Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.
U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.
“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”
The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.
Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.
After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.
Posts tagged ‘surveillance’
Every turn in the investigation that led to Petraeus's resignation perfectly illustrates the incredible and dangerous reach of the massive United States surveillance apparatus, which, through hundreds of billions of dollars in post-9/11 programs -- coupled with weakened privacy laws and lack of oversight -- has affected the civil liberties of every American for years. The only difference here is the victim of the surveillance state's reach was not a faceless American, but the head one of the agencies tasked to carry it out.....
It seems the deciding factor in opening the investigation was not the emails' content, but the fact that the FBI agent was friendly with Kelley. (Even more disturbing, the same FBI agent has now been accused of becoming "obsessed" with the Tampa socialite, sent shirtless pictures to her, and has been removed from the case.)...
One would assume, and hope, police have to get probable cause for all emails, just like they would for a physical letter or a phone call. But the law governing email -- the Electronic Communications Privacy Act (ECPA) -- doesn't have such requirements for emails more than 180 days old. Because ECPA was written in 1986, before the World Wide Web even existed, archived emails were an afterthought given the incredibly small storage space on email servers....
While these details may shock the average reader, these privacy-invasive tactics are used regularly by both federal and local law enforcement around the United States. In fact, as the New York Times reported, referring to Petraeus, "Law enforcement officials have said they used only ordinary methods in the case." The only difference here is the target was the director of the CIA and one of the most decorated soldiers in modern military history.
Electronic communication needs better Fourth Amendment protection.
By the way, another scandal here that interests me more than the sex thing is that the head of the CIA has such a terrible grasp on basic fieldcraft
Petraeus and Kelley were communicating not by sending each other emails, but using an old (and apparently ineffective) trick -- "used by terrorists and teenagers alike" -- of saving drafts in the draft folder of Gmail, thinking this was more private than if they sent them to each other. But as the ACLU's Chris Soghoian explained, this was not so
Forget about the economy -- libertarians expect Democrats to be horrible statists in economic matters. But we hope to get some protection of civil liberties in exchange. But Obama has been simply awful in this area as well -- prosecuting marijuana sellers that are legal under state law, claiming assassination powers, the drone war, wiretapping, failure to address gay marriage, etc.
Here is but one example - the Orwellian defense of warrantless wiretapping. You can't sue us unless we tell you there is a wiretap, and we are not going to tell you.
As part of its concerted campaign to prosecute whistleblowers and to classify state secrets, the Obama administration has taken a position in Clapper that makes the Bush administration pro-secrecy campaign seem pale in comparison: namely, that no one can challenge warrantless surveillance unless the government tells you in advance that you’re being surveilled—which national security interests prevent it from doing. When Bush administration offered milder versions of the same arguments, the civil liberties community rose up in protest. Verrilli, for his part, was met by vigorous skepticism from the Supreme Court’s liberal justices.
It’s unfortunate enough that the administration asked the Court to hear the surveillance case in the first place, after the U.S. Court of Appeals for the Second Circuit had ruledthat the plaintiffs —lawyers and human rights and media organizations whose work requires them to communicate with clients, sources, and victims of human rights abroad—had legal standing to bring the case. Although they couldn’t be 100 percent sure that their telephone communications were being monitored, the appellate held that there was a “realistic danger” that their telephone communications were being monitored under the FISA Amendments Act of 2008 (FAA), passed by Congress to codify some of the worst excesses of the Bush administration’s warrantless wiretapping program. This led the journalists and lawyers to suffer tangible injuries—such as having to fly to the Middle East to communicate with clients rather than talking by telephone, for example, or being more circumspect in talking to Middle Eastern sources, as journalists such as Naomi Klein and Chris Hedges alleged.
In his Supreme Court brief and in the oral argument yesterday, however, Verrilli alleged that these harms were too speculative to create legal standing to challenge the law, since the lawyers and journalists couldn’t be sure they were being surveilled under the FAA rather than under some other warrantless wiretapping authority. Essentially, the Obama administration was arguing that targets of surveillance could only challenge the law after they knew they were being surveilled, though the government would never tell them they were being surveilled before bringing a case against them.
I am sure we would all like a ruling that we cannot be sued unless we give the plaintiff permission to do so, essentially what the Obama Administration is claiming here.
Update: From the Washington Times:
Bloomberg News reported on October 17 that Attorney General Eric Holder “prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.” :
The Justice Department said that there are established avenues for government employees to follow if they want to report misdeeds. The agency “does not target whistle-blowers in leak cases or any other cases,” Dean Boyd, a department spokesman, said.“An individual in authorized possession of classified information has no authority or right to unilaterally determine that it should be made public or otherwise disclose it,” he said.
However, when leaks to the press benefit the administration, prosecutions from the Jusitce Department are absent. For example, AG Holder was not prosecuting anyone over who leaked information about the killing of Oasma bin Laden. The Justice Department has yet to charge anyone over leaking information regarding the U.S. involvement in cyberattacks on Iran as well as an al Qaida plan to blow up a U.S. bound airplane. In fact, the Justice Department ended up appointing one of two attorneys to the cyberattacks investigation who was an Obama donor.
Part of the problem is that if this (or any other) Administration has its way, information that embarrasses the Administration get's classified, on the dubious logic that embarrassing the Administration embarrasses America. With this definition, all whistle-blowing becomes "espionage".
