The American Bear

› Spying on Muslims: A Q&A on the lasting damage of NYPD's surveillance | NJ.com

“The long-term damage has yet to be seen. There are reasons surveillance tactics aren’t tolerated in free societies. You have an entire segment of the population withdrawing its voice from public conversations. That’s something that is in some ways immeasurable.” — Diala Shamas

Across the Hudson, the New York Police Department’s stop-and-frisk tactics are on trial, accused of systematically violating the rights of young men — mostly minorities — who were detained and searched with little or no cause.

Meanwhile, the NYPD’s insidious surveillance of Muslim communities — in New York, but also in Newark, Paterson and on college campuses — continues as it has since shortly after 9/11.

The mapping, photographing and infiltration of Muslims in New York and New Jersey was a secret program until the Associated Press unearthed documents proving its existence. In all that time, it has never produced a single terror-related lead.

Earlier this month, a coalition of Muslim watchdog groups released “Mapping Muslims: NYPD Spying and Its Impact on American Muslims,” a 56-page report that catalogs the damage caused by the department’s spy ops.

Star-Ledger editorial writer Jim Namiotka spoke last week with Diala Shamas, a Liman Fellow at CUNY’s law school and one of the report’s co-authors. An edited transcript appears below.

Read on →

› Appeals Court Curbs Border Agents' Carte Blanche Power to Search Your Gadgets | David Kravets

A federal appeals court for the first time ruled Friday that U.S. border agents do not have carte blanche authority to search the cellphones, tablets and laptops of travelers entering the country — a “watershed” decision in the court’s own terms and one at odds with the policies of the President Barack Obama administration.

The ruling by a divided 11-judge panel of the 9th U.S. Circuit Court of Appeals is the most significant privacy decision in the digital age following the Supreme Court’s ruling last year requiring authorities to get warrants to place GPS tracking devices on suspects’ vehicles. Under Friday’s ruling, for the first time digital devices are granted limited relief from the so-called “border search exception” of U.S. law that allows international travelers — including U.S. citizens and their luggage and vehicles — to be searched for any reason as they enter the country.

“A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind,” Judge M. Margaret McKeown wrote (.pdf) for the 8-3 court. “When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.”

In dissent, Judge Milan Smith wrote that the ruling opens the nation’s borders “to electronically savvy terrorists and criminals who may hereafter carry their equipment and data across our borders with little fear of detection.”

The President George W. Bush administration first authorized the suspicionless, electronics search rules in 2008. The 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 Department of Homeland Security data.

The decision brings to light the friction between the 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 DHS’s civil rights watchdog, for example, last month* reaffirmed the Obama administration’s position 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 San Francisco-based appeals court said that view was too extreme.

Continue →

* Related (and, as a bonus, negatively affected by this ruling): 2 Out of Every 3 Americans Lost Fourth Amendment Protections To DHS

› Drones are coming home to skies near you: feel safer? | Kade Crockford

[…] Ultimately, it doesn’t matter whether we trust the authorities to impose limits upon themselves when it comes to deployment of surveillance technologies that legislators nor courts have specifically circumscribed. The fact is that the law is out of date. The Bill of Rights was written a long time ago, well before cellphones, the internet, spy drones or even video cameras were invented. Our Electronic Communications Privacy law is woefully obsolete, itself predating widespread usage of three of those four technologies.

We need to bring the Bill of Rights into the 21st century for the same reason the ACLU and others want the Obama administration to tell us its legal rationale for its overseas killing operations: the public should know what rules the government is bound by, particularly when it comes to our rights to privacy and due process. Unfortunately, that’s simply not the case. Today, we live in an era of secret law, from top-secret CIA and military killings abroad, all the way down to the DOJ’s view of law enforcement location tracking powers here in the US. Where the law doesn’t explicitly provide guidance, we are largely ignorant of how the government interprets its authorities with respect to new technologies, its powers, and our rights.

Meanwhile, engineers and coders are not slowing down to wait for our state legislators or federal representatives to catch up. Just this week, I read about “research to build drones that can stop moving boats and cars” – what the technologists call “crime-stopping drones”. The week before that, it was a drone the size of a fist that can fly through your window and kill you.

Then, there is the privacy-lover’s worst nightmare: the all-seeing Argus, which can simultaneously watch an entire city and multiple targets within it. We are so far behind on digital privacy that it’s hard to imagine what the next phase of technological development has in store for our privacy interests. But we better shape up quickly before things like brain-computer interface technology and Darpa’s slime robots become more than abstractions.

