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The Oversold ‘USA Freedom Act’

By Norman Solomon | Consortium News | June 5, 2015

The morning after final passage of the USA Freedom Act, while some foes of mass surveillance were celebrating, Thomas Drake sounded decidedly glum. The new law, he told me, is “a new spy program.” It restarts some of the worst aspects of the Patriot Act and further codifies systematic violations of Fourth Amendment rights.

Later on Wednesday, here in Oslo as part of a “Stand Up For Truth” tour, Drake warned at a public forum that “national security” has become “the new state religion.” Meanwhile, his Twitter messages were calling the USA Freedom Act an “itty-bitty step” — and a “stop/restart kabuki shell game” that “starts w/ restarting bulk collection of phone records.”

That downbeat appraisal of the USA Freedom Act should give pause to its celebrants. Drake is a former senior executive of the National Security Agency — and a whistleblower who endured prosecution and faced decades in prison for daring to speak truthfully about NSA activities. He ran afoul of vindictive authorities because he refused to go along with the NSA’s massive surveillance program after 9/11.

Drake understands how the NSA operates from the highest strategic levels. He notes a telling fact that has gone virtually unacknowledged by anti-surveillance boosters of the USA Freedom Act: “NSA approved.” So, of course, did the top purveyor of mendacious claims about the U.S. government’s surveillance programs — President Barack Obama — who eagerly signed the “USA Freedom” bill into law just hours after the Senate passed it.

A comparable guardian of our rights, House Speaker John Boehner, crowed: “This legislation is critical to keeping Americans safe from terrorism and protecting their civil liberties.”

While some organizations with civil-liberties credentials have responded to the USA Freedom Act by popping open champagne bottles at various decibels, more sober assessments have also been heard. Just after senators approved the bill and sent it to the president, Demand Progress issued a statement pointing out: “The Senate just voted to reinstitute certain lapsed surveillance authorities — and that means that USA Freedom actually made Americans less free.”

Another astute assessment came from CREDO, saying that Congress had just created “sweeping new authorities for the government to conduct unconstitutional mass surveillance of Americans.”

As it happened, the President signed the USA Freedom Act into law while four U.S. “national security” whistleblowers — Drake as well as Coleen Rowley (FBI), Jesselyn Radack (Justice Department) and Daniel Ellsberg (Pentagon Papers) — were partway through a “Stand Up For Truth” speaking tour from London to Oslo toStockholm to Berlin. Traveling as part of the tour, I’ve been struck by the intensity of interest from audiences in the countries we’ve already visited — Great Britain and Norway — where governments have moved to worsen repressive policies for mass surveillance.

Photo of (left to right) Kirk Wiebe, Coleen Rowley, Raymond McGovern, Daniel Ellsberg, William Binney, Jesselyn Radack, and Thomas Drake by Kathleen McClellan (@McClellanKM) via Twitter

Photo of (left to right) Kirk Wiebe, Coleen Rowley, Raymond McGovern, Daniel Ellsberg, William Binney, Jesselyn Radack, and Thomas Drake by Kathleen McClellan (@McClellanKM) via Twitter

Right now, many people in Europe and elsewhere who care about civil liberties and want true press freedom are looking at the United States: to understand what an aroused citizenry might be able to accomplish, seeking to roll back a dangerous accumulation of power by an ostensibly democratic government. Let’s not unwittingly deceive them — or ourselves — about how much ground the U.S. surveillance state has lost so far.

June 5, 2015 Posted by | Civil Liberties, Deception, Progressive Hypocrite | , , , , , | 1 Comment

Five Reasons Why the Courts Aren’t Enough to Ensure Drone Privacy

By Jay Stanley  | ACLU | March 15, 2013

Yesterday the drone regulation bill in the Washington state legislature died, having failed to meet the cutoff date for moving to the House floor. Although our lobbyist there thought the bill would have passed both houses had the Democratic leadership allowed it to get there, they did not. Boeing lobbied against the bill, as did law enforcement.

