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When a Secretive Stingray Cell Phone Tracking “Warrant” Isn’t a Warrant

By Hanni Fakhoury | EFF | March 28, 2013

An Arizona federal court this afternoon will be the battleground over the government’s use of a “Stingray” surveillance device in a closely watched criminal case, United States v. Rigmaiden. And in an important development, new documents revealed after an ACLU of Northern California Freedom of Information Act (FOIA) request should leave the government with some explaining to do.

“Stingray” is the brand name of an International Mobile Subscriber Identity locator, or “IMSI catcher.” A Stingray acts as a fake cell-phone tower, small enough to fit in a van, allowing the government to route all network traffic to the fake tower. We’ve warned that Stingrays are dangerous because they have the capability to obtain the contents of electronic and wire communications while necessarily sucking down data on scores of innocent people along the way.

The Fourth Amendment requires searches be “reasonable,” generally meaning they must be accompanied by a warrant. To get a warrant, the government must show there is probable cause to believe the place they want to search will have evidence of a crime. And it means the judge must ensure the warrant is “particular,” or limited to only allow searches into areas where the evidence is most likely to be found. The only way a judge can make these tough decisions is with the government being forthright about what it’s doing.

But when it comes to Stingrays the government has been extremely secretive about its use, withholding documents in FOIA requests, failing to explain (or even understand) the technology to a Texas federal judge and in Rigmaiden, misleading the court about the fact it’s even using one at all.

Daniel David Rigmaiden is charged with a variety of tax and wire fraud crimes. Hoping to pinpoint Rigmaiden’s precise location within an apartment complex, federal agents applied for an order requesting the court to order Verizon to help the agents pinpoint the physical location of a wireless broadband access card and cell phone they believed Rigmaiden was using. The order is clearly directed towards Verizon:

The Court therefore ORDERS, pursuant to Federal Rule of Criminal Procedure 41(b); Title 18, United States Code, Sections 2703 and 3117; and Title 28, United States Code, Section 1651, that Verizon Wireless, within ten (10) days of the signing of this Order and for a period not to exceed 30 days, unless extended by the Court, shall provide to agents of the FBI data and information obtained from the monitoring of transmissions related to the location of the Target Broadband Access Card/Cellular Telephone…

Ultimately, it turns out the government did not just get Verizon to give it the data. It also used a Stingray device to find Rigmaiden, sucking up loads of other data from other electronic devices in the complex as well, which it deleted.

When Rigmaiden filed a motion to suppress the Stingray evidence as a warrantless search in violation of the Fourth Amendment, the government responded that this order was a search warrant that authorized the government to use the Stingray. Together with the ACLU of Northern California and the ACLU, we filed an amicus brief in support of Rigmaiden, noting that this “order” wasn’t a search warrant because it was directed towards Verizon, made no mention of an IMSI catcher or Stingray and didn’t authorize the government—rather than Verizon—to do anything. Plus to the extent it captured loads of information from other people not suspected of criminal activity it was a “general warrant,” the precise evil the Fourth Amendment was designed to prevent.

The FOIA documents bolster our argument that this isn’t a warrant. The documents are a series of internal emails from DOJ attorneys in the United States Attorney’s Office for the Northern District of California, the district where the order in Rigmaiden’s case was issued. The emails make clear that U.S. Attorneys in the Northern California were using Stingrays but not informing magistrates of what exactly they were doing. And once the judges got wind of what was actually going on, they were none too pleased:

As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…

These emails, combined with the text of the disputed order itself, suggest agents obtained authorization to use a pen register without indicating they also planned to use a Stingray. Either at the time of the application or after the fact, the government attempted to transform that order into a warrant that authorized the use of a Stingray.

Judicial superivison of searches is most needed when the government uses new technologies to embark into new and unknown privacy intrusions. But when the government hides what it’s really doing, it removes this important check on government power. We hope the court sees its been duped, and makes clear to the government that honesty and a warrant are requirements to using a Stingray.

March 29, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , | Leave a comment

The Constitution Applies When the Government Bans Americans From the Skies

By Nusrat Choudhury & Hina Shamsi | ACLU | March 28, 2013

The government does not have the unchecked authority to place individuals on a secret blacklist without providing them any meaningful opportunity to object, the ACLU argued in a brief filed last Friday with the federal district court in Oregon.

We made the filing in Latif v. Holder, our lawsuit asserting that the government violated the Fifth Amendment due process rights of 13 Americans, including four military veterans, by placing them on the No Fly List and refusing to give them any after-the-fact explanation or a hearing at which they can clear their names.

