ACLU Calls for New Investigations into Todashev Death
Ibraghim Todashev’s father holds up photos of his dead son at a press conference at the RIA Novosti headquarters. © RIA Novosti. Alexander Natruskin
RIA Novosti – July 23, 2013
WASHINGTON – The American Civil Liberties Union (ACLU) wants two US states, Florida and Massachusetts, to open their own investigations into the Federal Bureau of Investigation (FBI) shooting death of a Chechen immigrant acquainted with one of the Boston Marathon bombing suspects.
“A person was shot and killed at the hands of law enforcement in Florida. That alone should require Florida officials to investigate, and explain to the public what happened,” said Howard Simon, Florida Executive Director for the nonprofit civil liberties organization, in an ACLU press release.
The FBI and the Department of Justice are conducting an internal inquiry into the death of 27-year-old Ibragim Todashev, who was shot and killed by a Boston-based FBI agent during an interrogation with several different law enforcement agencies at his Orlando, Florida apartment on May 22.
Todashev was being questioned about a triple murder in the Boston area and his link to suspected marathon bomber Tamerlan Tsarnaev, who was killed during a shootout with police in the Boston suburb of Watertown four days after the bombings.
There have been varying reports about exactly what happened when Todashev was killed.
“Florida officials are simply deferring to the FBI, allowing the FBI to investigate itself, but it is difficult to accept the FBI’s honesty in this matter,” the ACLU wrote in a letter to Commissioner Gerald Bailey of the Florida Department of Law Enforcement, adding, “Now, more than eight weeks later, the public has very little information about this incident… Officials in both states should conduct their own investigations.”
In a similar letter to Massachusetts Attorney General Martha Coakley, the ACLU of Massachusetts (ACLUM) pointed to a New York Times analysis that found “FBI shooting reviews… virtually always clear the agency of wrongdoing.”
Last week the FBI blocked the release of Todashev’s autopsy by the Florida medical examiner’s office.
Carol Rose, ACLUM executive director, wrote, “It seems unlikely that the FBI investigation will meaningfully inform Massachusetts residents about what happened.”
Coakley’s office does not plan to open a new investigation.
“While the use of deadly force by law enforcement should be appropriately investigated, this particular incident happened in another state, which is outside our jurisdiction,” Coakley spokesman Brad Puffer told RIA Novosti.
Officials in Florida did not immediately respond to a request for comment from RIA Novosti.
Related article
- FBI withholds autopsy of Tsarnaev associate ‘shot in head’ during questioning (alethonews.wordpress.com)
Obama administration drowning in lawsuits filed over NSA surveillance
RT | July 16, 2013
Attorneys for the Electronic Frontier Foundation have sued the Obama administration and are demanding the White House stop the dragnet surveillance programs operated by the National Security Agency.
Both the White House and Congress have weighed in on the case of Edward Snowden and the revelations he’s made by leaking National Security Agency documents. Now the courts are having their turn to opine, and with opportunities aplenty.
Day by day, new lawsuits waged against the United States government are being filed in federal court, and with the same regularity President Barack Obama and the preceding administration are being charged with vast constitutional violations alleged to have occurred through the NSA spy programs exposed by Mr. Snowden.
The recent disclosures made by Snowden have generated commotion in Congress and the White House alike. The Department of Justice has asked for the 30-year-old former Booz Allen Hamilton worker to be extradited to the US to face charges of espionage, and members of both the House and Senate have already held their share of emergency hearings in the wake of Snowden’s series of disclosures detailing the vast surveillance programs waged by the US in utmost secrecy. But with the executive and legislative branches left worrying about how to handle the source of the leaks — and if the policies publicized should have existed in the first place — the courts could soon settle some disputes that stand to shape the way the US conducts surveillance of its own citizens.
Both longstanding arguments and just-filed claims have garnered the attention of the judicial branch in the weeks since the Guardian newspaper first began publishing leaked NSA documents attributed to Snowden on June 6. But while the courts have relied previously on stalling or stifling cases that challenge Uncle Sam’s spy efforts, civil liberties experts say the time may be near for some highly anticipated arguments to finally be heard. Now on the heels of lawsuits filed by the likes of the American Civil Liberties Union and the Electronic Privacy Information Center, groups are coming out of the woodwork to wage a legal battle against the White House.
The most recent example came this week when a coalition of various organizations filed suit together against the Obama administration by challenging “an illegal and unconstitutional program of dragnet electronic surveillance, specifically the bulk acquisition, collection, storage, retention and searching of telephone communications information.” Represented by attorneys from the EFF and others, the plaintiffs in the latest case filed Tuesday in San Francisco federal court include an array of groups, such as: First Unitarian Church of Los Angeles; Bill of Rights Defense Committee; Calguns Foundation; California Association of Federal Firearms Licensees; Council on Islamic Relations; Franklin Armory; Free Press; Free Software Foundation; Greenpeace; Human Rights Watch; Media Alliance; National Organization for the Reform of Marijuana Laws; Open Technology Institute; People for the American Way, Public Knowledge; Students for Sensible Drug Policy; TechFreedom; and Unitarian Universalist Service Committee.
Cindy Cohn, the legal director of the EFF, told the Washington Post that the NSA leaks credited to Snowden have been a “tremendous boon” to the plaintiffs in recently filed court cases challenging the surveillance state. The courts are currently pondering at least five important cases, Cohn told the Post, which could, once and for all, bring some other issues up for discussion.