Update 2: More on Wiretapping from the EFF
To the contrary, there’s no indication that the still-active warrantless wiretapping program—which includes a warrantless dragnet on millions of innocent Americans’ communications—has significantly changed from the day Obama took office. With regard to the FISA Amendments Act, the Obama Administration has actively opposed all proposed safeguards in Congress. All the while, his Administration has been even more aggressive than President Bush in trying to prevent warrantless wiretapping victims from having their day in court and hascontinued building the massive national security infrastructure needed to support it. ...
Some have suggested it’s possible when Obama said “safeguards” on the Daily Show, he is referring to some unspecified secret administrative rules he has put into place. Yet if these “safeguards” exist, they have been kept completely secret from the American public, and at the same, the administration is refusing to codify them into the law or create any visible chain of accountability if they are violated. But given the ample evidence of Constitutional violations since Obama took office (see: here, here, and here), these secret safeguards we don’t know exist are clearly inconsequential.
We expected Obama to be a dumpster fire on economic issues and commercial liberty. And he has been.
But here are two charts showing how the traditional libertarian choice in two-party electrions of "liberty in the bedroom or liberty in the boardroom" has broken down. First, Bush was a mess on economic issues. Now, Obama is a wreck on civil liberties issues. Here is use of domestic surveillance tools, many times without warrants:
And here are drone strike casualties:
This Administration has increased the frequency of drone strikes by a factor of 8 over George Bush. It has claimed that any civilian deaths from these strikes are combatant deaths because, well, civilians shouldn't have been hanging around near people we want to kill. The Administration has claimed the right to assassinate Americans without any sort of due process, continues rendition and indefinite detainment, and has ramped up Federal raids on medical marijuana dispensaries in places like California where they are legal under state law.
Update: While I was writing this, Ken at Popehat was saying something similar:
The United States government, under two opposed increasingly indistinguishable political parties, asserts the right to kill anyone on the face of the earth in the name of the War on Terror. It asserts the right todetain anyone on the face of the earth in the name of the War on Terror, and to do so based on undisclosed facts applied to undisclosed standards in undisclosed locations under undisclosed conditions for however long it wants, all without judicial review. It asserts the right to be free of lawsuits or other judicial proceedings that might reveal its secrets in the War on Terror. It asserts that the people it kills in drone strikes are either probably enemy combatants in the War on Terror or acceptable collateral damage. It asserts that increasing surveillance of Americans, increasing interception of Americans' communications, and increasingly intrusive security measuresare all required by the War on Terror.
But the War on Terror, unlike other wars, will last as long as the government says it will. And, as the MEK episode illustrates, the scope of the War on Terror — the very identity of the Terror we fight — is a subjective matter in the discretion of the government. The compelling need the government cites to do whatever it wants is itself defined by the government.
We're letting the government do that. We're putting up with it. We're even cheering it, because that's more comfortable than opposing it or thinking about how far it has gone.
Update 2: And let's not forget that whole transparency thing. The Obama Administration may be perhaps the worst Administration in decades in complying with FOIA requests for what should be public information.
President Obama will issue an executive order Monday that will allow U.S. officials for the first time to impose sanctions against foreign nationals found to have used new technologies, from cellphone tracking to Internet monitoring, to help carry out grave human rights abuses.
LOL, Foreign nationals identified by NSA communications monitoring as violating this order will be pinpointed by satellites and surveillance drones and hit with a cruise missile.
Hard to picture any American President in the last 20 years signing this with a straight face. Is there a Federal law enforcement agency or major police force in this country who is NOT violating this order, had it applied to American citizens?
Wiretaps and government surveillance is on the rise, and it has little to do with terrorism. The failed war on drugs continues to be the main excuse for assaults on privacy:
State and federal investigators obtained 3,194 wiretap orders in 2010, an increase of 34 percent over the previous year, and a whopping 168 percent increase over 2000. Only one wiretap application was denied—which you can choose to take as evidence that law enforcement is extremely scrupulous in seeking applications, or that judges tend to rubber stamp them, according to your preferred level of paranoia. Just half the states reported any wiretaps, and nearly 68 percent of the total 1,987 state wiretaps were attributable to just three states: California, New York and New Jersey....
Still, this invasive technique is still reserved for investigating the most serious violent crimes, right? Alas, no: For 84 percent of wiretap applications (2,675 wiretaps), the most serious offense under investigation involved illegal drugs. Further proof, if proof were needed, that privacy suffers enormous collateral damage in our failed drug war. Drugs have long been the reason for the vast majority of wiretaps, but that trend, too, is on the upswing: Drug cases accounted for “just” 75 percent of intercept orders in 2000.
I am afraid we are on a path to thoroughly eviscerating the Fourth Amendment simply because police forces find it too big of a hassle to comply. Just look at almost every case of abuses of search and seizure rules or of missing search warrants and you almost never see a time-based urgency that is often used as an excuse to end-around the rules. What you almost always see is just, well, laziness.