One of the arguments presented by opponents, our Washington state lobbyist Shankar Narayan reports, was the claim that no regulations are needed for drones because we ought to let the courts work out the privacy issues surounding drones and deal with any abuses that arise. I have also heard spokespeople for the drone industry association, the AUVSI, making this argument lately. It seems to be emerging as a primary argument of drone-legislation opponents.

This is a weak argument. Let me briefly give five reasons why:

  1. There is no reason to wait for abuses to happen when they are easily foreseeable. When you put an enormously powerful surveillance technology in the hands of the police and do not place any restrictions on its use, it will be abused, sooner or later, in ways illegal (i.e. by bad apples) and legal (i.e. through officially approved policies that nonetheless violate our Constitution and/or values). Why wait, when we can prevent them before they take place and spare their victims the grief?
  1. The legal system has always been very slow to adapt to new technology. For example, it took the Supreme Court 40 years to apply the Fourth Amendment to telephone calls. At first the court found in a 1928 decision that because telephone surveillance did not require entering the home, the conversations that travel over telephone wires are not protected. It was not until 1967 that this literal-minded hairsplitting about “constitutionally protected areas” was overturned (with the court declaring that the Constitution “protects people, not places”). Today, technology is moving far faster than it did in the telephone era—but the gears of justice turn just as slowly as they ever have (and maybe slower).
  1. There are many uncertainties about how our Constitution will be applied by the courts to aerial surveillance. Just as the new technology of the telephone broke the Supreme Court’s older categories of understanding, so too will drones with all their new capabilities bring up new situations that will not fit neatly within existing jurisprudential categories of analysis. For example, how will the courts view the use of drones for routine location tracking? The Supreme Court started to grapple with such questions in its recent decision in the Jones GPS case, but it is far from clear what the ultimate resolution will be. The Supreme Court has ruled before that the Fourth Amendment provides no protection from aerial surveillance, even in one’s backyard surrounded by a high fence, and while the new factors that drones bring to the equation could shift that judgment, we cannot be certain. Legislators should not sit around waiting for cases to come before the courts; they should act to preserve our values now.
  1. Legislatures often set rules even when the Constitution would seem to cover something. To take just one example: after the Supreme Court issued that 1967 ruling that a warrant was needed to tap someone’s phone, Congress went on to enact detailed standards the government had to follow before it could do so. What it did not do was throw its hands up and say “the court has ruled, if there are any further abuses we can let the courts take care of them.”
  1. Our courts often defer to the judgments of elected bodies. While the courts’ role is to step in and protect fundamental rights when they are threatened by the majority, they normally show great deference toward the judgments of elected representatives of the people. And for good reason—we live in a democracy, and unless fundamental rights are at stake decisions should be made by our democratic representatives. A legislature acting to protect fundamental rights such as privacy does not threaten such rights, and there is no reason why elected representatives shouldn’t act to protect our fundamental values if they feel that the citizens in their districts want them to.

Let’s hope that state legislators in other states don’t fall for this line of argument.

March 15, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , | Comments Off on Five Reasons Why the Courts Aren’t Enough to Ensure Drone Privacy

Google Releases Transparency Report Showing US Surveillance Requests Up 33% in the Last Year

Two Out of Every Three US Demands to Google Come Without A Warrant

By Trevor Timm | Electronic Frontier Foundation | January 23, 2013

This morning, Google released their semi-annual transparency report, and once again, it revealed a troubling trend: Internet surveillance around the world continues to rise, with the United States leading the way in demands for user data.

Google received over 21,000 requests for data on over 33,000 users in the last six months from governments around the world, a 70% increase since Google started releasing numbers in 2010. The United States accounted for almost 40% the total requests (8,438) and the number of users (14,791). The total numbers in the US for 2012 amounted to a 33% increase from 2011. And while Google only complied with two-thirds of the total requests globally, they complied with 88% of the requests in the United States.

Admirably, Google expanded their transparency report this time around, providing more detailed information about what kind of requests they get from the US government—specifically the type of requests they get under the main email privacy law in the US, the Electronic Communications Privacy Act (ECPA).