Since June 6, the American Civil Liberties Union, a Verizon Wireless customer and the founder of conservative group Judicial Watch have all filed federal lawsuits against the government’s collection of telephony metadata, a practice that puts basic call records into the government’s hands without a specific warrant ever required and reported to the media by Mr. Snowden. Larry Klayman of Judicial Watch has also sued over another revelation made by Snowden — the PRISM Internet eavesdropping program — and the Electronic Privacy Information Center, or EPIC, has asked the Supreme Court to vacate the order compelling Verizon Business Network Services to send metadata to the feds.
Perhaps most important, however, is a California federal court’s recent decision to shut down the government’s request to stop the case of Jewel vs. NSA from proceeding. That debate first began in 2008 when Jewel, a former AT&T customer, challenged the government’s “illegal and unconstitutional program of dragnet communications surveillance” as exposed by a whistleblower at the telecom company. That case has seen roadblock after roadblock during the last five years, but all that changed earlier this month. The government long argued that Jewel v. NSA can’t go up for discussion because the issues at hand are privileged as ‘state secrets’ and can’t be brought into the public realm.
“[T]he disclosure of sensitive intelligence sources and methods . . . reasonably could be expected to cause exceptionally grave harm to national security,” the government wrote in one earlier filing. “The very purpose of these cases is to put at issue whether the NSA undertook certain alleged activities under presidential authorization after 9/11, and whether those activities continue today. At every stage, from standing to the merits, highly classified and properly privileged intelligence sources and methods are at risk of disclosure. The law is clear, however, that where litigation risks or requires the disclosure of information that reasonably could be expected to harm national security, dismissal is required.”
Following Snowden’s recent disclosures, though, Judge Jeffrey White of the Northern District of California ruled on July 8 that there’s a way for those cases to still be heard.
“The court rightly found that the traditional legal system can determine the legality of the mass, dragnet surveillance of innocent Americans and rejected the government’s invocation of the state secrets privilege to have the case dismissed,” the EFF’s Cohn, who is working on the case, said in a statement issued at the time of the ruling. “Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the Director of National Intelligence. Today’s decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans’ constitutional rights.”
Weighing in weeks later to the Post, Cohn said that outcome could have more of an impact than many might imagine. “It’s tremendous, because anything that allows these cases to proceed is important,” she said.
Speaking to the New York Times this week, American Civil Liberties Union attorney Jameel Jaffer said that until now the government has operated a “shell game” to shield it’s surveillance programs from litigation. “[T]he statute has been shielded from judicial review, and controversial and far-reaching surveillance authorities have been placed beyond the reach of the Constitution,” he said.
Should Cohn’s prediction come true, though, the courts could decide to weigh in and reshape the way the government currently conducts surveillance.
According to University of Pittsburgh law professor Jules Lobel, a victory there could come in more than one way. “There is a broader function to these lawsuits than simply winning in court,” he told the Post. “The government has to respond, and forcing them to go before a court might make them want to change aspects of the programs.”
“The government does things to avoid embarrassment,’’ he added, “and lawsuits are a key pressure point.’’
Interviews to the Post and the Times come just days after Sen. Ron Wyden (D-Oregon), a long-time member of the Senate Intelligence Committee, said he thought the revelations made by Snowden may influence the White House to reconsider their surveillance practices before the courts can even have their chance.
“I have a feeling that the administration is getting concerned about the bulk phone records collection, and that they are thinking about whether to move administratively to stop it,” Sen. Wyden told the Times.
“I think we are making a comeback,” he said.
Related articles
- Federal Judge Allows EFF’s NSA Mass Spying Case to Proceed (alethonews.wordpress.com)
- Privacy groups led by EFF sue to stop NSA and FBI electronic surveillance (guardian.co.uk)
- Unitarian Church, Gun Groups Join EFF to Sue NSA Over Illegal Surveillance (eff.org)
Five unanswered questions about the NSA’s surveillance programs
By Brendan Sasso | The Hill | 07/07/13
Leaks by former National Security Agency contractor Edward Snowden have provided new insight into how the government monitors domestic and foreign communications for threats to national security.
Although the government has disclosed some additional details about the programs in response to the leaks, important questions remain about the nature and scope of the surveillance programs.
Without that additional information, it is impossible to know the extent to which the government is peering into the lives of Americans in the name of national security, according to privacy advocates.
1. What other data is being collected under the Patriot Act?
The first leak from Snowden was a secret court order demanding that Verizon turn over vast batches of “metadata” on its U.S. customers. The data included the time and duration of calls, as well as the phone numbers involved, but not the contents of the conversations. The data collection was authorized under Section 215 of the Patriot Act.
The Director of National Intelligence (DNI) clarified that while the government does obtain data on millions of U.S. phone calls (and from more companies than just Verizon), it only “queries” the database a limited number of times for specific national security reasons.
Michelle Richardson, a legislative counsel for the American Civil Liberties Union (ACLU), questioned whether the NSA is using Section 215 to collect more than just phone records.
“Is it also financial data or Internet records or other things?” she asked. “Knowing now that the court has been so broad in its interpretation, it’s even more important to figure out what else they’re getting.”
Greg Nojeim, a senior counsel for the Center for Democracy and Technology, said the NSA is likely using the Patriot Act to collect the credit card records and IP addresses of millions of people within and outside of the United States.
2. How broad are the programs?
How many people have been spied on through the NSA programs remains unclear. According to the NSA, it queried its massive database of phone records fewer than 300 times in 2012. But the agency did not disclose figures on other years or how many phone numbers were accessed in those queries.
