of any lawbreaking. Writs of assistance also effectively suppressed the political activity of people who had done nothing wrong. So when the time came to write state constitutions and then the federal constitution, the Founders were very anxious to make sure that nothing like this kind of general warrant would ever be allowed in the United States.
Today’s news proved that they failed. The Writ of Assistance has returned, and the airwaves are full of fearful authoritarians justifying it. Do we really love our chains that much?
The NSA order, justified under Section 215 of the Patriot Act, doesn’t even pretend to limit the order’s scope. There’s no particular target. There’s no limitation of place. Calls between two grandmothers in Peoria are covered just as much as calls between members of suspected terrorist cells. The NSA doesn’t care. They want everything, so that they can criminalize us via algorithm.
Do you think this order is the only one? Sucker. This is merely the tip of the iceberg. The NSA has prepared an enormous data center in Utah to hold precisely this kind of data on your communications. Why should we suppose that they limited these orders to Verizon Wireless in particular?
Stand up! Call your senators and representatives, and get involved with Digital Fourth. If not now, when?
One of the curious things about digitization is that it allows data to be circulated and shared almost effortlessly. New, cheap ways of sharing and storing data can turn data collection that was previously quite innocent into a serious threat to our ability to be free from government surveillance.
Historically, the law has recognized no constitutional issue with law enforcement collection of license plate numbers, because cars are normally out in public when the numbers are collected. But what happens if cop cars can collect every license plate from every car they pass, moving or parked; check the plate against a database of outstanding warrants; link them to GPS coordinates; and retain the records of which car was where forever, so that they can retrospectively construct a map of your movements?
Well, folks, that bright new day is here. The devices are called “automated license plate readers”, or ALPRs for short. And the ACLU of Massachusetts is supporting a bill that tries to grapple with their implications, and that received its first Joint Committee on Transportation hearing on May 16.
#MassOps, supported by the Defend the Fourth Coalition and Digital Fourth, are putting together a protest rally at the Boston Regional Intelligence Center. This is located at the headquarters of Boston PD, at One Schroeder Plaza, Roxbury, MA 02120. The rally is at 2:30pm, and there’s a pub crawl starting around 6:00-6:30pm.
For background on fusion centers and why they are so dangerous to our liberty, check out this prior article. If you want to RSVP, you can contact the organizers directly here.
[Originally published before the ruling; text and headline updated to reflect it. – Ed.]
The Supreme Court is considering the case Maryland v. King (thanks to Jennifer Wagner at Genomics Law Report for an excellent and detailed analysis), which turns on whether law enforcement needs a warrant to take the DNA of someone arrested and charged with, but not yet convicted of a crime. Maryland AG Douglas Gansler has argued to NPR that the privacy intrusion involved is negligible:
“They’re presumed innocent when they’re handcuffed; they’re presumed innocent when they’re strip-searched; and they’re presumed innocent when they’re sitting in jail awaiting trial,” he observes. “Those are far greater invasions of privacy than touching a Q-tip to the inside of your cheek for a second.”
The cheek swab taken from Mr. King came up with a hit for a six-year-old rape case. King was convicted of that charge, and is serving life in prison. King’s attorney, Kannon Shanmugam, argues that the intrusiveness of the search comes from the fact that the search was capable of disclosing a wide array of deeply personal information, and was taken at a time when his client had not been charged with any crime:
“The default rule under the Fourth Amendment is that when a search takes place, it has to be supported either by a warrant issued by a magistrate or by some level of individualized suspicion”
In this case, two very different conceptions of the Fourth Amendment collide. It was once the case that the physical intrusiveness of a search more or less tracked with the amount of information about the arrestee that the search would disclose. Fourth Amendment jurisprudence built up a careful set of rules regarding stops, patdowns and strip-searches, each of which would disclose more than the last and received correspondingly more careful scrutiny.
That relationship is now breaking down. People with smartphones carry their whole lives in a readily searchable object in their pocket, and searching that object is, in all ways but the physical, more intrusive than a strip search. Here, Gansler argues that because a cheek swab is easily taken and doesn’t even properly penetrate the body, it deserves less Fourth Amendment protection; Shanmugam argues that because the cheek swab can disclose information on which his client’s freedom may turn, it deserves the highest Constitutional protection. Continue reading Maryland v. King: Supreme Court Rules That Warrantless DNA Swabs of Arrestees Are A-OK
Scott Thistle at the Bangor Daily News reports that the Maine Senate is now considering a bill regulating the use of drones.
The bill is the result of consultations including legislators of both parties, the ACLU of Maine, and the Defense of Liberty PAC. It imposes a one-year moratorium on the use of drones by law enforcement in Maine, “except in emergencies”, pending a report from the Maine Criminal Justice Academy on how they could be used. However, the ACLU of Maine is unhappy with the version that has just passed out of the Judiciary Committee on a 7-6 vote, because it would in some circumstances allow police to operate drones without getting a Fourth Amendment compliant warrant. According to Thistle, the bill also does not make clear whether a drone could collect incidental footage that could later be used against a person other than the suspect detailed in a warrant.
There is also a Drone Privacy Act making its way through the Massachusetts legislature, though it is at an earlier stage and has the ACLU of Massachusetts’ strong support.
Perhaps the reason why the Maine bill has lost the support of the ACLU of Maine is that the “emergency exceptions” where a warrant is not required are rather broader in the Maine bill than in the Massachusetts bill. In Maine, the exceptions even include “conspiratorial activity that threatens the national security interest or is characteristic of organized crime”, which is vague, non-imminent, and broad enough to drive a truck through. The Massachusetts bill does not contain exceptions for those things.
Shenna Bellows, executive director of the ACLU of Maine, also objects to letting the police-run Criminal Justice Academy set the detailed rules for drone use. She states the problem plainly enough:
“The ACLU thinks that law enforcement should have a warrant before spying on Mainers with a drone and the [attorney general] does not. That’s the one issue where we cannot compromise.”
Good on you, Ms. Bellows. You have our full support.
The FBI has a new proposal afoot to require communications companies doing business in the US to make their communications technologies “wiretap-ready”, to avoid the “going-dark problem”. From Charlie Savage at the New York Times, six hours ago:
The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations. […]
Currently, such orders instruct recipients to provide technical assistance to law enforcement agencies, leaving wiggle room for companies to say they tried but could not make the technology work. Under the new proposal, providers could be ordered to comply, and judges could impose fines if they did not.
Under the proposal, officials said, for a company to be eligible for the strictest deadlines and fines — starting at $25,000 a day — it must first have been put on notice that it needed surveillance capabilities, triggering a 30-day period to consult with the government on any technical problems.
Lord forbid that private companies should offer services that can’t be wiretapped by the government. If the FBI finds itself unable to routinely spy on the communications of people not yet suspected of any crime, that’s a feature, not a bug, and is in fact what the Fourth Amendment requires.
In America, this manic need to collect every iota of data is “helping defeat the terrorists” and “protecting the homeland”. When other countries do it, though, it’s a whole different story. Read on!
Citizen! Were you under the misapprehension that the terrorist-sympathizing Supreme Court had ruled long ago that law enforcement had to get an actual warrant before accessing the content of your phone calls? Has that thought been keeping you up at night, because it allows people to express potentially un-American thoughts without the FBI being able to listen in and protect us? Well, fear no longer: your friendly neighborhood G-Man is on the case!
