Sunshine/Lollipops
› Google’s Spymasters Are Now Worried About Your Secrets
A recent article in The Wall Street Journal by Google Executive Chairman Eric Schmidt, “The Dark Side of the Digital Revolution,” makes for very scary reading. It is not so much because of what he and co-author Jared Cohen, the director of Google Ideas, have to say about how dictators can use new information technology to suppress dissent; we know those guys are evil. What is truly frightening is that the techniques of the totalitarian state are the same ones pioneered by so-called democracies where commercial companies, like Google, have made a hash of the individual’s constitutionally guaranteed right to be secure in his or her private space.
The dictators, mired in more technologically primitive societies, didn’t develop the fearsome new implements of control of the National Security State. Google and other leaders in this field of massively mined and shared information did. As the authors concede and expand on in their new book:
“Despite the expense, everything a regime would need to build an incredibly intimidating digital police state—including software that facilitates data mining and real-time monitoring of citizens—is commercially available right now. … Companies that sell data-mining software, surveillance cameras and other products will flaunt their work with one government to attract new business. It’s the digital analog to arms sales. …”
The Google execs have inadvertently let us in on the world that they inhabit, where the data mining of individual preferences—for such interests as sex and politics—can be cross filed and tabulated by supercomputers to be exploited for commercial gain. The drive for ever more detailed information on individual behavior is on with a vengeance in the profit-driven world of data mining, as anyone who observes the ads that mysteriously pop up during Internet browsing sessions well knows. But that invasive technology is now undergoing a massive revolutionary upgrade provided by the collection of vast numbers of biometric markers.
“Don’t think the data being collected by autocracies is limited to Facebook posts or Twitter comments,” Schmidt and Cohen warn. “The most important data they will collect in the future is biometric information, which can be used to identify individuals through their unique physical and biological attributes. Fingerprints, photographs and DNA testing are all familiar biometric data types today. … With cloud computing, it takes just seconds to compare millions of faces. … By indexing our biometric signatures, some governments will try to track our every move and word, both physically and digitally.” [++]
› DHS Watchdog OKs 'Suspicionless' Seizure of Electronic Devices Along Border | Wired
The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.
The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.
“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said.
The memo highlights the friction between today’s reality that electronic devices have become virtual extensions of ourselves housing everything from e-mail to instant-message chats to photos and our papers and effects — juxtaposed against the government’s stated quest for national security.
The President George W. Bush administration first announced the suspicionless, electronics search rules in 2008. The President Barack Obama administration followed up with virtually the same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data.
According to legal precedent, the Fourth Amendment — the right to be free from unreasonable searches and seizures — does not apply along the border. By the way, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.
› Court OKs warrantless use of hidden surveillance cameras | CNET
Police are allowed in some circumstances to install hidden surveillance cameras on private property without obtaining a search warrant, a federal judge said yesterday.
CNET has learned that U.S. District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission — and without a warrant — to install multiple “covert digital surveillance cameras” in hopes of uncovering evidence that 30 to 40 marijuana plans were being grown.
This is the latest case to highlight how advances in technology are causing the legal system to rethink how Americans’ privacy rights are protected by law. In January, the Supreme Court rejected warrantless GPS tracking after previously rejecting warrantless thermal imaging, but it has not yet ruled on warrantless cell phone tracking or warrantless use of surveillance cameras placed on private property without permission.
Yesterday Griesbach adopted a recommendation by U.S. Magistrate Judge William Callahan dated October 9. That recommendation said that the DEA’s warrantless surveillance did not violate the Fourth Amendment, which prohibits unreasonable searches and requires that warrants describe the place that’s being searched.
“The Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance,” Callahan wrote.
In 2010, Paul Butler published a law review article entitled The White Fourth Amendment, (citation is [43 Tex. Tech. L. Rev 245], for those of you with access to Westlaw or Lexis). In the article, Butler explains how legal rules established by the Supreme Court over the past fifty years have created rules for police that lead inextricably to racially disparate policing. What follows is an excerpt from the article in which Butler describes the facts from a case called Immigration & Naturalization Service v. Delgado, which mostly Mexican factory workers were searched based on a hunch by INS agents that the factory was populated by illegal immigrants. What occurred in that factory provides an excellent case study of how exactly a “White” Fourth Amendment works in practice:
[I]n Immigration & Naturalization Service v. Delgado, the INS suspected numerous illegal immigrants of working at a garment factory, so the agency acquired a search warrant to investigate the facility. During the search, some armed INS agents were stationed at the exits of the factory in order to prevent employees from escaping, while fifteen to twenty-five other armed agents systematically moved through the rows of workers-many of whom were visibly scared and some of whom tried to hide-in order to question them regarding their immigration status. After showing his badge, an agent would question the employee about his citizenship status and would end questioning only if he could immediately establish American citizenship or provide valid immigration papers; those who could not were handcuffed and taken away to vans waiting outside the facility. Though the Court admitted that any “brief detention” effected by an officer’s “show of authority” is unconstitutional unless supported by reasonable suspicion of a crime, the Court held that these interrogations were constitutional because the agents were “only questioning people.” According to the majority, the employees should have felt free to refuse to answer even though those employees who failed to provide proof of citizenship were arrested, and employees should have felt free to leave even though agents detained those “who attempted to flee or evade the agents.”
