Tag Archives: Warrants

MA, Feds Behind The Curve on Warrants for Email Searches

Back in the days of DEC and Wang Computer, there was serious doubt whether California’s Route 101 or Massachusetts’ Route 128 would be at the forefront of the digital economy. My aunt immigrated to Massachusetts to stake out her part of the new digital frontier. And round about that time, when I was seven years old, is also the last time Congress passed an email privacy bill. Called the “Electronic Communications Privacy Act“, by now it might as well be called the “Ordinance Describing Rules Regarding the Transportation of Speedy Telegrams Via Means Faster Than The Horse” for all the good it does. Among other ridiculously outdated provisions, it treated holding onto your emails for more than six months as a crazy-expensive thing only crazy people would ever do, so emails older than that are considered “abandoned” like your curbside trash. Law enforcement therefore don’t need to get a warrant to search it.

Fast-forward to now, and a federal bill to solve this, the Email Privacy Act, now has more than 300 sponsors in the House. That would be more than enough to pass it if it got to the floor, and is more cosponsors than any other bill still being held up in committee. It’s being held up essentially because the SEC and FTC want a free hand to not get warrants:

In a hearing before the Senate Judiciary Committee, representatives of the SEC and FTC claimed that other other types of court orders provide a comparable standard to a warrant based on probable cause. Nothing could be further from the truth. A search warrant – the standard in the constitution – allows access to information only when there is a strong likelihood it will show evidence of criminal violations of the law. That is a high standard that applies only in a narrow class of cases. By contrast the SEC and FTC are seeking access to email whenever it is relevant to civil violations of the law – such as mistakenly filling out a tax form. That is a low standard which applies in many cases. This rule would then apply to every agency – from the IRS to the local health inspector. Agencies shouldn’t be able to highjack reform to seek a digital power grab,” said Chris Calabrese, Vice President for Policy at the Center for Democracy & Technology (CDT)

In reaction to these roadblocks, organizers at the state level, including our fellow chapters of Restore The 4th – SF Bay Area and Restore The 4th- LA, have advocated for stronger state privacy laws, and in California, they just succeeded in passing Cal-ECPA, the strongest email privacy law in the nation.

In Massachusetts, our path to Warrant Protection for Email City has resembled so far, far more the federal path than the one California just chose. Last session, a bill was reported out favorably from committee, and got dropped only on the last day of the session, amid the usual flurry of the close of business. It just came up again at this week’s Judiciary Hearing, the ACLU testified on it, and we support it too. But California has now lit the path for us to follow, and it will matter greatly whether we follow it. Massachusetts residents should not enjoy lesser protections for their emails than California residents, any more than the Sox deserve to lose to the Giants.

If You Don’t Call Your Congressmember After Reading This, You’ll Regret It

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We’re asking everybody to call their Congressmember (Massachusetts numbers below the fold) to support HR1466, the Surveillance State Repeal Act, a bipartisan bill we helped introduce that would truly end mass surveillance. This is why it matters.

On June 1, the part of the PATRIOT Act that has been used to legitimate the mass collection of all of our phone call information, and much else besides, will lapse, It’s a terrible provision known as “Section 215.” Section 215 allows the FBI – and, it appears, other intelligence agencies too – to collect “any tangible things” that are “relevant” to a terrorism investigation. As it turns out, the intelligence community has argued explicitly that every single call in the United States is “relevant”. So, it appears, if we don’t let the NSA know exactly when I called the Danish Pastry House in Watertown about my one-year-old daughter’s first birthday cake, then ISIS will destroy us all.

There has been no legislation proposed yet from either chamber of Congress to renew Section 215. The intelligence community is panicking, and is apparently literally waving pictures of the burning Twin Towers at our elected officials, and telling them that if Section 215 lapses and there’s another attack, it’ll be the lawmakers’ fault and ISIS will destroy us all.