Our brief highlighted the utter irrationality of the government’s No Fly List procedures. The plaintiffs in Latif all flew for years without any problems. But more than two years ago, they were suddenly branded as suspected terrorists based on secret evidence, publicly denied boarding on flights, and told by U.S. and airline officials that they were banned from flying perhaps forever. Each of them asked the government to remove them from the No Fly List through the only “redress” mechanism available—the Department of Homeland Security Traveler Redress Inquiry Program. But the government has refused to provide any explanation or basis for their inclusion in the list. Our clients have been stuck in limbo ever since.

We submitted evidence to the court showing that the No Fly List burdens our clients’ constitutionally protected liberties, with devastating consequences for their personal and professional lives. It deprives them of the ability to fly—an essential means of travel in modern life. It also stigmatizes them as suspected terrorists, although they have never been charged with any crime, let alone convicted of one.

Our brief argued that the Constitution’s core promise of procedural due process requires the government to provide at least some explanation and some hearing where Americans can defend themselves after it deprives them of their liberties. The government’s categorical refusal to provide either is unconstitutional. We explained:

Defendants’ refusal to provide the bare rudiments of due process stems from their embrace of an explicit policy—known as the “Glomar” policy—of refusing to confirm or deny any information concerning a person’s status on the No Fly List. The Glomar policy and Defendants’ inadequate process cannot be reconciled with governing due process doctrine. Courts routinely require notice and some form of hearing for much less severe deprivations of liberty than Plaintiffs have suffered. Thus, the government cannot suspend a student from school for ten days, or recover excess Social Security payments, or terminate state assistance for utility bills without some kind of notice and hearing.

In its own brief to the court defending its “redress” program, the government’s arguments boiled down to two sweeping—and extraordinary—claims. First, according to the government, the Constitution has nothing to say about the adequacy and fairness of the procedures the government provides Americans to challenge their inclusion on the No Fly List because “alternatives” to flying are available. We countered that argument in a separate brief (also filed on Friday) showing that the government relied on the wrong law, and by providing evidence confirming what is obvious: the No Fly List so severely restricts Americans’ ability to travel that it triggers due process rights. Not only does the list ban Americans from the skies, it even bars them from travel on boats. As a result, two of our clients have been effectively banned from traveling from the United States to be with their families in Ireland and Yemen.

The government’s second sweeping claim is that even confirming or denying No Fly List-status (much less actually providing notice of the reasons and basis for inclusion in the list) will cause a parade of national security horribles, including the disclosure of sensitive or classified information. Our brief, however, showed that this argument is based on a fiction: all of our clients already know they are on the No Fly list; they were each prevented from flying and explicitly told that they are on the list. We also pointed out that the mere possibility that sensitive national security information might be involved is no reason to categorically foreclose the hearings that due process requires.

Americans have a right to know what kind of “evidence” or innuendo is sufficient to land them on the No Fly List, and to have a hearing where they can defend themselves. Without this bare minimum, there is no meaningful check to correct the government’s mistakes or ensure that it uses the blacklisting power it claims fairly and appropriately. We are asking the court, therefore, to vindicate a basic yet fundamentally important proposition: a government black list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.

March 28, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Timeless or most popular | , , , , , , | Leave a comment

ACLU and CCR Comment on New York Times Article on Killing of Anwar Al-Aulaqi

ACLU | March 10, 2013

NEW YORK – The American Civil Liberties Union and the Center for Constitutional Rights issued the following statement in response to The New York Times article today detailing the U.S. government’s killings of three U.S. citizens:

“In anonymous assertions to The New York Times, current and former Obama administration officials seek to justify the killings of three U.S. citizens even as the administration fights hard to prevent any transparency or accountability for those killings in court. This is the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program, including its use against citizens.

“Government officials have made serious allegations against Anwar al-Aulaqi, but allegations are not evidence, and the whole point of the Constitution’s due process clause is that a court must distinguish between the two. If the government has evidence that Al-Aulaqi posed an imminent threat at the time it killed him, it should present that evidence to a court. Officials now also anonymously assert that Samir Khan’s killing was unintended and that the killing of 16-year-old Abdulrahman al-Aulaqi was a mistake, even though in court filings the Obama administration refuses to acknowledge any role in those killings.  In court filings made just last week, the government in essence argued, wrongly, that it has the authority to kill these three Americans without ever having to justify its actions under the Constitution in any courtroom.”

The ACLU and CCR are challenging the legality of the drone strike that killed Al-Aulaqi and Khan, as well as the separate strike that killed Al-Aulaqi’s 16-year-old son, Abdulrahman, in Yemen in September and October 2011.