Richardson explained that a single query could be an algorithm that scans the database and returns information on many people.
The other major program revealed by Snowden is the NSA’s Internet surveillance program, called PRISM. Unlike the phone record collection program under the Patriot Act, the NSA uses PRISM to access the contents of communications, such as emails, video chats, photographs and other information.
According to the DNI, the NSA only accesses those online records if there is a “foreign intelligence purpose” and the target is “reasonably believed” to be outside of the U.S. The program is authorized by Section 702 of the Foreign Intelligence Surveillance Act, and the searches require approval by a secret FISA court.
The NSA has not disclosed how many people it has targeted under Section 702 or how many people were spied on incidentally as part of the program.
“We have no idea how many U.S. persons have had their communications swept up,” said Sharon Bradford Franklin, senior counsel for the Constitution Project.
3. What’s the legal rationale?
The NSA has insisted the surveillance programs comply with the law and are overseen by independent FISA courts. But the opinions of those courts are secret, so little is known about how the courts are enforcing privacy protections or why they signed off on certain surveillance methods.
Section 215 of the Patriot Act allows the government to collect business records if they are “relevant” to a terrorism investigation. The FISA courts have determined that that provision allows the NSA to collect records on virtually all phone calls within and outside of the U.S. Why the court determined that so much data is “relevant” to a terrorism investigation remains unclear.
“Generally we don’t know the legal rationale being offered by the administration and being accepted by the FISA court to justify these particular types of surveillance programs,” Bradford Franklin said. “We should not have secret law in a democracy.”
4. Is the NSA still collecting email records?
One of the latest leaks revealed that beginning in 2001, the NSA collected vast amounts of email records. The NSA was able to identify the email accounts that sent and received messages, as well as IP addresses. The data collection did not include the contents of the emails.
The Obama administration confirmed the existence of the program, but said it ended in 2011 for “operational and resource reasons.”
One major question, according to privacy advocates, is whether the government is still able to obtain similar email records through a separate program.
5. Are there other programs that we don’t know about?
Although the NSA has provided some details about the programs leaked by Snowden, it is unclear what other programs exist and how they work together as part of a broad surveillance strategy.
“There’s this giant surveillance superstructure out there that we’re finally getting glimpses of, but there’s still a lot of questions of how does the whole thing work,” Richardson said.
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DHS defends suspicionless searches of laptops and cell phones
RT | June 6, 2013
The United States government doesn’t need a reason to seize and search the cell phones, laptops and other electronic devices of Americans entering the country, according to a Department of Homeland Security document provided to the press this week.
The DHS has long insisted that border agents and immigration officers are allowed to collect the electronics of US citizens crossing into the country without reason or cause, but a December 2011 document made public this week once and for all shines a light on a sparsely discussed security-measure that has attracted the attention of privacy advocates and others who’ve equated the practice as a constitutional violation.
The American Civil Liberties Union and the Associated Press jointly filed a Freedom of Information Act request for the document earlier this year after the DHS published a two-page executive summary briefly explaining the results of an audit conducted by the department’s Office for Civil Rights and Civil Liberties. In that statement, the DHS auditor concluded that Customs and Border Protection agents and officers with Immigration and Customs Enforcement were not violating either the First or Fourth Amendments to the US Constitution by seizing the electronics of Americans without clear suspicion of a crime.
“We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment,” Tamara Kessler wrote for the Office for Civil Rights and Civil Liberties in the summary. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”
Now with the full 23-page paper in their possession — albeit a version that’s seen a fair share of redactions — the AP and ACLU have published the document in order to expose a post-9/11 policy that has remained intact under President Barack Obama, but to little discussion.
“This is striking,” ACLU fellow Brian Hauss wrote Wednesday, “because it is the first time, as far as we know, that the government has explained why purely suspicionless searches supposedly enhance security.”
The government’s reasoning, according to the document, is that the blanketing ability to collect and assess the devices of anyone thought to be entering the country is crucial to thwart high crimes. That being said, the government attests that requiring actual probable cause before seizing a device would, in the eyes of the DHS, hinder their ability to counter terrorism.
“[A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit,” the document found. “First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches.”
“Even a policy change entirely unenforceable by courts might be problematic,” it continued. “Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.”
Speaking to AP, ACLU staff attorney Catherine Crump said the government’s reasoning is “just not good enough” and demonstrates purely inadequate reasoning.
“A purely suspicionless search opens the door to ethnic profiling,” Crump said.
Hauss, the legal fellow for the group’s Speech, Privacy and Technology Project, said the government’s line of thought in defending the policy is faulty for a few different reasons. “DHS claims that giving Americans the opportunity to challenge laptop searches in court would lead to the divulgence of national security secrets, but this is obviously wrong,” he wrote. “The government has numerous resources at its disposal to prevent the disclosure of sensitive information. The ‘state secrets privilege,’ to take just one example that is used in court cases, has been criticized on many grounds, but no one has ever seriously suggested that its protections are too anemic. Although DHS might fear the prospect of being called into open court to explain its actions, executive accountability before the law is the bedrock on which our system of constitutional self-government is built.”
Last year, the US Supreme Court upheld an earlier ruling that legally permitted the use of suspicionless roadblocks anywhere within 100 miles of an international border, subjecting nearly 200 million Americans around the country to spontaneous and sporadic inspections of vehicles and their possessions.
On Tuesday, ACLU spokesperson Peter Boogaard told Bloomberg News that a 2009 policy change restricted how long the DHS can hold on to seized electronics. Earlier this week, though, it was suggested that the department did not necessarily see any problems with duplicating that information to be held on to indefinitely.