There may be a bill launched next week that would renew it, called the USA FREEDOM Act. Many civil liberties groups plan to support it, because it would also include reforms to Section 215, and may also reform (not repeal) the government’s other mass surveillance programs. We haven’t seen that bill yet, but it would have to be very strong to make it a better deal than simply letting the government’s Section 215 authority die.

There’s actually no evidence that Section 215’s mass surveillance programs have ever stopped a terrorist attack, and the government’s own reports have repeatedly shown that it has never stopped one. Follow me below the fold for the explanation why, and for the numbers to call!

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We All Now Live In Walls Of Glass: Police peer into suspects’ homes without warrants

Over the last two years, at least 50 law enforcement agencies around the United States have used radar devices that allow them to peer through walls and into your home without a warrant, according to USA Today. The devices, each of which costs nearly $6,000, detect movement – even breathing – through walls and up to 50 feet away.

According to contracts obtained by USA Today, the US Marshals Service began buying the radars in 2012 and has since spent $180,000 on the equipment – enough for thirty Range-R radars manufactured by L-3 Communications. Disturbingly, the radars can even be mounted on a drone.

The devices were originally manufactured for use in Iraq and Afghanistan ,but have made their way onto domestic soil, providing yet another example of how the use of military gear by police results in an infringement of our fundamental right to be free of unreasonable and warrantless searches and seizures.

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War-Addicted US Military Now Arguing It Can Spy On All Computers In States With Military Bases

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A new ruling from the Ninth Circuit (h/t Eugene Volokh) highlights a case where an NCIS agent:

“surveyed the entire state of Washington for computers sharing child pornography.” [their italics] It was Agent Logan’s “standard practice” to do so. There is “abundant evidence that the violation at issue has occurred repeatedly and frequently” […] [Agent Logan] “appeared to believe that these overly broad investigations were permissible, because he was a U.S. federal agent and so could investigate violations of either the Uniform Code of Military Justice or federal law.” […] Incredibly, “the government is arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military.”

In dissent, Justice Diarmuid O’Scannlain expresses his disgust that applying the exclusionary rule would “set a convicted child pornographer free”, and argues that “from the premise that the government believes it has a certain power, it does not follow that the government routinely exercises that power.”

This was the first time that a Posse Comitatus violation had been addressed by excluding the evidence, and legal blogs are abuzz with the question of whether that remedy was appropriate. To me, O’Scannlain’s visceral dissent naively ignores the government’s track record on surveillance and civil liberties, and the fact that this case effectively discloses a new form of mass government surveillance practice.

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The Executive’s Humpty-Dumpty Terrorism Watchlisting Policy: Lessons from People v. Morales

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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.

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Not to go all mise en abyme about it, but this definition is, well, abysmal. Let’s take it a step at a time.

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We Need Real Surveillance Reform, Not The House’s “USA Freedom Act”

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Last week, the House of Representatives passed the bill called The USA Freedom Act, 303 votes to 121. Following a series of amendments, the bill as it passed in the end contained much weaker reforms than even the very modest ones it originally proposed. The Chair of the Judiciary Committee’s manager’s amendment removed two-thirds of its substantive reforms; the Chair of the Intelligence Committee and the White House worked hard to remove as much as possible of what remained, leaving a shell that will still permit mass surveillance.

The Fourth Amendment is clear: Mass surveillance is unconstitutional. A government search is unreasonable, and therefore unconstitutional, if it is not authorized beforehand by a warrant issued by a judge, on the basis of “probable cause” of involvement in an actual crime, supported by an “oath or affirmation, and particularly describing” the “persons or things to be seized.”

That’s what ought to happen. This bill, on the other hand, would allow government searches of millions of innocent people’s data and movements, not based on probable cause or even reasonable suspicion of their personal involvement in a crime, but simply on any “selection term” vaguely associated with a target of surveillance. The “selection term” could be as broad as the government likes, covering, for example, everyone born in Hawaii, or everyone with the middle name Hussein. The argument for this “reform” that supporters are touting is that this is better than the current government practice of collecting everything with no selection term at all. While that’s true, it misses the larger point. The standard is individualized probable cause warrants, not “whatever is most convenient for the NSA.” A standard that can be redefined at will is marginally – if at all – better than having none.