The ACLU is also seeking disclosure of the legal memoranda written by the Department of Justice Office of Legal Counsel that provided justifications for the targeted killing of Al-Aulaqi, as well as records describing the factual basis for the killings of all three Americans, in a separate Freedom of Information Act lawsuit.

More information is at: www.aclu.org/targetedkilling and http://ccrjustice.org/targetedkillings

Related article

March 11, 2013 Posted by | Civil Liberties, Progressive Hypocrite, Timeless or most popular, War Crimes | , , , , , , | Leave a comment

Police militarization comes under nationwide investigation

RT | March 07, 2013

The American Civil Liberties Union has launched a campaign to investigate the growing trend of placing militarized police units in cities and towns across the country.

Doors busted down and windows smashed in. It’s becoming more of a regular occurrence each day in America as heavily-armed SWAT teams are being sent to the homes of suspects, often nonviolent ones, with enough firepower to take down a small army. In November, a botched raid ended with an 18-year-old girl in the hospital. Other incidents haven’t been exactly isolated either: guns get drawn on both grannies and grandkids alike, and equipping law enforcement officers with the means to make these nightmares become reality is easier by the day.

Police units across the US are becoming more like militaries than the serve-and-protect do-gooders that every young schoolboy once aspired to be. Not only are officers being trained to act with intensity as the number of these home invasions increase, but more and more police departments are being awarded arsenals of heavy-duty weaponry that are then being turned not onto members of al-Qaeda, but innocent children and unsuspecting house guests.

ACLU affiliates across the United States filed Freedom of Information Act requests with law enforcement agencies on Wednesday in hope of obtaining as much material as possible relevant to the ongoing expansion of small town police squads to heavily armed squadrons of soldiers.

“Federal funding in the billions of dollars has allowed state and local police departments to gain access to weapons and tactics created for overseas combat theaters – and yet very little is known about exactly how many police departments have military weapons and training, how militarized the police have become, and how extensively federal money is incentivizing this trend,” reads a statement released by the ACLU. “It’s time to understand the true scope of the militarization of policing in America and the impact it is having in our neighborhoods.”

On Wednesday, the ACLU issued a statement saying branches and affiliates in 23 states around the country filed over 255 public records requests only hours after the investigation was formally launched. The agencies hope that, by analyzing documents, can learn more about the extent that “federal funding and support has fueled the militarization of state and local police departments.”

“Equipping state and local law enforcement with military weapons and vehicles, military tactical training, and actual military assistance to conduct traditional law enforcement erodes civil liberties and encourages increasingly aggressive policing, particularly in poor neighborhoods and communities of color,” explains Kara Dansky, senior counsel for the ACLU’s Center for Justice. “We’ve seen examples of this in several localities, but we don’t know the dimensions of the problem.”

The ACLU says they want to know as much as possible about the type of training given to local SWAT officers, as well as information about the types of technology used by agencies around the country. Through the FOIA requests, the ACLU hopes to learn what types of weapons have been used, who they’ve been used on and what the end result has been. They also want documentation pertaining to the growing use of GPS technology, surveillance drones and any agreements between local police departments and the National Guard. The ACLU is also interested in any relationships between small law enforcement units and the US Departs of Defense and Homeland Security.

“The American people deserve to know how much our local police are using military weapons and tactics for everyday policing,” adds Allie Bohm, an advocacy and policy strategist for ACLU. “The militarization of local police is a threat to Americans’ right to live without fear of military-style intervention in their daily lives, and we need to make sure these resources and tactics are deployed only with rigorous oversight and strong legal protections.”

In 2011, the Department of Defense gave half-a-billion dollars’ worth of military machinery that would have been left otherwise unused to law enforcement agencies coast-to-coast. Among the items offered up to officers at no cost at all that year were grenade launchers, helicopters, military robots, M-16 assault rifles and armored vehicles. Before 2012 came to a close, figures for that year were expected to end with more than a 400 percent increase.

Peter Kraska, a criminologist at Eastern Kentucky University, tells journalist Radley Balko that while the militarization of police squads is indeed accelerating, it isn’t likely the ACLU will get all the answers they want.

“My experience is that they’ll have a very difficult time getting comprehensive, forthright information,” Kraska says. “If the goal here is to impose some transparency, you have to understand, that’s not what the SWAT industry wants.”