Now comes the news that the FBI intends to grant to its 14,000 agents expansive additional powers that include relaxing restrictions on a low-level category of investigations termed “assessments.” This allows FBI agents to investigate individuals using highly intrusive monitoring techniques, including infiltrating suspect organizations with confidential informants and photographing and tailing suspect individuals, without having any factual basis for suspecting them of wrongdoing. (Incredibly, during the four-month period running from December 2008 to March 2009, the FBI initiated close to 12,000 assessments of individuals and organizations, and that was before the rules were further relaxed.)
This latest relaxing of the rules, justified as a way to cut down on cumbersome record-keeping, will allow the FBI significant new powers to search law enforcement and private databases, go through household trash, and deploy surveillance teams, with even fewerchecks against abuse. The point, of course, is that if agents aren’t required to maintain a paper trail documenting their activities, there can be no way to hold the government accountable for subsequent abuses.
Freedom dies because we couldn't be bothered with all the work to protect it.
PS- why is it no one wants to address any of the paperwork hassles in starting construction or opening a restaurant or getting a liquor license or starting a taxi service or any number of other private enterprises, but the government jumps right on the task of streamlining the work it takes to spy on me.
Because we give special powers to use force to the police that most of the rest of us do not have, the police need more scrutiny and accountability, not less. However, the police tend to fight this accountability at every turn -- in particular, they tend to want to ban any filming of their public activities, even if they have to do it through violence. Likely, this is because every time a video surfaces, it seems to contradict the cover story the police involved have agreed to. I am all for mandatory surveillance of police.
Update: Here is a fun search. Google: "Video Contradicts Police Report" and see how many different hits you get.
Wow, it is a wonder that the FBI works so hard to gain warrant-less search powers when the judiciary seems hell-bent on rubber stamping every request that comes along
The secretive Foreign Intelligence Surveillance Court approved all 1,506 government requests to electronically monitor suspected “agents” of a foreign power or terrorists on US soil last year, according to a Justice Department report released via the Freedom of Information Act....
“The FISC did not deny any applications in whole, or in part,” according to the April 19 report to Sen. Majority Leader Harry Reid, (D-NV.)
The 11-member court denied two of 1,329 applications for domestic-intelligence surveillance in 2009. The FBI is the primary agency making those requests.
This is the problem with such a narrow court - it tends to get co-opted by the FBI in the same way that regulatory agencies get captured by the groups they regulate. I am not sure how the court is picked, but some sort of rotation of the membership might help bring a bit more skepticism to the group
The government is the first organization, given its unique powers to use force against citizens, that should be subject to surveillance and transparency. Unfortunately, since it is the government itself that sets the rules, it is usually the last. Following in the tradition of a Congress that exempts itself form most of its workplace regulation, comes the new financial bill which apparently exempts the SEC from most public scrutiny
Under a little-noticed provision of the recently passed financial-reform legislation, the Securities and Exchange Commission no longer has to comply with virtually all requests for information releases from the public, including those filed under the Freedom of Information Act.
The law, signed last week by President Obama, exempts the SEC from disclosing records or information derived from "surveillance, risk assessments, or other regulatory and oversight activities." Given that the SEC is a regulatory body, the provision covers almost every action by the agency, lawyers say. Congress and federal agencies can request information, but the public cannot.
That argument comes despite the President saying that one of the cornerstones of the sweeping new legislation was more transparent financial markets. Indeed, in touting the new law, Obama specifically said it would "increase transparency in financial dealings."
Apparently the children of the sixties, who once pushed for the Freedom of Information Act as a check to those in power, now are rolling it back once they are in power themselves.
In upholding the conviction of Josue Acosta Marquez, (a.k.a. Martin Contreras-Pulido) in an interstate marijuana smuggling case, the Circuit Court judges wrote that federal agents and Iowa cops did nothing wrong when they planted the electronic monitoring device on a pickup truck used by Marquez while it was parked at a Wal-Mart. Police accessed the unit seven times to change the batteries -- always in a public place -- and tracked the pickup as it drove between Des Moines and Denver.
Since anyone can see a vehicle parked or driving in public places, the use of electronics to enhance surveillance doesn't violate Fourth Amendment rights regarding unreasonable search and seizure, wrote Justices Roger Wollman, James Loken and John Gibson.
No warrant neeeded. And there's nothing stopping cops from planting those suckers as often and wherever they like, says the Eighth Court judges.
First, I have always thought that extended surveillance of a home or moving vehicle, beyond say a few hours, should require a warrant, even if it is all performed in public places. I think most folks would consider such actions by a private party to be intrusive (thus many state stalking laws) and we generally hold the state to an even tighter standard.
Second, cost is important. A surveillance approach that is difficult and expensive is less likely to be abused than one that is suddenly 10x or even 100x less expensive. The judges acknowledge this, but then ignore the problem completely in their statement when they write:
It is imaginable that a police unit could undertake "wholesale surveillance" by attaching such devices to thousands of random cars and then analyzing the volumes of data produced for suspicious patterns of activity. Id. Such an effort, if it ever occurred, would raise different concerns than the ones present here.
Just get a freaking warrant -- its not that hard, especially in this case when we are talking about extended surveillance and no particular rush to get started. This kind of lazy law enforcement has become endemic, and we shouldn't tolerate it.
Libertarians vote for Republicans when they get tired of Democrat's authoritarian meddling in economics. Libertarians vote for Democrats when they get tired of Republican's tough-on-crime/terrorism/sex/drugs civil rights violations. But what to do when Republicans like Bush expand government like Democrats, and Democrats like Obama show little respect for individual liberties:
Google and an alliance of privacy groups have come to Yahoo's aid by helping the Web portal fend off a broad request from the U.S. Department of Justice for e-mail messages, CNET has learned.