Startlingly, the majority opinion failed to mention the race of the targets of the search, the vast majority of whom were Mexican. Though the controlling question was whether the individuals in question would feel “free to leave,” the majority failed to recognize that these people were immigrants to America, and therefore might be less aware of their constitutional right to be free from searches and seizures without some degree of suspicion. The Court ignored the fact that the employees, many of whom were visibly frightened by the experience, might have had previous encounters with abusive INS agents or police using the racial-profiling tactics surely used in this instance. Moreover, only dissenting Justice Brennan, joined by Justice Marshall, noted the impossibility of visually distinguishing illegal Mexican immigrants from American-born Latinos. This task would have been especially difficult considering that the factory was located in Southern California, an area near the Mexican border where Hispanics are the largest ethnic group. [internal citations omitted. ed.].
I want to be clarify how this works: when the words “reasonable suspicion” or “probable cause” are used in Fourth Amendment case law, it refers to an individualized quantum of suspicion. In other words, police cannot constitutionally suspect entire “groups” of people of criminal conduct. You have to have individualized suspicion that a particular person has committed (or intends to commit) a crime. This means that the only way the INS agents in the Delgado case could have developed reasonable suspicion or probable cause to suspect that the Mexican workers were illegal immigrants is by relying on the only external factor available to them at the time: their racial appearance.
The Delgado Court blessed this normally unconstitutional search, however, by ruling that the INS agents above were not actually participating in a “search” or “seizure.” Since the Fourth Amendment only protects you from unreasonable searches & seizures, it does not prevent law enforcement officials from “merely” asking questions, the way any other citizen would on the street. By fashioning the actions of the INS officials in Delgado as mere inquiries not rising to the level of a constitutionally recognized search, the Court avoided the constitutional problem of group-based suspicion (in this case, members of a racial group). By claiming that the INS agents were only “asking questions,” the Court was able to justify its ruling by claiming that the factory workers were under no obligation to answer any questions, and were “free to leave,” because there was no actual search or seizure taking place.
Of course, there’s on big problem with the Court’s analysis in Delgado: anyone whose ever been stopped by police knows that their characterization of the actions taken by INS agents in that case are, in a word, bullshit. David Cole put this best in 1999:
Few of us, [confronted by] armed police officers … would feel free to tell the officers to mind their own business… .“[i]mplicit in the introduction of the [officer] … is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse an answer.
— David Cole, No Equal Justice, at 18–20 (quoting Illinois Migrant Council v. Pilliod, 398 F. Supp. 882, 899 (N.D. Ill. 1975) (Marshall, J.)
This illusion—that police inquiries like those that took place in Delgado are no constitutionally recognizable searches & seizures—is the legal fiction that the Court has used to perpetuate the racially disparate impact of the substantive law that governs the Fourth Amendment. By pretending that people who are approached by police officers are “free to leave,” and will not instead be cowed and terrified by the officer’s implicit authority and visible weapons, the Court—whether intentionally or inadvertently—perpetuates and validates a White Fourth Amendment.
Under this legal standard, individualized suspicion no longer serves as a deterrent to group-based searches, because those searches are often characterized as “mere questions” which we are supposedly free to ignore. But nobody in their right mind (particularly a person of color living in America) would feel free to simply walk away from a police officer without serious repercussions.
The Court’s reasoning in Delgado appears in many other cases like it. It is based on a complete legal fiction that hopefully one day will be dismantled. But for now, it allows police to conduct racially-motivated searches for criminal activity without running afoul of the Fourth Amendment’s prohibition on group-based suspicion. This is precisely what Paul Butler means by a “White Fourth Amendment:” It is an amendment that, under current Supreme Court case law, allows for police to use racial characteristics as the basis of their searches & seizures—alongside the inherently intimidating effect of visible displays of police authority—without ever conducting a constitutionally recognized search. If you are curious as to why the racial disparities in our prisons are so absurdly high, you here have your answer.