Related article

March 6, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Subjugation - Torture | , , , , , | Leave a comment

Homeland Security Approves Seizure of Cell Phones and Laptops within 100 Miles of Border; Report Remains Secret

By Matt Bewig | AllGov | February 11, 2013

  (graphic: ACLU)

Americans have no Fourth Amendment rights against unreasonable searches and seizures if they happen to be within 100 miles of the border, according to the “Executive Summary” of a still-secret report by the Department of Homeland Security (DHS). As the ACLU-created map above shows, nearly 2/3 of Americans (197 million people)—including the entire populations of Florida, Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Delaware, Maryland, Washington, DC, and Michigan—live in this “Constitution free” zone, as do the residents of the nation’s five most populous cities: New York, Los Angeles, Chicago, Houston and Philadelphia.

The secret report is DHS’s response (two years late) to critics of its policy, in place since at least 2008, of allowing border control agents, without a warrant or even a suspicion of wrongdoing, to search any travelers’ electronic devices (laptops, cell phones, tablets, cameras, etc.) and seize data they find. According to a Freedom of Information Act request (FOIA) filed three years ago by the ACLU, DHS subjected more than 6,500 travelers—nearly half of them U.S. citizens—to searches under this policy between October 2008 and June 2010.

The Executive Summary of the secret report, which DHS is allowing the public to see, sets forth its conclusions without even summarizing the reasoning underlying them. Thus it asserts 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,” but is silent on how DHS defines “civil rights/civil liberties benefits” or how it balances these against its institutional needs.

The ACLU, which has already filed an FOIA request demanding the full report, released a statement arguing that “allowing government agents to search through all of a traveler’s data without reasonable suspicion is completely incompatible with our fundamental rights: our Fourth Amendment right to privacy—and more specifically the right to be free from unreasonable searches—is implicated when the government can rummage through our computers and cell phones for no reason other than that we happen to have traveled abroad. Suspicionless searches also open the door to profiling based on perceived or actual race, ethnicity, or religion. And our First Amendment rights to free speech and free association are inhibited when agents at the border can target us for searches based on our exercise of those rights.”

To Learn More:

DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border (by David Kravets, Wired)

February 11, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | Leave a comment

U.S. Violating Human Rights of Children, Says U.N. Committee

By Allison Frankel | ACLU Human Rights Program  | February 6, 2013

The Obama Administration recently underwent its first U.N. treaty body review, and the resulting concluding observations made public yesterday should be a cause for alarm. The observations, issued by independent U.N. experts tasked with monitoring compliance with the international treaty on the rights of children in armed conflict (formally known as the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict or “OPAC”), paint a dark picture of the treatment of juveniles by the U.S. military in Afghanistan: one where hundreds of children have been killed in attacks and air strikes by U.S. military forces, and those responsible for the killings have not been held to account even as the number of children killed doubled from 2010 to 2011; where children under 18 languish in detention facilities without access to legal or full humanitarian assistance, or adequate resources to aid in their recovery and reintegration as required under international law. Some children were abused in U.S. detention facilities, and others are faced with the prospect of torture and ill-treatment if they are transferred to Afghan custody.

By ratifying OPAC in 2002, the U.S. committed to guaranteeing basic protections to children in armed conflict zones, and to submit periodic reports on the implementation of its treaty obligations to the U.N. Committee on the Rights of the Child. We wrote about the latest U.S. report, released in November, which revealed that over 200 children have been held in U.S. custody in Afghanistan since 2008, some for lengthy periods of time. During its review of the U.S. on January 28, the Committee posed critical questions about the treatment of children by the U.S. military and issued recommendations to remedy these human rights violations.

These recommendations include taking “concrete and firm precautionary measures [to] prevent indiscriminate use of force” particularly against children, and ensuring all allegations of unlawful use of force are “investigated in a transparent, timely and independent manner” and that “children and families victims of attacks and air strikes do always receive redress and compensation.” In regard to the detention of juveniles, the Committee urged the U.S. to ensure that all children under 18 are detained separately from adults and guaranteed access to free and independent legal assistance as well as an independent complaints mechanism. Importantly, considering the previous U.S. response to the Committee revealed that the average age of children detained by U.S. forces is only 16 years old and the average length of stay for juveniles in U.S. military custody has been approximately one year, the Committee recommended children be detained only “as measures of last resort and for the shortest possible period of time and that in all cases alternatives to detention are given priority.”

The Committee also stressed that allegations of torture and other forms of mistreatment must be investigated and the perpetrators brought to justice, and that no child should be transferred to Afghan custody if “there are substantial grounds for the danger of being subject to torture and ill treatment.” The Committee specifically mentioned the case of Omar Kadr, a former child soldier who was detained by U.S. forces at the age of 15 and was subjected to torture and a systematic program of harsh and highly coercive interrogations at the American prisons at Guantánamo Bay and Bagram.