In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages--a position that puts those companies directly at odds with the Obama administration.
Yahoo has been quietly fighting prosecutors' requests in front of a federal judge in Colorado, with many documents filed under seal. Tuesday's brief from Google and the other groups aims to buttress Yahoo's position by saying users who store their e-mail in the cloud enjoy a reasonable expectation of privacy that is protected by the U.S. Constitution.
The government theory in the case seems pretty bizarre to me. I guess the folks who have been trying to convince me to use PGP aren't so paranoid after all.
But all that aside, it strikes me there is a need for legislative action here to cement electronic privacy. A couple of weeks ago, Julian Sanchez had a good article describing the crazy state of electronic privacy law -- its worth a read because it is hard to excerpt, the rules being so Byzantine. But here is one snippet:
Suppose the police want to read your e-mail. To come into your home and look through your computer, of course, they'd need a full Fourth Amendment search warrant based on probable cause. If they want to intercept the e-mail in transit, they have to go still further and meet the "super-warrant" standards of the Wiretap Act. Once it lands on your Internet Service Provider's server, a regular search warrant is once again the standard"”assuming your ISP is providing access "to the public." If it's a more closed network like your work account, your employer is permitted to voluntarily hand it over. But if you read the e-mail, or leave it on the server for more than 180 days, then suddenly your ISP has become a "remote computing service" provider rather than an "electronic communications service provider" vis a vis that e-mail. So instead of a probable cause warrant, police can get a 2703(d) order based on "specific and articulable facts" showing the information is "relevant and material" to an investigation"”a much lower standard"”provided they notify you. Except they can ask a judge to delay notification if they think that would impede the investigation. Oh, unless your ISP is in the Ninth Circuit, where opened e-mails still get the higher level of protection until they've "expired in the normal course," whatever that means.
Unfortunately, this aggressive approach to the Fourth Amendment seems to be well embedded in the Obama administration:
Yesterday a federal judge in San Francisco ruled that the Al Haramain Islamic Foundation can recover damages under the Foreign Intelligence Surveillance Act (FISA) for illegal eavesdropping on telephone conversations between its officials and its American lawyers. U.S. District Judge Vaughan Walker rejected the Obama administration's argument that the state secrets privilege barred the foundation's lawsuit. Although Barack Obama ran on a promise to use the privilege less promiscuously than his predecessor, his Justice Department, like Bush's, claimed that even acknowledging the warrantless wiretapping of Al Haramain would endanger national security.
Al Haramain learned about the surveillance after the government accidentally gave its lawyers a classified document discussing it, but the foundation was not allowed to cite that document in making its case. Instead it relied on public statements by various federal officials that Walker concluded were sufficient to show the surveillance had occurred. Since there was never any serious question that warrantless surveillance of communications involving people in the United States violated FISA, the government lost its case once Walker refused to let it hide behind the state secrets privilege. "Under defendants' theory," he noted, "executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority....Because FISA displaces the SSP in cases within its purview, the existence of a FISA warrant is a fact that cannot be concealed through the device of the SSP."
This story was interesting, in a creepy Orwellian sort of way, in that it has turned out to be really, really hard to bring suit against this administration for this crime because people have a hard time demonstrating in court that they have standing to sue. In effect, one has to show that he has been wiretapped to then sue that the surveillance was illegal, but the information to prove that one has been wiretapped is classified and therefore unavailable. Only an accidental leak allowed this case to proceed.
Hopefully this is true, but it appears that Google is fed up with Chinese hijinx and is considering either pulling out of the country or insisting on being more open and less filtered. I have given Google a lot of grief here for enabling Chinese censorship, so kudos if they are starting to rethink their relationship with China.
These attacks and the surveillance they have uncovered"“combined with the attempts over the past year to further limit free speech on the web"“have led us to conclude that we should review the feasibility of our business operations in China. We have decided we are no longer willing to continue censoring our results on Google.cn, and so over the next few weeks we will be discussing with the Chinese government the basis on which we could operate an unfiltered search engine within the law, if at all. We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China.
Taxpayers in Maricopa County (which includes Phoenix) are paying millions of dollars for officials within the county government to sue each other:
Lawsuits between county agencies including the Sheriff's Office, the County Attorney's Office and the Treasurer's Office against county administration have cost more than $2.5 million in legal fees according to the county's records through early November.
The Sheriff's Office has used attorneys from Ogletree, Deakins, Nash, Smoak and Stewart to wage legal battles with the county on issues including control of a law-enforcement computer system and the need to release surveillance footage of sheriff's deputies arresting Supervisor Don Stapley
in a county parking garage.
Next year, the Sheriff's office has asked for $7 million for this purpose. Wow. Given that I despise Sheriff Arpaio, I would love to lay this all at his door step but my sense is that the dysfunctionality goes broader and deeper.
Apparently the NSA is under some heat for proposing to monitor the communications of a member of Congress thought to be meeting with terrorist suspects:
While the N.S.A.'s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency's attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said. . . .