EFF has long criticized ECPA for not providing email with the same warrant protection as the Fourth Amendment gives to physical letters and phone calls. The Justice Department believes that it doesn’t need a warrant for emails over 180 days.  Google’s lawyers, to their credit, have criticized the law as well, saying just this week, “our view is that [ECPA] is out of compliance with the Fourth Amendment because the government can call for the production of your data without a search warrant.”

January 24, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , | 1 Comment

Ninth Circuit Gives the A-OK For Warrantless Home Video Surveillance

By Hanni Fakhoury | EFF | November 29, 2012

Can law enforcement enter your house and use a secret video camera to record the intimate details inside? On Tuesday, the Ninth Circuit Court of Appeals unfortunately answered that question with “yes.”

U.S. Fish and Wildlife agents suspected Ricky Wahchumwah of selling bald and gold eagle feathers and pelts in violation of federal law. Equipped with a small hidden video camera on his clothes, a Wildlife agent went to Wahchumwah’s house and feigned interest in buying feathers and pelts. Unsurprisingly, the agent did not have a search warrant. Wahchumwah moved to suppress the video as an unreasonable search under the Fourth Amendment, but the trial court denied his motion. On appeal before the Ninth Circuit, we filed an amicus brief in support of Wahchumwah. We highlighted the Supreme Court’s January 2012 decision in United States v. Jones — which held that law enforcement’s installation of a GPS device onto a car was a “search” under the Fourth Amendment — and specifically focused on the concurring opinions of Justices Alito and Sotomayor, who were worried about the power of technology to eradicate privacy.

In our brief we argued that although a person may reveal small bits of information publicly or to a house guest, technology that allows the government to aggregate that data in ways that were impractical in the past means that greater judicial supervision and oversight is necessary. After all, a video camera can capture far more detail than the human eye and is specifically designed to allow the government to record, save and review details for another day, bypassing the human mind’s tendency to forget. That means police need a search warrant to engage in the type of invasive surveillance they did in Wahchumwah’s house.

Unconvinced, the Ninth Circuit instead relied on a case from 1966, Hoffa v. United States, ruling that Wahchumwah forfeited his privacy interest when he “voluntarily” revealed the interior of his home to the undercover agent. But its conclusion contradicts not only the Supreme Court’s decision in Jones, but also earlier Ninth Circuit caselaw as well.

In Jones, the Supreme Court made clear that a law enforcement trespass onto private property for the purpose of obtaining information was a “search” under the Fourth Amendment. Under common law, a defendant was not liable for trespass if their entry was authorized. But the Ninth Circuit previously made clear in Theofel v. Farey-Jones that a person’s consent to a trespass is ineffective if they’re “mistaken as to the nature and quality of the invasion intended.” In fact, Theofel cited another Ninth Circuit case where the court found a “police officer who, invited into a home, conceals a recording device for the media” to be a trespasser.

What that means here is that when the undercover agent concealed his identity and purpose, making Wahchumwah “mistaken as to the nature and quality” of the home visit, the government trespassed onto Wahchumwah’s property. Since that trespass was done for the purpose of obtaining information — to get evidence of bald and gold eagle feather and pelt sales — the government “searched” Wahchumwah’s home. And it needed a warrant to do that; without one, the search was unconstitutional.

Its troubling that the Ninth Circuit did not see it this way (nor are they the only one). Because the sad truth is that as technology continues to advance, surveillance becomes “voluntary” only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And we’re entering an age where criminal suspicions is no longer even necessary. Whether you’re calling a friend’s stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using license plate scanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come.

The only way to avoid pervasive law enforcement monitoring shouldn’t be to make the choice to live under a rock in the wilderness somewhere. Instead, the Fourth Amendment means today what it meant in 1787: that the “right of the people to be secure in their persons, houses, papers, and effects” shouldn’t be violated unless the government comes back with a warrant.

