The right to photograph

Law enforcement officers often claim that it is not legal to shoot police activity or publicly owned buildings. Here is an example:

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The courts have consistently ruled that it is legal to photograph and film in public, including filming law enforcement officers in their line of duty For example, see here.

(via 22 Words)

More here.

Which is most important?

We now know that the CIA breached the security of a computer system used by the Senate Intelligence Committee in preparing its report concerning the black site torture programs that the US undertook in the aftermath of 9/11. The breach by the CIA is an astounding attack on the separation of powers. It should be condemned and John O. Brennan, CIA Director, should be fired over the action.

But one should not lose sight of the fact that the CIA’s breach of the Intelligence Committee privacy is orders of magnitude less critical than the torture that was put in place by Americans in black sites. Not only should Brennan be fired, everyone who participated in the torture program, ordered it or demanded its creation, should be prosecuted, pursuant to the United Nations Convention against Torture, international law to which this country is a party after the US Senate ratified the treaty on October 19, 1994.  That law, among other things, requires the following actions:

Article 2 of the convention prohibits torture, and requires parties to take effective measures to prevent it in any territory under its jurisdiction. This prohibition is absolute and non-derogable. “No exceptional circumstances whatsoever”[6] may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict.[7] Torture cannot be justified as a means to protect public safety or prevent emergencies.[7] Neither can it be justified by orders from superior officers or public officials.[8] The prohibition on torture applies to all territories under a party’s effective jurisdiction, and protects all people under its effective control, regardless of citizenship or how that control is exercised.[7] Since the convention’s entry into force, this absolute prohibition has become accepted as a principle of customary international law.[7]

In addition, under the Convention, all governments are required to prosecute torturers:

All governments are responsible for the prosecuting offenders under the international criminal prosecution system that applies to torture. The principle of universal jurisdiction obliges all countries where alleged offenders are found to either extradite those who torture for prosecution by the government that is more directly affected (e.i., the country where the offences were committed, or the country of citizenship of the victims or the abusers), or to initiate prosecution themselves. (See UN Convention against Torture, articles 5, 6, 8).

The most important action is to restore in the United States a firm rule of law ensuring torture will never again be practiced by Americans.

The surveillance state reaches nearly everyone

The political culture of spying and surveilling is broad-based and, it seems, virtually out of control. No one is safe.

And we now know that this includes the Senate Intelligence Committee. Yesterday, it was announced that CIA officials hacked into a purportedly secure computer network system being used by that Committee to research and prepare a report outlining the details of the CIA’s torture program carried out under the Bush administration, and swept under the rug by the Obama administration.

Back in March, 2014, Senator Dianne Feinstein accused the CIA of such spying. At that time, John O. Brennan, head of the CIA, made the following public comments:

“We are not in any way shape or form” trying to “thwart” the report’s release, Brennan said. The CIA “was in no way was spying on the” committee “or the Senate.”

“Nothing could be further from the truth,” Brennan said to Mitchell, in response to whether the CIA had improperly breached the intelligence committee’s segregated computer network. “We wouldn’t do that. That’s beyond the scope of reason.”

Brennan’s response to Feinstein was muted compared to last week, when he said in a statement he was “deeply dismayed that some members of the Senate have decided to make spurious allegations about CIA actions that are wholly unsupported by the facts.” In an implicit criticism of intelligence committee members, Brennan said, “I would encourage others to refrain from outbursts that do a disservice to the important relationship that needs to be maintained between intelligence officials and Congressional overseers.”

And, CIA officers read the emails of the Senate investigators and sent a criminal referral against Senate staffers to the Justice Department based on false information. CIA personnel also gave misleading information to the the CIA Inspector General, who issued the report.

It now seems clear that no one is safe from prying eyes. When the CIA spies on the Congress (or any other officials), it has clearly overstepped its bounds and violated separation of powers protections. At a minimum, Brennan should be fired. However, here is the Obama White House reaction:

The White House publicly defended Mr. Brennan on Thursday, saying he had taken “responsible steps” to address the behavior of C.I.A. employees, which he said included suggesting an investigation, accepting its results and appointing an accountability board.

Asked whether the results of the investigation presented a credibility issue for Mr. Brennan, Josh Earnest, the White House press secretary, said, “Not at all.”

Crediting Mr. Brennan with playing an “instrumental role” in helping the United States government destroy Al Qaeda’s leadership in Afghanistan and Pakistan, Mr. Earnest said, “He is somebody who has a very difficult job, who does that job extraordinarily well.”

Communications collected by the NSA are an attractive nuisance

Michael P. Lynch has written an important analysis of the NSA’s large and growing collection of the full content of American’s communications. He highlights the dangers of abuse of such a collection and the essay is worth a careful read.