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Animal welfare clashes with the Fourth Amendment in Lynn

In April, the Supreme Judicial Court of Massachusetts expanded the circumstances under which police could enter a home without a search warrant.

The facts of the case are of a nature almost calculated to extinguish sympathy with the defendant. As reported in the Lynn Daily Item, the Duncan family mistreated their dogs and left them outside in January of 2011.

Massachusetts in a typical January is no picnic.

Massachusetts in a typical January is no picnic.

A neighbor called the police, and the police found two dogs dead in the front yard and a third starving to death.

Normally, the Fourth Amendment prevents access to the home or the “curtilage” (surroundings) of a home without a warrant based on probable cause. However, the Fourth Amendment is also honeycombed through with two centuries’ worth of exceptions and special circumstances driven by facts such as these. Here, the court ruled that the already-existing “exigent circumstances” exception to needing a warrant in order to save human life, also applied to animal life. The Massachusetts Society for the Prevention of Cruelty to Animals, among others, were pleased at the outcome.

We are not altogether so pleased at the implications of this ruling. Let me explain why.

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NH: Warrants now likely to be required for cellphones

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Following on from February’s ruling by Massachusetts’ Supreme Judicial Court that law enforcement needs a warrant to obtain cellphone location information, New Hampshire is now strengthening its laws relating to cellphone searches.

A short and simple bill introduced by Reps. Kurk, Sandblade and O’Flaherty, all of Hillsborough County, NH, provides that a warrant, “signed by a judge and based on probable cause,” is required for “information contained in a portable electronic device”. It’s not clear to me whether that would include cellphone location information or not, because that could be interpreted to not be “contained in” the phone. The House version includes misdemeanor penalties for a “government entity” which violates the act, as well as civil liability. The Senate version keeps civil liability, allowing a person to sue for damages, while removing the criminal penalties. This difference is what will be worked out in a joint committee in the coming week, before it heads to the Governor’s desk.

This is great news for the Fourth Amendment, and it’s good evidence that we can get meaningfully greater protections for our personal data by working through state legislatures.

UPDATE: A warrant is required only for phones that are password-protected. If you live in NH, or are visiting for the weekend, add that password!

Commonwealth Fusion Center Violates Constitution, New Report Says

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Massachusetts has two “fusion centers”, mostly state-funded, which aggregate enormous amounts of data on innocent Massachusetts residents, with the notion of preventing terrorist attacks. When you call the “See Something, Say Something” line, the information goes into “Suspicious Activity Reports.” The ACLU of Massachusetts documented that the Boston fusion center (“BRIC”) had actually spent its time harassing peaceful activists rather than thwarting terrorism, which is one of the reasons why there will be nationwide protests against fusion centers on April 10, including in Boston.

In response to the ACLU revelations, Rep. Jason Lewis (now the newly elected Sen. Jason Lewis) filed a fusion center reform bill on Beacon Hill. Disconcerted at the prospect of more sunshine on their work, the Commonwealth Fusion Center, the fusion center in Maynard, offered him and other legislators a courtesy tour of their facility, to try to explain what good work they were doing. As an example of that work, they cited their First Amendment-violating harassment of an Arlington man who was not actually planning any violent crime, but who had tweeted about it being a good idea to shoot statists. They also provided to Rep. Lewis copies of various policies that they follow, including their Privacy Policy (updated 06.13.2013) and their policy on First Amendment investigations. Rep. Lewis then asked Digital Fourth to evaluate the policies they had provided, to assess whether they were constitutional. We enthusiastically agreed, and the resulting report is here.

Here are our main recommendations:

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