November 30, 2012 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , | Comments Off on Ninth Circuit Gives the A-OK For Warrantless Home Video Surveillance

Time to Make Warrantless Home Video Surveillance Extinct

By Hanni Fakhoury | EFF | May 2, 2012

It seems that the government’s thirst for high tech surveillance can’t be quenched. First, came the NSA’s warrantless wiretap program. Then it was CISPA. Now, its warrantless video surveillance in the home. And just like we stood up against the NSA and CISPA, yesterday we told the Ninth Circuit Court of Appeals that invasive warrantless home video surveillance violates the Fourth Amendment.

Ricky Wahchumwah, a tribal member of the Yakima Nation, was suspected of selling bald and gold eagle feathers, as well as the feathers and pelts of other migratory birds, in violation of federal law. As part of its investigation, an undercover agent from the U.S. Fish and Wildlife Service went to Wahchumwah’s house, pretending to be interested in buying feathers and pelts. Wahchumwah let him in his house, not knowing that the agent was secretly recording everything with a tiny video camera hidden in his clothes. The agent proceeded to capture two hours of video of Wachumwah’s home, including interactions between Wachumwah and his partner and children, and was even left alone by Wachumwah for periods of time, who did not suspect he was being recorded.

Charged with violating the Bald and Golden Eagle Protection Act and the Lacey Act, Wahchumwah moved to suppress the video evidence as an unreasonable search under the Fourth Amendment. The trial judge denied his motion, ruling that since Wahchumwah let the agent into his house, and the agent could testify to everything he saw in the house, Wahchumwah had no expectation of privacy. Wahchumwah appealed this decision to the Ninth Circuit, and we filed an amicus brief supporting him.

As we explain in our brief, a video camera can capture far more detail than a human eye. And unlike the human mind, a video camera doesn’t forget. After all, if an officer’s observations were sufficient, there would be no need for the video camera in the first place. Building on the Supreme Court’s landmark decision in United States v. Jones, which ruled the Fourth Amendment prohibited the warrantless use of GPS surveillance to monitor a person’s car on public roads for 28 days, we make two main arguments.

First, the initial appellate opinion in Jones issued by the D.C. Circuit (at the time called United States v. Maynard) explained that although a person may reveal discrete parts of his movements when driving in public, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.” While the Supreme Court affirmed the D.C. Circuit under a trespass theory instead, the D.C. Circuit’s astute point applies equally to video surveillance. Even if Wahchumwah permitted the undercover agent into his home, it would be extremely unlikely that Wahchumwah, or anyone else, would expect that his house guest was secretly video recording every little detail. And that meant even if Wahchumwah consented to the agent entering his house, he certainly did not consent to secret video surveillance.

Second, as Justice Sotomayor said in her concurring opinion in Jones, the fact that technology allows the government to cheaply and efficiently aggregate data in ways that were impractical in the past has the potential to “alter the relationship between citizen and government in a way that is inimical to democratic society.” While it is technically possible to follow someone for 28 days continuously, it is expensive and difficult. GPS technology now allows the government to track someone wherever they go and as long as they want, all from the comforts of the police station. A video camera does the same thing. Sure, its possible for someone to enter a house and write down everything they remembered seeing hours later when they leave the house. But a video camera is capable of aggregating an enormous amount of data that would be difficult for human senses to replicate. When a video camera secretly enters the home, it can capture things like the mail on your coffee table, the books on a shelf, or the pictures on your wall. And the whole point of a camera is to record and save for another day, allowing the government to not have to rely on the human mind’s tendency to forget. It can rewind again and again to examine every minute detail of the house.

In the past, such intensive video surveillance was reserved for serious, violent crimes. Today, its being used by Fish and Wildlife officers to investigate misdemeanors. A search warrant requirement strikes the right balance between the government’s need to investigate crime, and the public’s right to privacy — particularly in the home, the most private of all places. Hopefully, the Ninth Circuit will reverse the trial court, and eradicate this invasive warrantless surveillance once and for all.

Attached Documents

EFF Wahchumwah Amicus Brief

May 2, 2012 Posted by | Civil Liberties, Full Spectrum Dominance, Wars for Israel | , , , | Comments Off on Time to Make Warrantless Home Video Surveillance Extinct