David House, a founding member of the Bradley Manning Support Network, sued the DHS in 2011 after his computer and cell phone were seized after an international flight he was on landed at O’Hare International Airport in Chicago. On behalf of the ACLU, House sued DHS Secretary Janet Napolitano on the accusation that his belongings were searched solely on the basis of his association with the Support Network, an organization that has paid in full the legal bills for the 25-year-old Army private accused of committing espionage and aiding terrorists by sharing sensitive files with the website WikiLeaks. House’s devices were held for 49 days by ICE — longer than the 30 days allowed legally — and the contents of those electronics were copied by investigations. House dropped his lawsuit last after the DHS agreed to delete its copy of the data.
“They’re giving us exactly what we wanted,” House told Wired.
Federal Judge: Only Powered-Off Cell Phones Deserve Privacy Protections
By Chris Soghoian | ACLU | May 15, 2013
A federal magistrate judge in New York recently ruled that cell phone location data deserves no protection under the Fourth Amendment and that accordingly, the government can engage in real-time location surveillance without a search warrant. In an opinion straight from the Twilight Zone, magistrate judge Gary Brown ruled two weeks ago that “cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.”
The case in question involved a physician who the DEA believed had issued thousands of prescriptions for pain killers in exchange for cash. In March of this year, the DEA had obtained a warrant for his arrest, and, not knowing where he was, sought an order from magistrate judge Brown forcing the phone company to provide real-time data identifying the location of the physician’s phone.
Although the DEA agents requested a search warrant and the judge found that there was probable cause to believe that the cell phone location data would assist in the location and apprehension of an individual for whom there was already a valid arrest warrant, the judge later published a 30-page opinion further stating that he didn’t think the government needed to seek a search warrant in the first place.
Don’t Want the Government Tracking You? Turn Your Phone Off
In his puzzling opinion, the judge squarely criticizes people naive enough to expect privacy while also leaving their cell phones on when they’re not using them.
Given the ubiquity and celebrity of geolocation technologies, an individual has no legitimate expectation of privacy in the prospective location of a cellular telephone where that individual has failed to protect his privacy by taking the simple expedient of powering it off.
…
As to control by the user, all of the known tracking technologies may be defeated by merely turning off the phone. Indeed—excluding apathy or inattention—the only reason that users leave cell phones turned on is so that the device can be located to receive calls. Conversely, individuals who do not want to be disturbed by unwanted telephone calls at a particular time or place simply turn their phones off, knowing that they cannot be located.
The Catch-22 here is that the only people who the judge believes would have any reasonable expectation of privacy are those whose phones are turned off (and thus, not generating any location data that the government could access, even with a warrant). And it ignores the necessity of keeping your cell phone turned on for communicating with family or for work.
That consumers are dumb enough to willingly share their location using the “Girls Around Me” app (which the judge specifically calls out by name, although the wrong one), only further justifies covert, warrantless government surveillance:
Given the notoriety surrounding the disclosure of geolocation data to retailers purveying soap powder and blue jeans to mall shoppers, the police searching for David Pogue’s iPhone and, most alarmingly, the creators and users of the Girls Around You app, cell phone users cannot realistically entertain the notion that such information would (or should) be withheld from federal law enforcement agents searching for a fugitive.
This is, in a word, ridiculous. There is a big difference between location information you knowingly share with a select group of friends (or, in fact, the world) and information collected about you without your knowledge or consent. Someone might be happy to share their location with a few friends by “checking in” using Foursquare while at a music festival, but not want law enforcement to access that same information. And, they would still reasonably expect that their location a week later while at an Alcoholics Anonymous meeting or abortion clinic should remain private. Sharing location data isn’t and shouldn’t be all or nothing.
We are also baffled by the judge’s willingness to tie a reasonable expectation of privacy to the use of a cell phone power button. We’re not sure if the judge has watched the Onion’s spoof news video describing a fictional “Google Opt Out Village” for people who don’t want to be tracked by the advertising company, but the logic in his opinion is consistent with the absurdity of that spoof. If you don’t want Google to track you, stop using all modern technology and move to a remote village. If you don’t want the government to covertly track your phone, turn it off and leave it off. What could be simpler, right?
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Obama to support Internet wiretapping program
RT | May 08, 2013
United States President Barack Obama is likely to endorse a Federal Bureau of Investigation effort that would ensure all Internet companies in the US provide a way for the government to conduct undetected, backdoor surveillance.
The FBI has been considering solutions to their so-called “Going Dark” problem as intricate methods of encryption and advances in technology have made it increasingly difficult for the federal government and law enforcement to gain access to online communications conducted in the shadows of the Web. Should the latest efforts of the FBI move forward, though, Internet companies that act as any conduit for correspondence of any kind would be heavily fined if they don’t include in their infrastructure a way for the government to eavesdrop on that dialogue in real time.
At a press conference in Washington, DC in March, FBI general counsel Andrew Weissmann said the Department of Justice was determined to have the means to wiretap any online communication by 2014 and called it “a huge priority for the FBI.” Further developments last month revealed that the FBI was considering a fine-based model under which Internet companies would be forced to comply or risk being penalized beyond repair.
On Tuesday, New York Times reporter Charlie Savage cited Obama administration officials as saying the president “is on the verge of backing” that very plan.