In a significant blow to New York City’s use of stop-and-frisk tactics, the Bronx district attorney’s office is no longer prosecuting people who were stopped at public housing projects and arrested for trespassing, unless the arresting officer submits to an interview to ensure that the arrest was warranted.
Prosecutors quietly adopted the policy in July after discovering that many people arrested on charges of criminal trespass at housing projects were innocent, even though police officers had provided written statements to the contrary.
By essentially accusing the police of wrongfully arresting people, the stance taken by Bronx prosecutors is the first known instance in which a district attorney has questioned any segment of arrests resulting from stop-and-frisk tactics.
“This is exactly what prosecutors should be doing before proceeding with criminal prosecutions — namely making sure that formulaic statements by police officers actually have some basis to support the arrest and prosecution,” explains Legal Aid Society’s Steven Banks.
› Everyone who attended OWS with a cell phone had their identity logged, says security expert
While we in the civil liberties community disagree strongly with private investigator Steven Rambam’s admonition to “Get Over It,” after listening to him describe electronic surveillance powers it’s hard to disagree with the first part of the title of his talk: “Privacy Is Dead.” (Part two of the talk is below.)
“Where you work, what your salary is, your criminal history, all the lawsuits you’ve been involved in, real property… everything you’ve ever purchased, everywhere you’ve ever been… Your information is worth money. Your privacy today isn’t being invaded by big brother — it’s being invaded by big marketer,” he told an audience of hackers and privacy activists at HOPE 9 in New York during the summer of 2012.
Lots of the talk is about big corporations and their insatiable hunger for data about all of us, but Ramdam also addresses government spying:
One of the biggest changes is the ability to track your physical location. I’m sorry I came in at the end of the previous talk. I heard them talk about surveying cell phones with a drone, in a wide area — this is something that is done routinely now. [Note: Is that what these microwave antennas were used for at Occupy Wall Street in mid September?] I can tell you that everybody that attended an Occupy Wall Street protest, and didn’t turn their cell phone off, or put it — and sometimes even if they did — the identity of that cell phone has been logged, and everybody who was at that demonstration, whether they were arrested, not arrested, whether their photos were ID’d, whether an informant pointed them out, it’s known they were there anyway. This is routine.
I can tell you that if you go into any police station right now, the first thing they do is tell you, “Oh I’m sorry you’re not allowed to bring a cell phone in there. We’ll hold it for you.” Not a joke. And by the way it’s a legitimate investigatory technique. But cell phones are now the little snitch in your pocket. Cell phones tell me where you are, what you do, who you talk to, everbody you associate with. Cell phone tells me [sic] intimate details of your life and character, including: Were you at a demonstration? Did you attend a mosque? Did you demonstrate in front of an abortion clinic? Did you get an abortion?
› US data whistleblower: 'It's a violation of everybody's constitutional rights' | Paul Harris
Bill Binney believes he helped create a monster.
Sitting in the innocuous surroundings of an Olive Garden in the Baltimore suburbs, the former senior National Security Agency (NSA) official even believes he owes the whole American people an apology.
Binney, a tall, professorial man in his late 60s, led the development of a secret software code he now believes is illegally collecting huge amounts of information on his fellow citizens. For the staunch Republican, who worked for 32 years at the NSA, it is a civil liberties nightmare come true.
So Binney has started speaking out as an NSA whistleblower – an act that has earned him an armed FBI raid on his home. “What’s happening is a violation of the constitutional rights of everybody in the country. That’s pretty straightforward. I could not be associated with it,” he told the Guardian.
Binney, a career NSA employee who first volunteered for the army in the mid-1960s, has now become a high-profile thorn in the side of NSA chiefs when they deny the programme’s existence.
At a hacking conference this summer in Las Vegas, NSA director General Keith Alexander said the NSA “absolutely” did not keep files on Americans.
“Anyone who would tell you that we’re keeping files or dossiers on the American people knows that’s not true,” Alexander told an audience of computer and security experts. But Binney himself was at the same conference and publicly accused Alexander of playing a “word game”.
“Once the software takes in data, it will build profiles on everyone in that data,” he told a convention panel there.
Binney’s outspokenness has earned him media appearances on shows across America’s political spectrum ranging from ultra-conservative Glenn Beck’s TV show to the liberal radio icon of Democracy Now.
“This is not a political issue. People on both sides are concerned,” Binney said.
The story Binney tells is one of extreme over-reaction by America’s national security establishment post-9/11. He recounts developing a small software system, called ThinThread, in the late 1990s at the NSA where he was the technical director of the organisation’s 6,000-strong World Geopolitical and Military Analysis Reporting Group.
ThinThread correlated data from emails, phone calls, credit card payments and Internet searches and stored and mapped it in ways that could be analysed.
