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Suing to Defend Americans’ Right to Take Pictures in Public

By Julia Harumi Mass | ACLU | July 10, 2014

What does an 86-year-old art photographer have in common with a young man with a video game habit?

Not just a proclivity for perfectly innocuous hobbies, unfortunately. These days, engaging in either activity can get the FBI on your case.

Today, the ACLU and our partners at Advancing Justice–Asian Law Caucus and Bingham McCutchen are taking the federal government to court over a surveillance program that targets people even if they are engaging in entirely innocent and constitutionally protected activity, and encourages religious profiling. As if that weren’t enough, the Suspicious Activity Reporting (SAR) program also violates the government’s own rules for the collection of criminal intelligence.

James Prigoff is one of our clients. He is 86 years old, and a renowned photographer of public art. He has lectured at universities and had his work exhibited at museums around the world. In 2004, he was stopped by security guards in Boston while attempting to take photos of a famous piece of public art called the Rainbow Swash, which is painted on a natural gas storage tank. Several months later, the FBI tracked him down at his house in Sacramento to question him about his activities in Boston.

Tariq Razak, a young scientist and Pakistani-American, is another plaintiff in our case. He became the subject of a SAR after a visit to a train depot in Santa Ana, California, where he had an appointment with the county employment resource center. He walked around the depot looking for the resource center, and his mother, who was wearing a hijab, accompanied him. He later discovered that this conduct led to a SAR describing him as “a male of Middle Eastern descent” who was suspicious because he was “constantly surveying all areas of the facility” and because he met up with a “female in a white burka head dress.”

Our other clients were also unfairly targeted, falling under government scrutiny for activities ranging from buying computers to playing video games. Several of them were profiled due to their perceived religious beliefs.

These “suspicious activities” may be absurd, but there’s nothing funny about the program. The Department of Justice (DOJ) and the Information Sharing Environment, a post-9/11 agency tasked with coordinating national security intelligence-sharing, have adopted lax standards for what constitutes “suspicious activity.” These standards violate a DOJ regulation from 1978 that prohibits law enforcement from sharing “intelligence” about individuals unless the information is supported by reasonable suspicion of criminal activity. The 1978 regulation was adopted in the wake of prior domestic surveillance abuses.

Predictably, eschewing those protections has turned back the clock. The government is ignoring sensible limits on criminal intelligence collection and actively encouraging not just law enforcement, but also private security guards, shopkeepers, hotel owners, and even neighbors, to collect and share information about innocent conduct.

For example:

  • Hotels are advised to be on the lookout for guests who “request specific room assignments or locations” or use “payphones for outgoing calls.”
  • Rental car companies are instructed that “providing multiple names” on rental paperwork is to be “considered suspicious.”
  • Hobby shops should be wary of customers with an “unusual interest” in remote-controlled aircraft and those who pay in cash.
  • The general public is cautioned to report “unusual activity,” including “people acting suspiciously” and “people in places where they do not belong.”

If “acting suspiciously” or being somewhere someone thinks you don’t “belong” is enough to put people into federal counter-terrorism databases, it’s no wonder the databases are full of irrelevant information and reports targeting Muslims, South Asians, and Arab Americans. As you may remember from last year, actual SARs we obtained through Public Records Act requests include reports with subjects like “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.” It’s also no wonder law enforcement experts criticize the SAR program for “flooding” law enforcement with “white noise.”

Today our clients are challenging a program through which innocuous and even constitutionally protected activity is being reported as “suspicious” and leading to federal law enforcement scrutiny.  This program not only violates federal privacy protections for “intelligence” sharing. It encourages a culture of fear and distrust, undermining our freedom with no known benefit to our safety.

Click here for more on our plaintiffs.