Savage explained that while companies would be allowed to operate without giving the government backdoor access, the fees would likely limit the number of entities willing to challenge the order. As RT reported last month, a company that doesn’t comply with the FBI’s orders would be fined $25,000 after 90 days. Additional penalties would then be tacked on every day an Internet service provider, website or other company fails to comply — with the price of the penalty doubling each day they don’t assist investigators.
“While the FBI’s original proposal would have required Internet communications services to each build in a wiretapping capacity, the revised one, which must now be reviewed by the White House, focuses on fining companies that do not comply with wiretap orders,” wrote Savage. “The difference, officials say, means that start-ups with a small number of users would have fewer worries about wiretapping issues unless the companies became popular enough to come to the Justice Department’s attention.”
Savage quoted a statement in his article from Weissmann in which the FBI attorney said, “This doesn’t create any new legal surveillance authority.” Instead, said Weissman, “None of the ‘going dark’ solutions would do anything except update the law given means of modern communications.”
“This always requires a court order,” he said.
Coincidently, that same issue has had major developments in its own right this week. On Wednesday morning, CNET reporter Declan McCullagh wrote that the Justice Department circulated memos in which they insisted that obtaining a search warrant isn’t necessary to eavesdrop on Internet communication of any sort.
“The US Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages and other private files, internal documents reveal,” wrote McCullagh, citing a government documents obtained by the American Civil Liberties Union and provided to CNET.
According to McCullagh, those documents include very specific instructions from high-importance officials that demonstrate the Justice Department’s disinterest in applying established law when it comes to eavesdropping on Americans. While Weissmann made the argument that the FBI plan reportedly backed by the president won’t change what rules the DoJ operates by, the memos obtained by McCullagh paints the Obama White House as an administration unwilling to work with the already broad surveillance powers provided to it.
In one memo unearthed by the ACLU, McCullagh said the US attorney for Manhattan instructed his office that an easy-to-obtain legal paper that requires no judicial oversight is all that’s needed to obtain personal correspondence.
“[A] subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly ‘all records from an ISP,’” McCullagh wrote.
In another instance, McCullagh said the US attorney in Houston, Texas obtained the “contents of stored communications” from another ISP without getting a judge to sign a warrant.
One current law that limits how and when authorities can obtain a suspect’s email pursuant to a criminal investigation, the Electronic Communication Privacy Act, provides that while a warrant is needed for relatively recent correspondence, a comparably easier to get administrative subpoena is all that’s required to get communication older than 180 days. Provisions of the ECPA have been largely unchanged since it was passed in the mid-1980s, but last month a Senate Judiciary Committee approved an amendment that would require a warrant in all instances.
In advocating for fewer restrictions when obtaining store communication, the FBI’s Wessmann said in April that another law, 1994’s Communications Assistance for Law Enforcement Act, needs to be expanded so investigators can leap over current hurdles that keep them from conducting real time wiretaps of online discussions.
“You do have laws that say you need to keep things for a certain amount of time, but in the cyber realm you can have companies that keep things for five minutes,” he said. “You can imagine totally legitimate reasons for that, but you can also imagine how enticing that ability is for people who are up to no good because the evidence comes and it goes.”
In the wake of the Boston Marathon bombing on April 15, renewed calls across the country have been made to make it easier for investigators to quickly conduct surveillance — in and off the Web. A recent poll found that roughly two-thirds of Americans favored more surveillance cameras in public places, and now the nation’s top law officials are asking for increased spy power not just on the streets but on the Web.
Earlier this month, Google Chairman Eric Schmidt said at a discussion in Washington, “When you come across an advocate for one thing — an advocate for security, and advocate for privacy — they’re often arguing from a position without understanding that it’s a two-edged sword.”
“For example, very strong encryption would allow you and I to have a very, very secure communication: If we were criminals, if we were dissidents, if we were martyrs or if we were just doing a little business,” he said. “If you could figure out a way to ban very strong encryption from evil people and only allow good people…then this would be easy,” he said.
Related articles
- Obama administration bypasses CISPA by secretly allowing Internet surveillance (alethonews.wordpress.com)
- Spy, or pay up: FBI-backed bill would fine US firms for refusing wiretaps (alethonews.wordpress.com)
- To Ease Internet Snooping, Feds Promise To Ignore Privacy Violations (reason.com)
Automated License Plate Readers Threaten Our Privacy
By Jennifer Lynch and Peter Bibring | EFF | May 6, 2013
Law enforcement agencies are increasingly using sophisticated cameras, called “automated license plate readers” or ALPR, to scan and record the license plates of millions of cars across the country. These cameras, mounted on top of patrol cars and on city streets, can scan up to 1,800 license plate per minute, day or night, allowing one squad car to record more than 14,000 plates during the course of a single shift.
Photographing a single license plate one time on a public city street may not seem problematic, but when that data is put into a database, combined with other scans of that same plate on other city streets, and stored forever, it can become very revealing. Information about your location over time can show not only where you live and work, but your political and religious beliefs, your social and sexual habits, your visits to the doctor, and your associations with others. And, according to recent research reported in Nature, it’s possible to identify 95% of individuals with as few as four randomly selected geospatial datapoints (location + time), making location data the ultimate biometric identifier.
To better gauge the real threat to privacy posed by ALPR, EFF and the ACLU of Southern California asked LAPD and LASD for information on their systems, including their policies on retaining and sharing information and all the license plate data each department collected over the course of a single week in 2012. After both agencies refused to release most of the records we asked for, we sued. We hope to get access to this data, both to show just how much data the agencies are collecting and how revealing it can be.