Drone apologists say that police helicopters can already monitor us from the skies, but it’s clear as day that drone technology is different. The diversion tactic, on the other hand, is not: we hear similar refrains to counter public outcry about other technologies, too, like when police departments say license plate readers just enable police to do what they’ve always done more efficiently, and when they tell us that iris scans are nothing more than a modern fingerprint.

If it were true that “nothing changes” with the advent of these tools, law enforcement would support efforts to limit the privacy harms that the new technologies alone enable. Instead, the state security apparatus more often than not fights civil libertarian efforts to do so at every level. [++]

› ‘Homeland Security’ Allotted $791 Billion Since 9/11

(Source: jayaprada)

› 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.

› Government Unable to Define 'Homeland Security' | Threat Level

What is “homeland security?” The federal bureaucracy doesn’t know, and that’s problematic for a government that has been fighting the ill-defined “war on terror” following 9/11, according to a new report from the Congressional Research Service.

In short, “homeland security” is whatever the government says it is.

Thirty federal entities — among them agriculture, education, labor, treasury and social security — are receiving “homeland security” funding. The actual Department of Homeland Security, created in the aftermath of 9/11, receives 52 percent of the “homeland security” money pie, according to the Tuesday report.

“Ten years after the September 11, 2001, terrorist attacks, the U.S. government does not have a single definition for homeland security,” the report said. “Currently, different strategic documents and mission statements offer varying missions that are derived from different homeland security definitions.”

› Homeland Security Wants to More Than Double Its Predator Drone Fleet Inside the US, Despite Safety and Privacy Concerns | Trevor Timm

Despite renewed criticism from both parties in Congress that domestic drones pose a privacy danger to US citizens—and a report from its own Inspector General recommending to stop buying them—the Department of Homeland Security (DHS) has indicated it wants to more than double its fleet of Predator drones used to fly surveillance missions inside the United States.

Yesterday, California Watch reported that DHS signed a contract that could be worth as much as $443 million with General Atomics for the purchase up to fourteen additional Predator drones to fly near the border of Mexico and Canada. Congress would still need to appropriate the funds, but if they did, DHS’ drone fleet woud increase to twenty-four.

While many people may think the US only flies Predator drones overseas, DHS has already spent $250 million over the last six years on ten surveillance Predators of its own. Customs and Border Protection (CBP)—a division of DHS—uses the unmanned drones inside the U.S. to patrol the borders with surveillance equipment like video cameras, infrared cameras, heat sensors, and radar.

They say the drones are vital in the fight to stop illegal immigrants, but as EFF reported in June, the DHS Inspector General issued a report faulting DHS for wasting time, money, and resources using drones that were ineffective and lacked oversight. The Inspector General chastised the agency for buying two drones last year despite knowing these problems and recommended they cease buying them until the problems could be fixed.

Perhaps worse, DHS is also flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies for missions beyond immigration issues. We know they have lent the drones out to the county sheriff’s department in North Dakota and the Texas Rangers, among others, but unfortunately, we don’tknow the full extent DHS lending program. DHS, as is their custom, is keeping that information secret.

In response, last month EFF sued DHS under the Freedom of Information Act demanding answers about how and why it loans out its Predator drones to other law enforcement agencies across the country. EFF’s lawsuit asks for the records and logs of CBP drone flights conducted in conjunction with other agencies.

These drones pose a multitude of privacy concerns to all Americans, as the Congressional Research Service (Congress’ non-partisan research arm) detailed in this comprehensive report on domestic drones and the Fourth Amendment. The report explains drones can be equipped with, among other capabilities, facial recognition technology, fake cell phone towers to intercept phone calls, texts and GPS locations, and in a few years, will even be able to see through walls.

Despite these concerns, DHS has not publicly issued any privacy rules to make sure drones do not spy on US residents in border states going about their daily lives. In fact, at a Congressional hearing on the subject, DHS refused to send anyone to testify, leading both parties to criticize their absence.

This is even more troubling given DHS is also leading the push to get local police agencies to purchase their own drones by handing out $4 million to agencies to “facilitate and accelerate” their use. The FAA estimates as many as 30,000 drones could be flying over US territory by the end of the decade. [++]

› Homeland Security office OKs efforts to monitor threats via social media | Center for Investigative Reporting

A little-known privacy office in the Department of Homeland Security has given its stamp of approval to an ongoing initiative aimed at monitoring social media sites for emerging threats.

Congress created the department’s privacy office in 2003 to review major initiatives and databases and make certain those initiatives respected the rights of Americans, while also enabling homeland security officials to better collect and share information about possible terrorism and criminal suspects.