The agency believed that the congressman, whose identity could not be determined, was in contact "” as part of a Congressional delegation to the Middle East in 2005 or 2006 "” with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman's conversations, the official said.
The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.
I have a counter idea. Why don't we monitor all the communications of all of Congress all the time and post it on a web site. If they want to exercise ultimate power over us, we can then exercise ultimate scrutiny over them. Unfortunately, in the world of the future, Congress is likely to be the only group exempted from monitoring.
Unchecked executive power seems to be a bad thing only when weilded by the other guy:
The Obama administration is again invoking government secrecy in defending the Bush administration's wiretapping program, this time against a lawsuit by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.
Disclosure of the information sought by the customers, "which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security," Justice Department lawyers said in papers filed Friday in San Francisco.
Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign's "unceasing criticism of Bush-era secrecy and promise for more transparency."
"Trust Me" is not supposed to be the defining principle in the Constitution for the excercise of power.
Every defining attribute of Bush's radical secrecy powers -- every one -- is found here, and in exactly the same tone and with the exact same mindset. Thus: how the U.S. government eavesdrops on its citizens is too secret to allow a court to determine its legality. We must just blindly accept the claims from the President's DNI that we will all be endangered if we allow courts to determine the legality of the President's actions. Even confirming or denying already publicly known facts -- such as the involvement of the telecoms and the massive data-mining programs -- would be too damaging to national security. Why? Because the DNI says so. It is not merely specific documents, but entire lawsuits, that must be dismissed in advance as soon as the privilege is asserted because "its very subject matter would inherently risk or require the disclosure of state secrets."
What's being asserted here by the Obama DOJ is the virtually absolute power of presidential secrecy, the right to break the law with no consequences, and immunity from surveillance lawsuits so sweeping that one can hardly believe that it's being claimed with a straight face. It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior. As EFF's Bankston put it: "President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties. But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a "secret" that cannot be reviewed by the courts, it feels like deja vu all over again."
I am always ready to criticize the US and our steady slide into police state tactics against our own citizens. But I think that those who have some rosy picture of European countries being some sort of civil liberties ideal towards which we should aspire are mis-informed. Granted that a number of these countries have more sensible attitudes both towards drugs as well as sexual relationships that don't fit a biblical script, but their state police forces have powers over their citizenry we (at least not yet) don't tolerate.
For the past couple of years the British government has been extremely aggressive in installing surveillance cameras "” CCTV on high streets, speeding cameras on highways, and so on. If you are a typical British citizen, your actions are captured on camera hundreds of times a day, and you can be watched with suspicion even without the government having any probable cause reason to suspect you of anything. Relatedly, they have also been challenging people taking pictures in public, and have recently essentially made it illegal to take pictures of police officers (with the justification being the possibility of terrorist abduction of officers). The erosion of civil liberties in Britain has been short and sharp.
Now some local authorities are witholding liquor licences from pub owners unless they agree to install CCTV inside the pub. One striking recent example is The Draper's Arms in Islington, a borough of London. As the Londonist notes:
Nick Gibson is attempting to re-open The Draper's Arms on Barnsbury Street, a former Evening Standard pub of the year winner that shut its doors last August. But to regain a licence, he's been told he must fit CCTV cameras that capture the head and shoulders of everyone entering the pub, and be willing to hand over footage whenever the police ask for it.
Gibson is furious at what he sees as erosion of civil liberties. However, his local MP and the Metropolitan Police keep blithely citing "˜public safety'. We find that a bit rich, considering studies have shown CCTV is less effective than increased street lighting at cutting crime, and CCTV footage is used to help solve just 3% of London robberies.
Apparently Patrick McGoohan has passed away. I suspect his death will further reinvigorate interest in the Prisoner series, a 17-episone show following a spy trying to come in from the cold, but who finds himself in an surreal small town structured for maximum surveillance and to try to extract as many secrets from him as possible. A nice statement on the individual vs. the state, 1960s style. I have not seen every epiosode, but I enjoyed most of it, right up to the ending, which I confess I didn't totally get but seemed to undermine the individual vs. the state theme and convert it to some Freudian surrealism. If you become intrigued, you don't necesarily need to shell out to Amazon because AMC is streaming all the original episodes online in preparation for a remake they are producing this year.
Laws that require the goodwill and ethical functioning of its participants, without oversight, always worry me. The companion argument to this is when someone says (and this is popular among Democrats nowadays) all this infrastructure in the government that does not work will be fine when we get our own smart people running it.
It never, never works. Here is yet another example: All that extra post-9/11 investigatory power? Trust us, we only use it on the bad guys.
The Maryland State Police classified 53 nonviolent activists as
terrorists and entered their names and personal information into state
and federal databases that track terrorism suspects, the state police
chief acknowledged yesterday.
Police Superintendent Terrence B.
Sheridan revealed at a legislative hearing that the surveillance
operation, which targeted opponents of the death penalty and the Iraq
war, was far more extensive than was known when its existence was
disclosed in July....
Said the unrepentant leader of this efort:
"I don't believe the First Amendment is any guarantee to those who wish to disrupt the government," he said.
Reading my history, disrupting the government was not the last thing they were trying to protect, it was the first thing.
A while back, I pointed out that immigration opponents seemed to be depending on American's having poor match skills and a pathetic knowledge of history. Today in this post from Captain's Quarters we find more statistical funny business. Captain Ed, like many conservatives, have been stumping for the US to build a big honking fence at the border, nominally as part of the war on terrorism.