Binney wanted to use ThinThread to track foreign threats but it worked too well and kept catching data on Americans too.
So Binney’s team built in safeguards that encrypted that data. But, by 2000, the NSA decided to go with developing a larger scale programme called Trailblazer to be built by outside contractors (that eventually failed to make it past the design stage) and ThinThread was effectively mothballed.
Then September 11 happened. Within a few weeks, Binney says, he realised parts of ThinThread were now being used by the NSA in a massive and secret surveillance operation.
But his safeguards had been removed allowing for far more targeted surveillance of American citizens. “I knew the dangers so I built in protections. And you could still find the bad guys with the protections in it. But that wasn’t what they wanted so they took those things out,” Binney said.
› Twitter complies with prosecutors to surrender Occupy activist's tweets | guardian.co.uk
Twitter has relented in its fight with New York prosecutors to hand over three months worth of messages from an Occupy Wall Street protester ahead of the activist’s criminal trial.
Twitter had argued that the posts belong to Malcolm Harris and as such it would be violating fourth amendment privacy rights if it were to disclose the communications.
But having lost a legal appeal against a subpoena, Twitter faced the prospect of steep fines if it did not comply with the judges order to turn over the tweets to the Manhattan district attorney’s office.
The firm handed over the tweets on Friday after being told by a New York judge that it would be held in contempt after that date.
Twitter has relented in its fight with New York prosecutors to hand over three months worth of messages from an Occupy Wall Street protester ahead of the activist’s criminal trial.
Twitter had argued that the posts belong to Malcolm Harris and as such it would be violating fourth amendment privacy rights if it were to disclose the communications.
But having lost a legal appeal against a subpoena, Twitter faced the prospect of steep fines if it did not comply with the judges order to turn over the tweets to the Manhattan district attorney’s office.
The firm handed over the tweets on Friday after being told by a New York judge that it would be held in contempt after that date.
› Federal court rules cops can warrantlessly track suspects via cellphone | Ars Technica
A 2011 FOIA request from the ACLU revealed that just in the 18-month period beginning October 1, 2008, more than 6,600 people — roughly half of whom were American citizens — were subjected to electronic device searches at the border by DHS, all without a search warrant. Typifying the target of these invasive searches is Pascal Abidor, a 26-year-old dual French-American citizen and an Islamic Studies Ph.D. student who was traveling from Montreal to New York on an Amtrak train in 2011 when he was stopped at the border, questioned by DHS agents, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charges; those DHS agents seized his laptop and returned it 11 days later when, the ACLU explains, “there was evidence that many of his personal files, including research, photos and chats with his girlfriend, had been searched.” That’s just one case of thousands, all without any oversight, transparency, legal checks, or any demonstration of wrongdoing.
Glenn Greenwald (via letterstomycountry)
› Bradley Manning supporter targeted by Feds wins early victory | CNET
A founder of the Bradley Manning Support Network, who says federal agents seized his laptop because of his support for the alleged Wiki-leaker, will have his day in court.
U.S. District Judge Denise Casper in Boston yesterday ruled that a lawsuit challenging activist David House’s border searches and other interviews by government agents may continue.
In an opinion (PDF) rejecting the U.S. government’ request to dismiss the case, Casper wrote that just because “the initial search and seizure occurred at the border does not strip House of his First Amendment rights,” especially because it would have disclosed of “internal organization communications” related to the support network.
[…]
House, with the help of the American Civil Liberties Union, filed the lawsuit against the Department of Homeland Security, arguing that searching and seizing his electronic devices at the border violates his First Amendment and Fourth Amendment rights.
It alleges the unconstitutional search of his hard drive, which was unencrypted, and other devices happened in November 2010, when House was returning from a Mexico vacation and connecting through Chicago’s O’Hare airport. House says that a pair of Homeland Security agents questioned him about Manning, the support network, and Wikileaks.
Yesterday’s ruling was only a preliminary one — it said House had “asserted a plausible” Fourth Amendment and First Amendment claim — and the lawsuit will continue. And Judge Casper denied a request from House to force Homeland Security do disclose exactly what they did with the data from the seized devices.
I think that although the government lost Jones 9-0, it did far better than everyone has recognized so far. I believe that it is more likely than not to prevail in a later case in which it installs a GPS monitor without a warrant and tracks the individual for only a couple of days.
Reactions to Jones v. United States: The government fared much better than everyone realizes | SCOTUSblog
› Surveillance in a Wireless Age
Argument from Justice Sonia Sotomayor about why the judiciary needs to check the use of GPS technology:
Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” […] I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. … I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance.”
The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home…. Can it be that the Constitution affords no protection against such invasions of individual security?
Justice Louis Brandeis in a 1928 dissent.