ALPRs are often touted as an easy way to find stolen cars — the system checks a scanned plate against a database of stolen or wanted cars and can instantly identify a hit, allowing officers to set up a sting to recover the car and catch the thief. But even when there’s no match in the database and no reason to think a car is stolen or involved in a crime, police keep the data. According to the LA Weekly, LAPD and LASD together already have collected more than 160 million “data points” (license plates plus time, date, and exact location) in the greater LA area—that’s more than 20 hits for each of the more than 7 million vehicles registered in L.A. County. That’s a ton of data, but it’s not all — law enforcement officers also have access to private databases containing hundreds of millions of plates and their coordinates collected by “repo” men.
Law enforcement agencies claim that ALPR systems are no different from an officer recording license plate, time and location information by hand. They also argue the data doesn’t warrant any privacy protections because we drive our cars around in public. However, as five justices of the Supreme Court recognized last year in US v. Jones, a case involving GPS tracking, the ease of data collection and the low cost of data storage make technological surveillance solutions such as GPS or ALPR very different from techniques used in the past.
Police are open about their desire to record the movements of every car in case it might one day prove valuable. In 2008, LAPD Police Chief Charlie Beck (then the agency’s chief of detectives) told GovTech Magazine that ALPRs have “unlimited potential” as an investigative tool. “It’s always going to be great for the black-and-white to be driving down the street and find stolen cars rolling around . . . . But the real value comes from the long-term investigative uses of being able to track vehicles—where they’ve been and what they’ve been doing—and tie that to crimes that have occurred or that will occur.” But amassing data on the movements of law-abiding residents poses a real threat to privacy, while the benefit to public safety is speculative, at best.
In light of privacy concerns, states including Maine, New Jersey, and Virginia have limited the use of ALPRs, and New Hampshire has banned them outright. Even the International Association of Chiefs of Police has issued a report recognizing that “recording driving habits” could raise First Amendment concerns because cameras could record “vehicles parked at addiction-counseling meetings, doctors’ offices, health clinics, or even staging areas for political protests.”
But even if ALPRs are permitted, there are still common-sense limits that can allow the public safety benefits of ALPRs while preventing the wholesale tracking of every resident’s movements. Police can and should treat location information from ALPRs like other sensitive information — they should retain it no longer than necessary to determine if it might be relevant to a crime, and should get a warrant to keep it any longer. They should limit who can access it and who they can share it with. And they should put oversight in place to ensure these limits are followed.
Unfortunately, efforts to impose reasonable limits on ALPR tracking in California have failed so far. Last year, legislation that would have limited private and law enforcement retention of ALPR data to 60 days—a limit currently in effect for the California Highway Patrol — and restricted sharing between law enforcement and private companies failed after vigorous opposition from law enforcement. In California, law enforcement agencies remain free to set their own policies on the use and retention of ALPR data, or to have no policy at all.
Some have asked why we would seek public disclosure of the actual license plate data collected by the police—location-based data that we think is private. But we asked specifically for a narrow slice of data — just a week’s worth — to demonstrate how invasive the technology is. Having the data will allow us to see how frequently some plates have been scanned; where and when, specifically, the cops are scanning plates; and just how many plates can be collected in a large metropolitan area over the course of a single week. Actual data will reveal whether ALPRs are deployed primarily in particular areas of Los Angeles and whether some communities might therefore be much more heavily tracked than others. If this data is too private to give a week’s worth to the public to help inform us how the technology is being used, then isn’t it too private to let the police amass years’ worth of data without a warrant?
After the Boston Marathon bombings, many have argued that the government should take advantage of surveillance technology to collect more data rather than less. But we should not so readily give up the very freedoms that terrorists seek to destroy. We should recognize just how revealing ALPR data is and not be afraid to push our police and legislators for sensible limits to protect our basic right to privacy.
Documents
EFF and ACLU-SC’s legal Complaint
LA Sheriff’s Department ALPR Powerpoint Presentation
LA Sheriff’s Department – Automated License Plate Reader System Information
LAPD – Automated License Plate Reader User Guide
LA Sheriff’s Department – Field Operations Directive
IRS Says It Will Respect 4th Amendment With Regard to Email, But Questions Remain
By Nathan Freed Wessler | ACLU | April 16, 2013
With tax day behind us, taxpayers may soon have something else to celebrate from the IRS. In testimony before the Senate Finance Committee today, IRS Acting Commissioner Steven Miller was questioned aggressively about documents released by the ACLU last week that indicate that the IRS does not think it needs a warrant to read all emails and other electronic communications during criminal investigations. Under pressure from senators, Miller agreed to update IRS policy documents within 30 days to state that a warrant is required for access to all emails, regardless of their age.
Two senators from opposite sides of the aisle, Senator Grassley (R-IA) and Senator Wyden (D-OR), pressed Miller about whether the IRS has sought or obtained emails without a warrant since a federal appeals court ruled in 2010 that a warrant is required for all emails. (You can watch the hearing here. Sen. Grassley’s questions start at 1:25:00 and Sen. Wyden’s questions start at 1:31:10.) They asked why the IRS seems to be ignoring that 2010 decision—United States v. Warshak—in most of the country, and advising its criminal investigative agents that emails stored on a server for more than 180 days can be obtained without a warrant. Surprisingly, Miller answered that the IRS follows Warshak across the country. That’s not what internal IRS documents and its public policy manual show, but if true it is welcome news. Importantly, Miller committed to clarify written IRS policy within 30 days to state that a warrant is always required.