Of course according to supporters it is only about security, not xenophobia, which explains why the fence proposal in Congress covers both our northern and southern borders since both are equally porous to terrorists. Oh, wait, the law only covers the southern border? Oh. Well, I hope terrorists can't read a map and don't notice that the northern border is three times as long and in many cases more unpopulated and unguarded than the southern border.
Anyway, another "security" argument by immigration foes is that hordes of criminals are apparently pouring across the border, and walls are proposed as a way to stop them. The Captain quotes Bill Frist:
One of the most important and most effective ways that we can stop
illegal immigration is through the construction and proper maintenance
of physical fences along the highest trafficked, most commonly violated
sections of our border with Mexico.
Take the case of San Diego. According to the FBI Crime Index, crime
in San Diego County dropped 56.3% between 1989 and 2000, after a fence
stretching from the Ocean to the mountains near San Diego was
substantially completed. And, according to numbers provided by the San
Diego Sector Border Patrol in February 2004, apprehensions decreased
from 531,689 in 1993 to 111,515 in 2003.
Whoa. That sounds impressive. But, remember what I often say on this site -- correlation is not causation. Indeed, it is not just random chance that he picked the years 1989 - 2000. Those were the years that nearly every part of the US saw a huge drop in its crime rate. Using this data for these years, and presuming Frist is using the crime rate index per 100,000 people, which is the stat that makes the most sense, here are some figures for 1989 - 2000:
Crime Rate Change, 1989-2000:
US : - 28%
California: - 45%
New York: -51%
Wow! The border fence in San Diego even had a similarly large effect on crime in New York State! That thing is amazing. Oh, and note these are state figures. My understanding is that the figures for large metropolitan areas is even more dramatic. So what happened in 1989 to 2000 is every state and in particular every large metropolitan area in the country saw huge double digit drops in crime, and San Diego was no exception. But Frist tries to give credit to the border fence.
In case you want to believe that Frist does not know what he is doing with these stats (ie that he wasn't intentionally trying to give credit for a national demographic trend to a border fence in San Diego) notice that 1989 was the US crime rate peak and 2000 was the US crime rate low point. So with data for the years up to 2005 available, he just happens to end his period at 2000. Oh, and the new style fences he wants to emulate were actually only started in 1996 (and here, search for "triple fence"), AFTER most of these crime gains had been made. Correlation definitely does not equal causation when the proposed cause occurred after the effect.
For all of you who always wanted to live in Soviet East Berlin, you may soon get a good taste of that experience:
The first fence, 10 feet high, is made of welded metal panels. The
second fence, 15 feet high, consists of steel mesh, and the top is
angled inward to make it harder to climb over. Finally, in high-traffic
areas, there's also a smaller chain-link fence. In between the two main
fences is 150 feet of "no man's land," an area that the Border Patrol
sweeps with flood lights and trucks, and soon, surveillance cameras.
Below are views of Nogales, AZ and Berlin. Nothing alike. Nope. Totally different.
Finally, I will give the last word to Frist, bold added.
That's why I strongly support the Secure Fence Act of 2006 "¦ and that's
why I'm bringing this crucial legislation to the floor of the Senate
this week for an up-or-down vote. By authorizing the construction of
over 700 miles of two-layered reinforced fencing along our southwest
border and by mandating the use of cameras, ground sensors, UAVs and
other forms of hi-tech surveillance, this legislation would help us
gain control over every inch of our borders "“ once and for all.
"gain control over every inch of our borders," except, or course, for those
3000 5525 miles (350 million inches) to the north where the people on the other side have the courtesy not to speak a foreign language. But its hard to demagogue well about a threat from Canadians, since they are mostly WASPs like we mostly are, or at least it has been for the last 100 years or so. 54-40 or fight!
Update: Here is that terrifying Canadian border barrier (from this site). This demonstrates why our terrorist security dollars need to all be invested on the southern border, since this one is already locked down tight. Heck, there is one of these babies (below) every mile! Beware terrorists!
And don't forget these terrorist-proof border checkpoints along our northern frontier:
But it's not about race.
Update 2: Yes, my emailers are correct. I did not actually give Frist the last word like I said I would. Gosh, I feel so bad about that.
One of the reasons I blog is that the act of writing helps me clarify my thinking on certain issues. I have written a number of times about my concerns over the "war powers" this administration is taking upon itself. Arnold Kling's article in TCS Daily helped me clarify a better framework for thinking about my issues. I can now put my concerns in two categories:
- The administration is going too far in using the war as an excuse to circumvent a number of Constitutional protections, from habeas corpus to search and seizure. This does not mean that I am necessarily against all new activities, but they need to be initiated within our Constitutional framework. Take surveillance activities. Its not unreasonable to think that terrorism demands new surveillance tools. But the principle we have always followed for surveillance is that Congress authorizes the power and the judiciary gets some type of review of the targets and methods. Bush seems to have become impatient with separation of powers to the point that he does not even try to engage the other arms of the government, instead using the war to claim a fiat power. (It should be noted that even when the separation of powers is respected, as with the Patriot Act, mistakes are made and we can go too far. However, at least we can debate it and there are Congressmen we can hold accountable).