The U.S. government’s human rights obligations do not end with the release of a periodic report or the completion of a treaty body review. In order to give meaning to the words of the children’s rights treaty, the U.S. must work diligently to implement the Committee’s recommendations and ensure that our military forces, intelligence agents, and other government officials treat children in the war zones of Afghanistan and elsewhere in accordance with international law.

Related article

February 6, 2013 Posted by | Subjugation - Torture, War Crimes | , , , , , | Leave a comment

Justice Department White Paper Details Rationale for Targeted Killing of Americans

Document Outlines Government’s Claimed Authority to Kill American Citizens Outside Combat Zones

ACLU | February 4, 2013

NEW YORK – A Justice Department white paper argues that the government has the right to carry out the extrajudicial killing of American citizens that the government believes are affiliated with a terrorist organization, according to the document posted tonight on NBCNews.com. The white paper summarizes a memo prepared in 2010 by the Justice Department’s Office of Legal Counsel (OLC) to justify the targeting of U.S. citizen Anwar Al-Awlaki.

“This is a profoundly disturbing document, and it’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority – the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact,” said Hina Shamsi, director of the ACLU’s National Security Project.

“But this briefing paper is not a substitute for the 50-page legal memo on which it’s based. When the executive branch seeks to give itself the unilateral authority to kill its own citizens, a summary of its argument is no substitute for the argument itself. Among other things, we need to know if the limits the executive purports to impose on its killing authority are as loosely defined as in this summary, because if they are, they ultimately mean little. President Obama rightly released the Bush-era OLC torture memos and he should now hold his own administration to the same standard by releasing its killing memo.”

Tomorrow, the American Civil Liberties Union and the Center for Constitutional Rights will file a court brief arguing against the government’s attempt to dismiss their lawsuit challenging the targeted killing of Al-Awlaki and two other Americans in Yemen in 2011, Al-Awlaki’s 16-year-old son Abdulrahman and Samir Khan.

The OLC memo summarized by the white paper is one of the documents sought by the ACLU’s pending Freedom of Information Act lawsuit. That case was dismissed last month by a federal judge in New York, and last Friday the ACLU filed a notice of appeal. The government argued that the requested documents cannot be released, despite the fact that government officials have talked publicly on numerous occasions about Al-Awlaki’s killing and the targeted killing program in general.

The D.C. Circuit Court of Appeals is currently considering another FOIA lawsuit filed by the ACLU seeking other information on the U.S. targeted killing program, including its legal basis, scope, and number of civilian casualties caused by drone strikes. The court heard oral argument in September.

An in-depth analysis of the DOJ white paper in a blog post written by ACLU Deputy Legal Director Jameel Jaffer is at:
www.aclu.org/blog/national-security/justice-department-white-paper-details-rationale-targeted-killing-americans

Information on the ACLU’s targeted killing lawsuits is at:
www.aclu.org/national-security/targeted-killings

Related articles

February 5, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | Leave a comment

TSA Once Again Considering Using Commercial Data To Profile Passengers

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project | January 11, 2013

The TSA has issued a “Market Research Announcement” in which the agency expresses a desire to expand its Pre-Check whitelist program by allowing private companies to carry out risk analysis of Americans that would determine whether they are “trusted” enough to participate in the trusted traveler program. This would be a major step toward turning the agency’s Pre-Check whitelist into the insidious kind of passenger profiling system that was proposed under the Bush Administration in the wake of 9/11, and a confirmation of our longstanding warnings that the logic of the risk-assessment approach to security will drive the government toward the use of more and more data on individuals. It would be the most significant of the new initiatives the TSA is looking at this year.

Currently, under Pre-Check, travelers who have attained a certain level within the frequent flier programs of six airlines can apply for the program by providing the government with certain information and, if they are accepted, receive access to expedited security lines. Department of Defense personnel and those with certain security clearances may now also join—and future expansions are inevitable. Although it is currently limited in scope, we have been warning that this kind of program points us down the road of engaging in background checks and discriminatory profiling of passengers. The concept raises knotty questions about fairness; we don’t know who is approved for this program and who is rejected, and based on what data, or what criteria for evaluating that data.

Defenders of Pre-Check point out that it is voluntary. However, as the agency explicitly states in this new document, “TSA desires to maximize appropriate participation in expedited screening initiatives.” In short, it hopes to lighten the screening load as much as possible by enrolling as many people as it can in Pre-Check. That means that ultimately, we face the prospect of a two-class airline security system, or even a system in which simply everyone has a Pre-Check ID, and the hapless group who can’t get one become a security underclass. Then the Pre-Check is adopted for all kinds of other purposes by piggybacking organizations, and like a “voluntary” credit card, it becomes impossible to fully participate in American life without one, and those who are shut out—and they won’t know why—face all kinds of obstacles and disadvantages.