Miller’s testimony leaves several important questions unanswered, however:
- Although Miller stated that the IRS Criminal Investigation unit obtains warrants for all emails, he did not discuss other forms of electronic communication such as text messages, instant messages, and direct messages on social media. Under the Fourth Amendment, a warrant should be required for those private communications as well.
- Miller stated that, to his knowledge, the IRS has not obtained electronic communications without a warrant in the past. But an internal IRS Chief Counsel Advice memorandum from 2011 reveals that, months after Warshak, IRS investigative agents requested emails from an internet service provider without a warrant at least once. The IRS should explain when it started following Warshak nationally, and whether it has sought or obtained emails without a warrant in the past.
We applaud Senators Grassley and Wyden for quickly taking up this important issue and getting an answer from the IRS, less than a week after the ACLU released the IRS documents. But while the IRS’s apparent change of policy is a step in the right direction, there is more for Congress to do. The current IRS policy manual relies on the outdated Electronic Communications Privacy Act (ECPA), which only requires a warrant for some emails and other electronic communications. In order to uniformly protect the privacy of Americans’ private communications, lawmakers must update ECPA to require a warrant for the contents of all electronic communications, regardless of age or other factors. Strong reform legislation has been introduced by a bipartisan group of sponsors, and is starting to make its way through the legislative process. Follow this link to urge Congress to modernize our electronic privacy law and close the loophole that’s letting the government access email and other electronic communications without a warrant.
Related article
- New Documents Suggest IRS Reads Emails Without a Warrant (alethonews.wordpress.com)
Mom Says DC Cop Assaulted Little Kid
By IULIA FILIP | Courthouse News | April 15, 2013
WASHINGTON – A police officer slammed a 10-year-old student’s head on a table, concussing him, while talking to students about “behaving in class,” the boy’s mother claims in court.
Chante Price sued Metropolitan Police Officer David Bailey Jr. and the District of Columbia, in Federal Court.
She claims Bailey assaulted her son while the boy was discussing a book with a classmate, at Wilkinson Elementary School in Southeast Washington.
Moten Elementary students were temporarily assigned to Wilkinson because of renovations, Price says in the complaint. She claims Bailey’s assault gave her 80-lb., 4-foot 10-inch son headaches for two weeks and made him afraid to go to school.
“On April 19, 2012, T.P. was in music class,” the complaint states. “T.P.’s teacher sent him to the cafeteria because he wasn’t participating adequately in the class. In the cafeteria, he sat at a lunch table with a few other classmates who were also being disciplined. Officer Bailey was present in the cafeteria. There were no other adults in the immediate vicinity.
“On information and belief, Officer Bailey regularly stopped in Moten Elementary School at Wilkinson as part of his routine patrol.
“Officer Bailey lectured the children about behaving in class. T.P. quietly discussed the book he was reading with a classmate.
“Officer Bailey approached T.P. and said, ‘Stop playing with me.’ T.P. responded that he was ‘not playing.’ Officer Bailey grabbed T.P. by the back of his head and slammed T.P.’s head forward into the table. Officer Bailey then grabbed T.P. by the shirt and forcefully lifted him off his chair. Officer Bailey threatened, ‘Play with me again, I’ll take you to 7D [the Seventh District police station].’ Officer Bailey dropped T.P. back onto his chair. (Brackets in complaint).
“T.P.’s teacher entered the cafeteria shortly after the incident, and T.P. reported the incident to her. The teacher responded that she could not do anything because Officer Bailey was a police officer.”
In addition to the concussion and headaches, the assault injured her son’s chest, Price says in the complaint.
She claims says her son now is afraid to go to school, where he “feels insecure in his classroom, even with a teacher present.”
Price says she filed a complaint against Bailey with the District of Columbia Office of Police Complaints, which is investigating, but the U.S. Attorney’s Office declined to prosecute Bailey.
D.C. Police Chief Cathy L. Lanier said in a statement that “police officers should be afforded due process just like anyone else, before judgment is passed. It should also be noted that criminal charges were declined in this matter.”
Price seeks compensatory and punitive damages for constitutional violations, assault and battery.
She is represented by Arthur Spitzer with the American Civil Liberties Union.
Related article
New Documents Suggest IRS Reads Emails Without a Warrant
By Nathan Freed Wessler | ACLU | April 10, 2013
Everyone knows the IRS is our nation’s tax collector, but it is also a law enforcement organization tasked with investigating criminal violations of the tax laws. New documents released to the ACLU under the Freedom of Information Act reveal that the IRS Criminal Tax Division has long taken the position that the IRS can read your emails without a warrant—a practice that one appeals court has said violates the Fourth Amendment (and we think most Americans would agree).
Last year, the ACLU sent a FOIA request to the IRS seeking records regarding whether it gets a warrant before reading people’s email, text messages and other private electronic communications. The IRS has now responded by sending us 247 pages of records describing the policies and practices of its criminal investigative arm when seeking the contents of emails and other electronic communications.
So does the IRS always get a warrant? Unfortunately, while the documents we have obtained do not answer this question point blank, they suggest otherwise. This question is too important for the IRS not to be completely forthright with the American public. The IRS should tell the public whether it always gets a warrant to access email and other private communications in the course of criminal investigations. And if the agency does not get a warrant, it should change its policy to always require one.