It’s been a while since we all became aware of what the National Security Administration has been up to. But as revelations of government breaches recede and the concerns of daily life resume, the public occasionally needs a reminder. A recent story in The Washington Post was exactly that. It laid out in detail what many had long suspected: that the N.S.A., in targeting foreign nationals, is collecting and storing extremely large amounts of information on many American citizens. This information is not restricted to metadata; it is content — photos, web chats, emails and the like. While United States law prevents targeting American citizens without a warrant (even if it is just a warrant from the secret FISA court) nothing currently prevents the N.S.A. from engaging in this “incidental collection” and no law prevents the agency — and other United States intelligence and law enforcement agencies — from accessing such content without a warrant into perpetuity.

We’ll get to know the consequences of our current policies on global warming. But the abuse of knowledge isn’t going to be so obvious.
Discussion of the Washington Post story has tended to concentrate on its eye-catching point that (at least) 90 percent of the data being collected is “incidental” in this way. But what, if anything, is wrong with the incidental collection of personal information? Should we be more or less alarmed by it?

My own view is that the storage of incidentally collected data is very wrong indeed. But the reasons that make it wrong also help to explain, I think, why as a nation we sometimes seem to refuse to resist it, and perhaps sympathize more than we should with Representative Mike Rogers’ comment from last year that your privacy can’t be violated if you don’t know about it.

The first reason many N.S.A. activities, including this one, are wrong is instrumental or consequential: they are potentially dangerous for the simple reason that they invite abuse that, should it occur, will be particularly difficult to uncover. To see this, reflect on the fact that the N.S.A. database is often referred to as a “pool of information.” This is an apt metaphor. In the law, swimming pools are called attractive nuisances. They attract children, and as a result, if you own a pool, even if you are a watchful, responsible parent yourself, you still have to put up a fence. Similarly, even if we can trust that the architects of the N.S.A.’s various programs had no intention of abusing the information they are collecting about American citizens, the pool of information could easily prove irresistible.

And the bigger the pool the more irresistible it is likely to become. This is not just common sense, it explains why the N.S.A.’s repeated assertions that they aren’t actually looking at the content of emails, or targeting Americans, should have been greeted with skepticism. The pool of data is a pool of knowledge. Knowledge is power; and power corrupts. As a consequence it is difficult to avoid drawing the inference that absolute knowledge might corrupt absolutely.

This “incidental” collection of data, under EO 12333 and other NSA programs, is creating and more and more alluring collection that is used not only by the NSA but by the FBI and the CIA. And all of the collection is accomplished without a warrant. The Constitution does not authorize warrantless collection of Americans’ communications without a warrant. And there is a good reason for requiring warrants.

Human Rights Watch, ACLU raise alarm over the surveillance state

Human Rights Watch has just released a report, partnering with the ACLU, that concludes that the current surveillance state is infringing on the ability of journalists and lawyers to do their jobs.

Large-scale US surveillance is seriously hampering US-based journalists and lawyers in their work, Human Rights Watch and the American Civil Liberties Union said in a joint report released today. Surveillance is undermining media freedom and the right to counsel, and ultimately obstructing the American people’s ability to hold their government to account, the groups said.
The 120-page report, “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy,” is based on extensive interviews with dozens of journalists, lawyers, and senior US government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented US government surveillance of electronic communications and transactions. The report finds that government surveillance and secrecy are undermining press freedom, the public’s right to information, and the right to counsel, all human rights essential to a healthy democracy.

* * *

For lawyers, large-scale surveillance has created concerns about their ability to meet their professional responsibilities to maintain confidentiality of information related to their clients. Failure to meet those responsibilities can result in discipline through professional organizations, or even lawsuits.

Lawyers also rely on the free exchange of information with their clients to build trust and develop legal strategy. Concerns over government surveillance are making it harder for attorneys – especially, but not exclusively, defense attorneys – to build trust with their clients or protect their legal strategies. Both problems corrode the ability of lawyers to represent their clients effectively.

As with the journalists, lawyers increasingly feel pressure to adopt strategies to avoid leaving a digital trail that could be monitored. Some use burner phones, others seek out technologies designed to provide security, and still others reported traveling more for in-person meetings. Like journalists, some feel frustrated, and even offended, that they are in this situation. “I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said one.

The result of the anxieties over confidentiality is the erosion of the right to counsel, a pillar of procedural justice under human rights law and the US Constitution, Human Rights Watch and the ACLU found.

The American people need to wake up. And lawyers ought to be out petitioning the government over such practices as intercepting the emails written by prisoners to their attorneys.

Birds of a feather?

King Abdullah ibn Abdul Aziz in 2002

King Abdullah ibn Abdul Aziz in 2002 (Photo credit: Wikipedia)

Guess who has a new BFF.