As I discussed in this post, the Bush program, called CAPPS II, would have tapped into commercial data sources to perform background checks on every air passenger, and crunched that data to produce a profile of each traveler’s “risk to aviation.” The initial vision seemed to be to measure individuals’ “rootedness in their community,” measuring such things as how long a person has lived at their current address, held their current job, held a credit rating, etc. Among the numerous problems with this concept, it would have been enormously discriminatory in its impact (African-Americans, for example, tend to move more often than whites), and would have been grossly ineffective in spotting terrorists. (As Bruce Schneier has long pointed out, the danger is that to the extent you exempt some groups from security measures, you open up a pathway for terrorists to join or recruit their way into the program.)

We and others fought this terrible idea, and over several years of battles in Congress and the media, it was renamed “Secure Flight” and basically reduced to watch list checks. A victory of sorts—although the watch list system underpinning Secure Flight continues to be a mess.

Now it is clear that our concerns about Pre-Check sliding back towards some kind of CAPPS II-like profiling system have been warranted. In particular, the agency appears never to have lost its fixation with partnering with private-sector data aggregators to evaluate American citizens. The TSA writes:

TSA is particularly interested in techniques that … use non-governmental data elements to generate an assessment of the risk to the aviation transportation system that may be posed by a specific individual, and to communicate the identity of persons who have successfully passed this risk based assessment to TSA’s Secure Flight.

As I understand it, the concept here is that a company such as a data broker would sift through the enormous volumes of data they store on Americans and come up with a proposed algorithm for judging “the risk to the aviation transportation system” of any given individual. TSA would examine that algorithm, and upon the agency’s approval, the company would be authorized to sell Pre-Check memberships using that algorithm applied to its own data.

For now, the TSA says it “is seeking white papers that successfully demonstrate sound, well-reasoned concepts … to identify ‘known travelers’ pre-screened to a high degree of confidence.” The agency says it wants to allow “entities latitude to do what makes the most sense for them”:

TSA will specify a few common core requirements for process and algorithm content, while encouraging innovation by allowing participating entities to include additional elements in their algorithms as they see fit (as long as they are legal). These hybrid algorithms would have to meet certain performance criteria, described below.

Those criteria include:

  • An enrollment process that is convenient and user friendly
  • A proposal that “presents an effective process for gathering required personal information from potentially large numbers of prospective enrollees”
  • Handling travelers’ personal information with various security and privacy safeguards
  • “Has identified and obtained access to specific sources of current, accurate, and complete non-Governmental data that can be used to support effective screening of prospective travelers”
  • An algorithm “that produces dependable results”

The agency outlines a three-phase process for turning these white papers into functioning part of our security system. Phase 1 (30 days) is selection of promising submissions, phase 2 (45-60 days) is prototype implementation, and phase 3 (4-6 months) will be live prototyping on actual passengers at an actual airport.

Major problems

Aside from the fundamental effectiveness questions of this concept, there are a number of major problems with it from a civil-liberties point of view:

  • Unfair effects. It is likely to have an unfair impact on the American public. As I mentioned above it could easily be discriminatory in its application, or otherwise unfair depending on the data sources used. For example, see this story about a man having problems with his credit score precisely because he had always been careful not to go into debt. The data aggregators are subject to no rules regarding data quality, and their databases are rife with errors, as are the credit ratings agencies’ (despite their being subject to some regulations).
  • Secrecy. We probably won’t even know about such unfair effects because the system will be wrapped in secrecy. The TSA’s document specifies that “The specific sources and types of information employed for pre-screening purposes under this initiative may not be publicly disclosed.” It also contains a long section specifying that any private partners of the TSA will be subject to the agency’s Sensitive Security Information (SSI) rules.
  • Private-sector delegation. Delegating security assessments to a private company raises significant issues. We have always believed that it’s a foolish idea to start building an algorithm-based system for “rating” Americans on their security “trustworthiness,” which is then used to curb people’s rights (such as the right to travel). If we must have such ratings performed, that would at least be an inherent law enforcement function. We shouldn’t have private, profit-oriented companies making those designations, any more than such companies should be deciding who to prosecute. Having private companies make the ratings, and the government acting upon them, may be pretty close to the worst of all worlds. In addition, much of the corporate world operates on relationships and favors—not to mention money; it’s not clear how the TSA would regulate these companies to ensure they won’t engage in corruption or abuse or systematic bias when deciding who can get a Pre-Check pass. Especially given that the TSA won’t routinely have access to the underlying data.
  • Access to data. However, the agency does state that while it won’t “generally” access the personal information about an individual used by a company, it may do so during audits. Also, the “results of the pre-screening process” will be shared with the TSA “upon request”; it’s not clear to me what the agency means by “results” here.