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July 10, 2014 Posted by | Civil Liberties, Islamophobia | , , , | Leave a comment

AT&T’s First Transparency Report Reveals Warrantless Demands for Customer Data

By Matthew Cagle | ACLU | February 19, 2014

In the wake of our shareholder advocacy, AT&T has now joined Verizon and released its first transparency report. AT&T’s report shows how federal, state, and local governments have requested large volumes of customer information, typically without a warrant. While we welcome AT&T’s move, the American public remains in the dark about a lot of what’s happening behind the scenes. Greater transparency is still needed from AT&T and the federal government.

Here’s a breakdown of the many demands AT&T received in 2013. As we have long suspected, the vast majority of these demands lacked a warrant:

  • AT&T received 301,816 demands related to criminal and civil litigation. Only 16,685 of these demands included a warrant based on probable cause.
  • AT&T received 223,659 subpoenas for customer information. This is significantly more than the 164,184 subpoenas Verizon received during the same period.
  • AT&T received 37,839 demands for location information. At least 21,000 of these demands lacked a warrant. AT&T’s full report says a warrant is “almost always required to obtain real-time location information.”
  • AT&T also received 1,034 demands for “cell tower searches” last year, some of them compelling the company to identify the numbers of all phones that connected to a specific cell tower during a given period of time. Cell tower information is ripe for misuse—we know of at least one instance where a cell tower request was made for all phones within the vicinity of a planned labor protest.

AT&T also included information on national security requests (though, not the complete story):

  • AT&T reported receiving between 2,000 and 3,000 National Security Letters (NSLs) from the federal government for customer information including name, address, length of service, and toll billing records. NSLs do not require prior approval from courts and the government has been criticized for misusing them. 4,000 to 4,999 AT&T customers were affected by NSLs last year. Note: Verizon has not yet revealed how many customers were affected by the NSLs it received.
  • AT&T also released information about federal government demands for customer content under the Foreign Intelligence Surveillance Act (FISA), demands that may result in government access to the telephone and Internet communications of US citizens and persons abroad. For the first six months of 2013, AT&T received 0-999 requests for content that ultimately affected 35,000-35,999 customers. In fact, more AT&T customers were affected by FISA content requests in the first half of 2013 than the combined number of Facebook, Google, and Microsoft customers affected by the same sort of requests during that period.
  • Unfortunately, the report omits important information on the metadata that the government reportedly obtains from AT&T under the call records program (currently being challenged by the ACLU in federal court). Phone metadata includes the phone numbers of parties to a conversation, a call’s duration, and device identifiers—information that can paint a very detailed picture of private lives. We know that the government justifies its access to phone metadata with a section of the FISA law, yet AT&T’s report states that only 0-999 customers were affected by such “non-content” requests. On its own, this lack of detail misleads the millions of AT&T customers whose phone metadata may be subject to these demands.

In addition to a clearer explanation of national security requests, we hope that AT&T’s future reports will also address the following shortcomings:

  • The current report does not include the number of customers or individuals affected by all of the government demands. The company claims that it is “difficult” to tally this information.
  • The report does not describe statistics on how often AT&T complies with demands.
  • This report includes very limited information about demands from foreign governments.

AT&T’s transparency report, limited in what it reveals, also highlights just how essential it is for privacy laws to be updated in both the national security and law enforcement contexts. Technology has advanced exponentially and our privacy laws are still in the digital dark ages, enabling the government to engage in a largely unsupervised shopping spree of the personal data held by AT&T and other companies. This is why you should tell your member of Congress to support the USA Freedom Act and an update to the federal Electronic Communications Privacy Act. We also urge AT&T to play a larger role by pushing for greater transparency, including far more detail in its future reports, and advocating for stronger privacy protections.  

Matthew Cagle is a Volunteer Attorney for Technology and Civil Liberties with the ACLU of Northern California.

Copyright 2014 American Civil Liberties Union of Northern California
Reprinted with permission of the American Civil Liberties Union of Northern California http://www.aclunc.org
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February 21, 2014 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , , , | Leave a comment