The IRS and Email: Reading Between the Lines
The federal law that governs law enforcement access to emails, the Electronic Communications Privacy Act (ECPA), is hopelessly outdated. It draws a distinction between email that is stored on an email provider’s server for 180 days or less, and email that is older or has been opened. The former requires a warrant; the latter does not. Luckily, the Fourth Amendment still protects against unreasonable searches by the government. Accordingly, in 2010 the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages.
However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.
The documents the ACLU obtained make clear that, before Warshak, it was the policy of the IRS to read people’s email without getting a warrant. Not only that, but the IRS believed that the Fourth Amendment did not apply to email at all. A 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel baldly asserts that “the Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server, because internet users do not have a reasonable expectation of privacy in such communications.” Again in 2010, a presentation by the IRS Office of Chief Counsel asserts that the “4th Amendment Does Not Protect Emails Stored on Server” and there is “No Privacy Expectation” in those emails.
Other older documents corroborate that the IRS did not get warrants across the board. For example, the 2009 edition of the Internal Revenue Manual (the official compilation of IRS policies and procedures) explains that “the government may obtain the contents of electronic communication that has been in storage for more than 180 days” without a warrant.
Then came Warshak, decided on December 14, 2010. The key question our FOIA request seeks to answer is whether the IRS’s policy changed after Warshak, which should have put the agency on notice that the Fourth Amendment does in fact protect the contents of emails. The first indication of the IRS’s position, from an email exchange in mid-January 2011, does not bode well. In an email titled “US v. Warshak,” an employee of the IRS Criminal Investigation unit asks two lawyers in the IRS Criminal Tax Division whether Warshak will have any effect on the IRS’s work. A Special Counsel in the Criminal Tax Division replies: “I have not heard anything related to this opinion. We have always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.” But that’s just the ECPA standard. The real question is whether the IRS is obtaining warrants for emails more than 180 days old. Shortly after Warshak, apparently it still was not.
The IRS had an opportunity to officially reconsider its position when it issued edits to the Internal Revenue Manual in March 2011. But its policy stayed the same: the Manual explained that under ECPA, “Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of a warrant. Again, no suggestion that the Fourth Amendment might require more.
The first indication that the IRS was considering the effect of Warshak came in an October 2011 IRS Chief Counsel Advice memorandum available on the IRS website but not provided in response to our FOIA request. An IRS employee sought guidance about whether it is proper to use an administrative summons, instead of a warrant, to obtain emails that are more than 180 days old. (The emails in question were located on an internet service provider’s (ISP) server somewhere in the territory covered by the Ninth Circuit Court of Appeals). The memo summarized the holding of Warshak and advised that “as a practical matter it would not be sensible” to seek older emails without a warrant. This is good advice, but the memo’s reasoning leaves much to be desired. The memo explained that Warshak applies only in the Sixth Circuit but that, because the ISP had informed the IRS that it did not intend to voluntarily comply with an administrative summons for emails, there was not “any reasonable possibility that the Service will be able to obtain the contents of this customer’s emails . . . without protracted litigation, if at all.” Any investigative leads contained in the emails would therefore be “stale” by the time the litigation could be concluded, making attempted warrantless access not worthwhile.
The memo misses another chance to declare that agents should obtain a warrant for emails because the Fourth Amendment requires it. Instead, the memo’s advice (which may not be used as precedent and is not binding in other IRS criminal investigations) is limited to situations in the Ninth Circuit where an ISP intends to challenge warrantless requests for emails. The IRS shouldn’t obey the Fourth Amendment only when it faces the inconvenience of protracted litigation; it should recognize that the Fourth Amendment requires warrants for the contents of emails at all times.
Finally, to the present: has the IRS’s position changed this tax season? Apparently not. The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days. Apparently the agency believes nothing of consequence has changed since ECPA was enacted in 1986, or the now-outdated Surveillance Handbook was published in 1994.
The IRS Owes the American Public an Explanation—and a Warrant Requirement
Let’s hope you never end up on the wrong end of an IRS criminal tax investigation. But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails. Until now, that hasn’t been the case. The IRS should let the American public know whether it obtains warrants across the board when accessing people’s email. And even more important, the IRS should formally amend its policies to require its agents to obtain warrants when seeking the contents of emails, without regard to their age.
(We also sent FOIA requests to the FBI and other components of the Department of Justice—we will be receiving records from those offices in the coming weeks).
Related articles
- Like rest of the feds, the IRS can get your e-mails with no problem (arstechnica.com)
- When a Secretive Stingray Cell Phone Tracking “Warrant” Isn’t a Warrant (alethonews.wordpress.com)
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From the Archives
Neocon Max Boot: Legal and illegal aliens need to enlist in the US army and die for Israel
By Jonas E. Alexis | Veterans Today | October 16, 2107
In 1973 Irving Kristol, the godfather of the Neoconservative movement, made a stunning statement which is still relevant to understanding the Israeli influence in US foreign policy. Kristol said:
“Senator McGovern is very sincere when he says that he will try to cut the military budget by 30%. And this is to drive a knife in the heart of Israel… Jews don’t like big military budgets. But it is now an interest of the Jews to have a large and powerful military establishment in the United States…
“American Jews who care about the survival of the state of Israel have to say, no, we don’t want to cut the military budget, it is important to keep that military budget big, so that we can defend Israel.”
Read the statement again very carefully. A big military budget, said Kristol, is only good for Israel, not America or much of the Western World. In other words, precious American soldiers who go to the Middle East to fight so-called terrorism are just working for Israel, not for America.
So, whenever the Neocons use words such as “democracy” or “freedom,” they are essentially conning decent Americans to support Israel’s perpetual wars. … continue
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