Ultimately, the core problem with Pre-Check remains: it is (as I said here) caught between two possibilities: collecting so little information that it’s useless as a security measure, or so much that it is scarily intrusive. The TSA wants to take a long stride toward the latter. True, by outsourcing the data-crunching function to a private company, the agency won’t be collecting the information itself. That certainly ameliorates some of the privacy problems with the concept—but if anything worsens the other concerns, such as fairness, accuracy, due process, and the role of for-profit companies in providing what are essential government functions. Thwarted in its efforts to tap private databases a decade ago, the agency seems to be edging back toward that concept via a classic Surveillance-Industrial Complex strategy.

January 14, 2013 Posted by | Civil Liberties, Timeless or most popular | , , , , , | Leave a comment

Terrorists and criminals: Documents prove FBI monitored OWS

RT | December 24, 2012

Newly obtained documents confirm that the Federal Bureau of Investigation was monitoring peaceful protesters with the Occupy Wall Street movement before the first OWS demonstrations even began.

Files uncovered this week by the Partnership for Civil Justice Fund (PCJF) through a Freedom of Information Act request reveals that the FBI was actively keeping an eye on activists across the United States since Occupy Wall Street was still in its preliminary planning stages.

Documents, only published over the weekend, show inner-office communiqué that confirms investigators were considering Occupy demonstrators in some instances as criminals and domestic terrorists.

Mara Verheyden-Hilliard, the executive director of the PCJF, writes in a statement this week that the initial 100-plus pages obtained through the FOIA request are “just the tip of the iceberg” of what’s expected to be a substantial trove of data proving that the FBI was actively monitoring activists.

The list of documents, says Verheyden-Hilliard, “is a window into the nationwide scope of the FBI’s surveillance, monitoring, and reporting on peaceful protestors organizing with the Occupy movement.”

“These documents show that the FBI and the Department of Homeland Security are treating protests against the corporate and banking structure of America as potential criminal and terrorist activity,” she writes. “These documents also show these federal agencies functioning as a de facto intelligence arm of Wall Street and Corporate America.”

Canada’s Adbusters magazine first published a call-for-action in June 2011 addressing what would become known months later as Occupy Wall Street. On September 12 of that year, activists from around the United States began to descend on Zuccotti Square in Lower Manhattan, and soon the movement spread across the rest of the United States and the world. Even before the first occupiers erected tents and organized actions against corporate greed and criminal police activity, though, the FBI was well involved in investigating the group.

“As early as August 19, 2011, the FBI in New York was meeting with the New York Stock Exchange to discuss the Occupy Wall Street protests that wouldn’t start for another month,” the PCJF writes. “By September, prior to the start of the OWS, the FBI was notifying businesses that they might be the focus of an OWS protest.”

In another document, the Indianapolis, Indiana division of the FBI released a “Potential Criminal Activity Alert” about the protests two days before they even started in New York, let alone spread to the Midwest.

In other locales across the country, the FBI alerted authorities to potential criminal and terrorism activity from the protesters and asked them to monitor the movement of the group.

The trove of information received through the FOIA requests is perhaps the most substantial proof so far that the FBI was thoroughly vested in treating Occupy Wall Street as a form of terrorism. It isn’t, however, the first evidence used to prove that peaceful protesters aligned with OWS were on the FBI’s radar: in September, the American Civil Liberties Union received documents obtained through their own FOIA request showing that Occupy activists in Northern California were routinely targeted by federal agents.

“Why does a political protest amount to a national security threat?” ACLU attorney Linda Lye asked at the time.

December 24, 2012 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , | Leave a comment

CIA Rendition & Torture Victim Wins European Human Rights Case

ACLU | December 13, 2012

NEW YORK ­– In a historic ruling, the European Court of Human Rights today condemned Macedonia’s illegal transfer of Khaled El-Masri into CIA custody and found that his abusive treatment at Macedonia’s airport by the U.S. rendition team “amounted to torture.” The court also found that his abduction and detention – including the time he was in U.S. custody – constituted “enforced disappearance” under international law.