- The second category of problem I have is with the open-ended nature of the war. Calling this the "War on Terror" is only marginally more precise and limiting than saying we are fighting the "War against Bad Stuff." If one asks, "Who are we fighting", the administration answers "Whoever the President says we are fighting against". If one asks "When is it over" the administration either answers "Whenever the President says it is" or else, probably more honestly, they say "not for a long, long time."
In terms of civil liberties, the second point may be the most problematic. Most citizens will grant the President some special war powers (as in fact the Constitution does), though we can argue whether the current administration has gone too far in defining these powers for themselves. But if you combine this with letting the administration define exactly who the enemy is and how long the war lasts, it makes for a combination deadly to civil liberties.
Take the example of detention of enemy combatants. Administration supporters argue that we have always been authorized to hold enemy combatants until the end of the war, as we did in WWII. And so we did. We were at war with Germany, so we detained German soldiers we captured until the end of the war. Note that these are definitions that everyone at the time could agree on -- ie everyone knew what a German soldier was and everyone knew that "end of the war" meant when we marched into Berlin. Few German detainees were held for much more than a year. By the way, it is interesting to note that even in WWII, we abused this notion. The administration defined "enemy combatant" as "anyone in the US of Japanese descent", so that we ended up interning innocent American citizens for years, much to our shame today.
However, in the current "war", an enemy combatant is anyone the administration says is an enemy combatant (at least in their theory) and "for the duration" means as long as the administration cares to hold them, up to and including "forever."
Conservatives wish to argue that the "War on Terror" is a new kind of war and demands new tools to fight it, which they use to justify all kinds of secret searches and detainments. Fine, but then it also needs new types of civil liberties checks. Coming back to our detention example, in WWII it was not really necessary to have some kind of judicial review on the question of whether a captured German soldier was an enemy combatant; the uniform was a pretty good giveaway. However, such a review is necessary today, since the enemy combatants languishing at Gitmo (many of who I am willing to believe are bad guys) don't have any identifying uniforms or paperwork.
If I read him right, Kling is saying something similar: Some security activities that were traditionally not allowed may be necessary, but for every civil liberties give-back there needs to be a countervailing new control or check on government activity:
On the whole, Posner makes a persuasive case for tilting the judicial
balance in favor of reasonable efforts to promote security rather than
strict-constructionist civil libertarianism. However, I believe that
what we need to do is re-build our civil libertarian fortresses, not
simply retreat from them. That is why I favor much stronger accountability for agencies engaged in surveillance. It is why I am proposing here a formal process for naming our enemies.
Just before my body decided to purge itself for a few days, USA Today ran a story that the NSA was doing more than just listening in on overseas calls to suspected terrorists. It claimed that the NSA was also compiling a database of domestic call records.
The National Security Agency has been secretly collecting the phone
call records of tens of millions of Americans, using data provided by
AT&T, Verizon and BellSouth, people with direct knowledge of the
arrangement told USA TODAY.
This bothers me, as much for separation of powers issues that I will describe below as for any worry about the data being collected. Conservatives, however, immediately criticized the article, as summarized well here, making a number of points:
1. Its old news
Shame on conservatives. This is the same tired line that Clinton used to drive them crazy with. The theory here is that once a story has run a full news-cycle, it is then too late to report on it or show any further outrage about it. Once the political boil is lanced, its time to "move on". Sorry, I don't buy it.
2. USA Today is exaggerating
The USA Today and those who picked up on the story are indeed sloppy, perhaps purposefully to make a better story, in blurring the line between collecting phone numbers and eavesdropping. To date, the evidence is only that phone numbers were collected, which is in fact less intrusive than eavesdropping. It still pisses me off, for reasons below.
3. The IRS already has more data
Yes, and that bothers me too. Does anyone really doubt that IRS data has been peeked at and used for political purposes? And I am flabbergasted at how far conservatives have wandered over the last several decades that they hold up the IRS as a model to be emulated. But here is the key difference that I will get into in a minute: The IRS is allowed to collect this data by legislative statute passed by Congress. This statute includes rules for data management and access, with steps for judicial review and criminal penalties for its violation. The NSA data base has ... none of this. No legislative authorization. No process and privacy protections. No penalties for misuse of data. No judicial review steps.
4. Its no big deal, and its good for you
Maybe. Or maybe not. The trouble is that we are only getting tiny leaked glimpses into whatever the administration is doing. The President has created the theory that he can declare war against a vague and in fact impossible to define target, and then take on absolute dictatorial non-reviewable powers to prosecute this war in any way he likes, and that any steps taken in this war can be considered legitimate steps (rather than overstepping his bounds) based on his say-so alone.
The problem is not the database per se, but the fact that the NSA and this administration feels it can do anything it wants outside the bounds of traditional separation of powers. If the NSA needs a phone call database, then the President can go to Congress and solicit such an authorization. A well-crafted piece of legislation would put strict limits on how the data is used, would provide some sort of outside review of its use, and would provide for stiff penalties for its misuse. This is what I wrote previously:
Here is how we have generally interpreted the 4th amendment: The
legislative branch sets the ground rules, as followed by the
Administration. The administrations selection of targets is reviewed
by the Judiciary (warrants) and is also subject to later review at
trial (via the admissibility of evidence). What we try to avoid is
allowing the same person to set the rules, choose the target, and
perform the surveillance, all in secret and without outside review.