Of course, it is the NSA. And the new friend is the brutally repressive Saudi Arabian state police apparatus, according to a report at The Intercept:

The National Security Agency last year significantly expanded its cooperative relationship with the Saudi Ministry of Interior, one of the world’s most repressive and abusive government agencies. An April 2013 top secret memo provided by NSA whistleblower Edward Snowden details the agency’s plans “to provide direct analytic and technical support” to the Saudis on “internal security” matters.

The Saudi Ministry of Interior—referred to in the document as MOI— has been condemned for years as one of the most brutal human rights violators in the world. In 2013, the U.S. State Department reported that “Ministry of Interior officials sometimes subjected prisoners and detainees to torture and other physical abuse,” specifically mentioning a 2011 episode in which MOI agents allegedly “poured an antiseptic cleaning liquid down [the] throat” of one human rights activist. The report also notes the MOI’s use of invasive surveillance targeted at political and religious dissidents.

But as the State Department publicly catalogued those very abuses, the NSA worked to provide increased surveillance assistance to the ministry that perpetrated them. The move is part of the Obama Administration’s increasingly close ties with the Saudi regime; beyond the new cooperation with the MOI, the memo describes “a period of rejuvenation” for the NSA’s relationship with the Saudi Ministry of Defense.

* * *

Asked if the U.S. takes human rights records into account before collaborating with foreign security agencies, a spokesman for the office of the director of national intelligence told The Intercept: “Yes. We cannot comment on specific intelligence matters but, as a general principle, human rights considerations inform our decisions on intelligence sharing with foreign governments.”

Absolutely terrific news. Saudi Arabia is the country that created, and fundedAl-Quaeda, tortures its own citizens and severely represses women’s freedom. We now know that the NSA is willing to look the other way to help a country that is at least partially responsible for 9/11. Your tax dollars at work.

Sucks to be Amazon

From the New York Times:

Writers are peeved at Amazon. On Thursday, investors became disgruntled too.

The company, which is embroiled in a very public conflict with the publisher Hachette, announced second-quarter losses nearly double what Wall Street predicted. It also warned that the third quarter would be worse. Much worse.

That was enough to make the stock plummet in after-hours trading. Shares quickly fell 10 percent, shaving more than $15 billion in value from the high-flying retailer.

Amazon long ago proved that it could sell vast quantities of goods to tens of millions of people, and that it could simultaneously develop new businesses while innovating with old ones.

What is a more debatable question is when — or even if — all those investments will truly pay off.

Amazon is quickly reaching a “do or die” moment. Big sales numbers mean nothing to investors if there is no profit. And Amazon hasn’t made a significant profit in it’s entire operating history dating back to 1994.

Break time

Andrew Sullivan is running a contest on his site to find the best cover of an original hit. He pulls this one up, and it is a two for the price of one production.  It is a snarky treatment by the Pet Shop Boys of U2′s song “Where the Streets Have No Name.” Snarky in the sense of treating U2′s classic anthem as no more profound or creative than the pop hit “Can’t Take My Eyes Off You.” The Boys run the two songs together seamlessly.

U2′s response was “What have we done to deserve this?” That plays off the Pet Shop Boys hit “What Have I Done to Deserve This?,” featuring Dusty Springfield.

PCLOB to investigate use of Executive Order 12333

I previously described the nature and operation of Executive Order 12333, which allows warrantless collection of communications by Americans, provided only that the collection occurs overseas. Now, the Privacy and Civil Liberties Oversight Board has announced to it will examine the surveillance activities conducted un EO 12333.

The Washington Post reports:

An independent privacy watchdog agency announced Wednesday that it will turn its focus to the largest and most complex of U.S. electronic surveillance regimes: signals intelligence collection under Executive Order 12333.

That highly technical name masks a constellation of complex surveillance activities carried out for foreign intelligence purposes by the National Security Agency under executive authority. But unlike two other major NSA collection programs that have been in the news lately, EO 12333 surveillance is conducted without court oversight and with comparatively little Congressional review.

The Privacy and Civil Liberties Oversight Board, an independent executive branch agency, over the last year has taken in-depth looks at the other two NSA programs. It concluded the bulk collection of Americans’ phone call metadata under Section 215 of the Patriot Act was illegal and raised constitutional concerns. By contrast, it found the gathering of call and email content under Section 702 of the Foreign Intelligence Surveillance Act to be lawful, though certain elements pushed “close to the line” of being unconstitutional.

Now the board is planning to delve into EO 12333 collection, among other topics. It is not clear, however, how deep or broad its examination will be.

“It’s obviously a complex thing to look at 12333,” but “it’s something we’ll likely be delving into,” said a member of the Privacy and Civil Liberties Oversight Board who requested anonymity in order to speak freely. The board has highlighted 12333 issues in the past. For example, each agency is supposed to have guidelines to carry out the executive order, but some guidelines are three decades old. The board has encouraged the guidelines be updated, the source said.