“Today’s landmark decision is a stark reminder of America’s utter failure to hold its own officials accountable for serious violations of both U.S. and international law. Continued lack of accountability is turning the United States into an outlier among its European allies, which is an appalling outcome for a nation that prides itself as a global leader on the rule of law and human rights,” said Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program. “Today’s ruling makes it harder for the United States to continue burying its head in the sand and ignoring domestic and global calls for full accountability for torture. This remarkable decision will no doubt put greater pressure on European nations to fully account for their complicity in cooperating with the illegal CIA ‘extraordinary rendition’ program, and to hold responsible those who violated the human rights of El-Masri and those like him.”

El-Masri is a German citizen who in 2003 was mistaken for another person and abducted by Macedonian authorities at a border crossing and held incommunicado for 23 days. He was then handed over to CIA operatives who put him on a secret flight to a “black site” in Afghanistan where he was secretly held, tortured and abused for about four months.

The ACLU currently represents El-Masri in a case against the U.S. now being considered by the Inter-American Commission on Human Rights, and also represented him in a lawsuit in U.S. federal court, which was dismissed. His case before the ECHR was brought by the Open Society Justice Initiative.

In a unanimous decision awarding El-Masri 60,000 Euros, the European court said that the court “underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened… The concept of ‘State secrets’ has often been invoked to obstruct the search for the truth. State secret privilege was also asserted by the US government in the applicant’s case before the US courts.”

The court’s ruling is available at:

www.aclu.org/files/assets/el_masri_ruling.pdf

CONTACT: (212) 549-2666; media@aclu.org

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December 13, 2012 Posted by | Civil Liberties | , , , , , , | Leave a comment

Mother of American Torture Victim José Padilla Brings Case Before International Human Rights Tribunal

U.S. Courts Have Denied Recourse

ACLU | December 11, 2012

NEW YORK – The American Civil Liberties Union and Yale Law School’s Lowenstein International Human Rights Clinic today filed a petition against the United States with the Inter-American Commission on Human Rights (IAHCR) for the unlawful detention and torture of José Padilla, a U.S. citizen, whom the United States detained and interrogated for four years.

The petition was filed by Padilla’s mother, Estella Lebron, on her own and on her son’s behalf. Padilla and Lebron had previously filed federal lawsuits – since dismissed – against current and former government officials for their roles in Padilla’s torture and other abuse.

The petition is an international complaint asking the IACHR, which is an independent human rights body of the Organization of American States, to conduct a full investigation into the human rights violations suffered by Padilla; to find that his mistreatment violated the American Declaration of the Rights and Duties of Man; and to recommend that the United States publicly acknowledge the violations and apologize for its unlawful conduct.

“The U.S. justice system denied a day in court to a U.S. citizen who was arrested and then tortured on U.S. soil by his own government,” said Steven Watt, senior staff attorney with the ACLU Human Rights Program. “The U.S. has historically been a leader in ensuring access to justice for human rights violations around the world, but it has effectively closed the courtroom door to all victims and survivors of the Bush administration’s torture regime. Denied redress in U.S. courts, torture survivors like Padilla are now left with no choice but to turn to international justice.”

In 2002, President Bush declared Padilla an “enemy combatant” and ordered him to be placed in military custody. U.S. officials seized Padilla from a civilian jail in New York and secretly transported him to the Naval Consolidated Brig in Charleston, S.C., where they held him for 43 months without charge. Interrogators subjected Padilla to torture and other egregious forms of abuse, including forcing him into stress positions for hours on end, punching him, depriving him of sleep and threatening him with further torture, “extraordinary rendition” and death.

“For more than a decade, Estela Lebron has lived with the terrible knowledge that her own government tortured her son, but there has never been any official acknowledgement, let alone an apology,” said Alaina Varvaloucas, a student with Yale’s Lowenstein Clinic who worked on preparing the petition. “The pain and indignity of that betrayal continue to this day.”

For the first 21 months of his captivity, Padilla was held incommunicado, without access to lawyers and his family.

“No human being deserves what happened to our family, and I will continue to work for my son and for justice as long as I’m breathing. As a mother, I want to be sure this never happens to anyone else,” said Lebron. “This petition may be my last chance.”

Today’s petition filed with the IACHR is available at:

www.aclu.org/files/assets/iachr_padilla_petition.pdf

Information on the dismissed federal lawsuit against U.S. officials is available at:

www.aclu.org/national-security/padilla-v-rumsfeld

CONTACT: (212) 549-2666

December 11, 2012 Posted by | Civil Liberties, Deception, False Flag Terrorism, Subjugation - Torture, Timeless or most popular | , , , , , , | Leave a comment

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