The problems with the NSA wiretapping program is not that it is wrong
per se, but that it may violate this process. The administration is
claiming the right to choose the target and perform the surveillance
under the own rules and in secret with no possibility of review.
What really irks me about this is the crass politics going on. Does anyone doubt that if a Clinton White House had been revealed doing this that Conservatives would have been screaming in outrage? And liberals are, if anything, even funnier. These are the folks that trust the government but distrust corporate America. So why is it that they are upset about a transfer of phone records from evil old AT&T to benevolent old Uncle Sam? Except, of course, because it is being done by a Republican.
Update: This database may be being used to see who reporters are talking to in order to root out leaks. Anyone uncomfortable now? And this is priceless:
Under Bush Administration guidelines, it is not considered illegal for
the government to keep track of numbers dialed by phone customers.
Duh. Under Bush Administration guidelines, nothing the administration wants to do is considered illegal.
More: Several sources have used the Supreme Court decision Smith vs. Maryland to make the case that collection of the phone records is legal without a warrant. Here is a key passage:
Petitioner in all probability entertained no actual expectation of
privacy in the phone numbers he dialed, and even if he did, his
expectation was not "legitimate." First, it is doubtful that telephone
users in general have any expectation of privacy regarding the numbers
they dial, since they typically know that they must convey phone
numbers to the telephone company and that the company has facilities
for recording this information and does in fact record it for various
legitimate business purposes. And petitioner did not demonstrate an
expectation of privacy merely by using his home phone rather than some
other phone, since his conduct, although perhaps calculated to keep the
contents of his conversation private, was not calculated to preserve
the privacy of the number he dialed. Second, even if petitioner did
harbor some subjective expectation of privacy, this expectation was not
one that society is prepared to recognize as "reasonable." When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information to the police,
First, it would be interesting to see if the SCOTUS would agree that this ruling extends to sharing such information with non-law-enforcement branches of the government (NSA is not a law enforcement arm). Second, it would be interesting to see if the Court came to the same conclusion if the target for the the data sweep was "every citizen in the US" and not just targets of law enforcement investigations.
Third and most importantly, this decision seems to suck. This exact same logic seemingly applies to any piece of data submitted to any private third party unless the data is specifically protected (e.g. medical records). Sorry, but this is wrong. I should be able to have commercial transactions with third parties without the expectation that the government can take the records for its own use without any kind of a warrant.
Also, the premise that this ruling is based on is provably false, though only by technology instituted after the decision. There is an entire industry of phone company services and 3rd party technologies aimed right at this area of phone call (and email; and Internet surfing) anonymity and privacy. With the Internet for example, there is a very, very clear expectation that sharing information with a company for one purpose (e.g. to complete a transaction) does NOT authorize the company to use or share the data for any other purpose. This use of transaction data and its limits is a CRITICAL and front-of-mind issue for modern communicators. It is absurd to say, as the justices did, that:
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information to the police
The implication is that by giving a company data for use in a transaction, we are giving them an unwritten license to do whatever they want with the data. Do you believe you are granting this? Is it true that you "entertain no expectation of privacy" in such transactions? If you agree with this ability, then I assume you also agree that the government should be able to see all your:
- Credit card bills
- Records of who you have emailed
- Records of which Internet sites you have visited
- Records of what searches you made in search engines
These are all 100% amenable to the logic the Justices used in this decision.
I don't mean that law enforcement shouldn't be able to subpoena these records ever. But they need to at least go to a judge and say "we want to see Warren's phone records from X to Y date because we suspect him of Z for the following reasons."
Does it bother anyone else that the only complaint voiced in this article about government requirements for building in surveillance backdoors into the Internet is about the cost?
Oh, and by the way, note the date on the act in question. 1994 makes it a Clinton-era law crafted after the first attempt to bomb the WTC. All of you Democrats who feel smugly certain that civil liberties will be safe if only your party was in charge should note how closely the Patriot Act resembles Clinton's proposed anti-terrorism bill. Just as Republicans have found that politicians shed their small government talk once they are in charge, our country's leadership tends to abandon any past queasiness about trampling on civil liberties once in a position of power, no matter what party they represent.
I guess I avoided it when I was growing up in Houston, but there sure seems to be something in the water down there as first our Houston-raised president, and now Houston's police chief, seem awfully fond of surveillance. From Tom Kirkendall:
Anne Linehan and Charles Kuffner are two of Houston's best bloggers on local political matters, and they have been covering an emerging story that amazingly appears to be flying below the radar screen of most Houstonians -- i.e., Houston Police Chief Harold Hurtt's
plan announced last week proposing to place surveillance cameras in
apartment complexes, downtown streets, shopping malls and even private homes to fight crime during a shortage of police officers.
Building permits should require malls and large apartment
complexes to install surveillance cameras, Hurtt said. And if a
homeowner requires repeated police response, it is reasonable to
require camera surveillance of the property, he said.
And the Chief's justification for surveillance cameras in private homes?:
"I know a lot of people are concerned about Big Brother,
but my response to that is, if you are not doing anything wrong, why
should you worry about it?"
H'mm. That is not the kind of reasoning that one would find in, say, The Federalist Papers, now is it?