Rules for US watch lists, no-fly lists and selectee lists leak

Seal of the United States National Counterterr...

Seal of the United States National Counterterrorism Center. (Photo credit: Wikipedia)

The Intercept has obtained and published the governments rules for operating its various watch lists, including no-fly lists and lists that call out certain airline passengers for special screening.

The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.

The “March 2013 Watchlisting Guidance,” a 166-page document issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

* * *

While the nomination process appears methodical on paper, in practice there is a shortcut around the entire system. Known as a “threat-based expedited upgrade,” it gives a single White House official the unilateral authority to elevate entire “categories of people” whose names appear in the larger databases onto the no fly or selectee lists. This can occur, the guidelines state, when there is a “particular threat stream” indicating that a certain type of individual may commit a terrorist act.

This extraordinary power for “categorical watchlisting”—otherwise known as profiling—is vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation.

The rulebook does not indicate what “categories of people” have been subjected to threat-based upgrades. It is not clear, for example, whether a category might be as broad as military-age males from Yemen. The guidelines do make clear that American citizens and green card holders are subject to such upgrades, though government officials are required to review their status in an “expedited” procedure. Upgrades can remain in effect for 72 hours before being reviewed by a small committee of senior officials. If approved, they can remain in place for 30 days before a renewal is required, and can continue “until the threat no longer exists.”

“In a set of watchlisting criteria riddled with exceptions that swallow rules, this exception is perhaps the most expansive and certainly one of the most troubling,” Shamsi, the ACLU attorney, says. “It’s reminiscent of the Bush administration’s heavily criticized color-coded threat alerts, except that here, bureaucrats can exercise virtually standard-less authority in secret with specific negative consequences for entire categories of people.”

* * *

In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, “any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),” cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the information is then uploaded to the TIDE database.

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition—”e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”—details about pets from veterinarians or tracking chips—is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

* * *

For the living, the process of getting off the watchlist is simple yet opaque. A complaint can be filed through the Department of Homeland Security Traveler Redress Inquiry Program, which launches an internal review that is not subject to oversight by any court or entity outside the counterterrorism community. The review can result in removal from a watchlist or an adjustment of watchlist status, but the individual will not be told if he or she prevails. The guidelines highlight one of the reasons why it has been difficult to get off the list—if multiple agencies have contributed information on a watchlisted individual, all of them must agree to removing him or her.

If a U.S. citizen is placed on the no fly list while abroad and is turned away from a flight bound for the U.S., the guidelines say they should be referred to the nearest U.S. embassy or consulate, which is prohibited from informing them why they were blocked from flying. According to the rules, these individuals can be granted a “One-Time Waiver” to fly, though they will not be told that they are traveling on a waiver. Back in the United States, they will be unable to board another flight.

This is totally out of control and subject to no significant oversight. Americans, in particular, should not be labelled as terrorists or potential terrorists based on the decisions of faceless bureaucrats subject to no significant oversight. How can these programs be labelled as anything other than the creation of a police state in America. As the New York Times reports:

Civil libertarians have also challenged the watch lists because the standards for being added to them are murky and people are generally not notified that they have been included or told why. Last month, a Federal District Court judge in Oregon ruled that the procedures for reviewing whether it was appropriate to have put someone’s name on the no-fly list were inadequate and violated Americans’ Fifth Amendment right to due process.

And I agree with this take by Conor Friedersdorf, writing in The Atlantic:

The Obama administration should be condemned for its policy. There is no defense for its avowed belief that a system as opaque and unchallengeable as what it propagates and defends can protect the civil rights and civil liberties of those subject to it. The Congress should also be criticized for permitting two successive presidents to transgress against core American norms and values in this realm. The former Constitutional law lecturer in the Oval Office knows that this system transgresses against basic rule-of-law norms, but has evidently persuaded himself that normal safeguards aren’t needed so long as he is in charge. Obama defenders should recalibrate their esteem for the president accordingly. 

Apple places huge orders for iPhone 6

The Wall Street Journal is reporting that Apple plans to manufacture many more iPhone 6 devices than they produced last year for the iPhone 5S.

The Cupertino, Calif., company is asking suppliers to manufacture between 70 million and 80 million units combined of two large-screen iPhones with 4.7-inch and 5.5-inch displays by Dec. 30, according to people familiar with the matter.

Its forecast for what is commonly called the iPhone 6 is significantly larger than the initial order last year of between 50 million and 60 million versions of the iPhone 5S and 5C—which had a display measuring 4-inches diagonally, these people said. Both of the coming models are expected to feature metal cases similar to the iPhone 5S and likely come in multiple colors, these people said.

Of course, Apple has made no public announcement regarding its plans. The Journal article is interesting, since Apple will release its Fiscal Quarter 3 earnings after the market closes today.