The department first began experimenting with the possibility of social media monitoring in 2010 with pilot programs that targeted public reactions to the earthquake in Haiti, the Winter Olympics in Vancouver and the Deepwater Horizon oil spill. The privacy office has since conducted compliance reviews every six months, with the most recent assessment [PDF] published last week.

Although the pilot programs were narrow in focus, privacy and civil liberties groups have long worried that the department’s monitoring would expand to all online speech with no reasonable suspicion that a crime had occurred.

As Americans turn to social media sites like Twitter and Facebook to communicate with one another, intelligence officials are looking for ways to harness that ocean of data and convert it into actionable information.

From a piece I posted a few days ago:

Don’t you assume that every email of yours, every blog post and comment, every telephone call, anything you write or say using media of any kind is monitored by some government agency or other, if only they decide to check up on you, for any reason they dream up or for no reason at all, just because they’re bored and, hell, you look like you might be fun to investigate for a while? I have assumed exactly that for years. I find it hard to believe that everyone doesn’t make the same assumption. … But “privacy”? You don’t have any. You haven’t had any for a long, long time.

Anyway, still troubling news…

› DHS: Our Reports To Congress Are Successful Bullshit | Techdirt

› Inquiry Cites Flaws in Regional Counterterrorism Offices | NYTimes

The report found that the centers “forwarded intelligence of uneven quality — oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already published public sources, and more often than not unrelated to terrorism.”

The investigators reviewed 610 reports produced by the centers over 13 months in 2009 and 2010. Of these, the report said, 188 were never published for use within the Homeland Security Department or other intelligence agencies. Hundreds of draft reports sat for months, awaiting review by homeland security officials, making much of their information obsolete. And some of the reports appeared to be based on previously published information or facts that had long since been reported through the Federal Bureau of Investigation.

The Congressional investigators also found that the reports were often derided by homeland security analysts who reviewed the work. “I see nothing to be gained by releasing this report,” one analyst wrote repeatedly on several draft reports.

“This report does not provide the who, what, when, where, how,” another official complained about a document.

The investigators also discovered that federal officials cannot account for as much as $1.4 billion in taxpayer money earmarked for fusion centers and that some of the centers listed on paper by the Homeland Security Department do not even exist.

The report also lays out problems in protecting citizens’ privacy as the centers gathered and disseminated intelligence.

› DHS Counterterror Centers Produce 'A Bunch of Crap,' Senate Finds | Spencer Ackerman

They’re supposed to be “one of the centerpieces of our counterterrorism strategy,” according to Janet Napolitano, the Secretary of the Department of Homeland Security. In practice, not so much.

The Senate’s bipartisan Permanent Subcommittee on Investigations found no evidence that DHS’ 70-plus fusion centers — places where state, local and federal law enforcement analyze and share information – uncovered a single terrorist threat between April 1, 2009 and April 30, 2010. Terrorism is thankfully rare within the United States. But during that time, the FBI discovered would-be New York subway attacker Najibullah Zazi; U.S. Army Major Nidal Malik Hasan killed 13 people at Fort Hood; Umar Farouk Abdulmutallab tried to blow up a Detroit-bound airplane; and, in early May 2010, Faisal Shahzad attempted to detonate an SUV in Times Square. DHS has praised the fusion centers’ work in helping on the Zazi and Shahzad cases. The Senate found fusion centers played little, if any, role in either case.

“Nor,” the Senate panel writes in its just-released report, analyzing more than 80,000 fusion center documents, “could [the inquiry] identify a contribution such fusion center reporting made to disrupt an active terrorist plot.” Unnamed DHS officials told the panel the fusion centers produce “predominantly useless information” and “a bunch of crap.” An internal 2010 assessment, which DHS did not share with Congress, found that a third of all fusion centers don’t have defined procedures for sharing intelligence — “one of the prime reasons for their existence.” At least four fusion centers identified by DHS “do not exist,” the Senate found.

As civil libertarian groups have long warned (.pdf), those that do are hives of incompetence, bureaucracy, mission creep and possible civil-liberties abuses. Despite instituting privacy protections in 2009, the Senate report discloses, “DHS continued to store troubling intelligence reports from fusion centers on U.S. persons, possibly in violation of the Privacy Act.” A third of reviewed fusion center intelligence reports either “lacked any useful information” on terrorism or potentially violated civil liberties. Other reports sat for months, until their information was “obsolete” by the time DHS published it. Instead of focusing on terrorism, “most information” from the centers was about ordinary crime, such as “drug, cash or human smuggling.”