Tag Archives: civil liberties

Secret laws, secret memos

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Laws in the United States should not be secret. Laws should be subject to judicial review. Operational details of military actions need not be disclosed but the law and rules governing the military, the Department of Justice or any other part of the government should be publicly open.

Neither is occurring under Barack Obama, any more than under George W. Bush.

The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis.

It is important to note that, not only is this memorandum kept secret, it wasn’t even completed until months after Obama had ordered al-Awlaki killed.

This isn’t American justice.

And the secrecy isn’t limited to international settings. From today’s Wall Street Journal:

The U.S. government has obtained a controversial type of secret court order to force Google Inc. and small Internet provider Sonic.net Inc. to turn over information from the email accounts of WikiLeaks volunteer Jacob Appelbaum, according to documents reviewed by The Wall Street Journal.

Sonic said it fought the government’s order and lost, and was forced to turn over information. Challenging the order was “rather expensive, but we felt it was the right thing to do,” said Sonic’s chief executive, Dane Jasper. The government’s request included the email addresses of people Mr. Appelbaum corresponded with the past two years, but not the full emails.

Both Google and Sonic pressed for the right to inform Mr. Appelbaum of the secret court orders, according to people familiar with the investigation. Google declined to comment. Mr. Appelbaum, 28 years old, hasn’t been charged with wrongdoing.

The court clashes in the WikiLeaks case provide a rare public window into the growing debate over a federal law that lets the government secretly obtain information from people’s email and cellphones without a search warrant. Several court decisions have questioned whether the law, the Electronic Communications Privacy Act, violates the U.S. Constitution’s Fourth Amendment protections against unreasonable searches and seizures.

And note, that the government was seeking to forbid the ISP and Google from even telling the individual that the government was seeking his information. This is like something from the Soviet Union, not our “democracy.”  More the second story from Boing Boing.

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Star Chambers in the US

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Tell me this isn’t un-American and unconstitutional:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

***

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

FISA constitutional challenge survives

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A constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) has survived an en banc rehearing in the Second Circuit Court of Appeals.  The challenge was brought by human rights groups, lawyers and journalists who claim to have been wiretapped or believe they will be wiretapped under FISA without probable cause and in violation of the Fourth Amendment.

The hearing was focused on whether such claimants have standing to bring the challenge.  A three judge panel initially ruled that the plaintiffs had standing, and the the defendants (the government) sought an en banc rehearing.  The en banc appellate panel evenly split 6-6 denying the request for such rehearing. As a result, the initial Second Circuit ruling  affirming standing remains in effect and, unless the decision is appealed to the Supreme Court, the constitutionality of FISA will be, at least initially, be determined by the lower court.

More info here.

Great news.

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One step forward on privacy

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From CNN:

If you get arrested in California for any reason, the photos, e-mails and other personal data on your cell phone are now a bit safer from prying police eyes. A new law now requires law-enforcement officers in that state to obtain a warrant before searching the cell phone of a person placed under arrest.

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What is the Patriot Act really used for?

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The Patriot Act is a civil liberties disaster. It was enacted to be deployed in anti-terror investigations. But how are its provisions actually used? Here is a summary of the use of the Act’s delayed-notice search warrant provisions from 2006-2009:

More from New York Magazine. (via Boing Boing)

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Bullshit quote of the day

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We want to be conscious of civil liberties and civil rights protections—and we are. We don’t do anything without kind of [kind of?] running it through our own civil rights and privacy office. We’re one of only two departments in the federal government that actually has a presidentially-appointed privacy office and officer.

We run all of our programs our technology buys all of those kinds of things we think about privacy and when too much is too much, but on the other hand our responsibility is to maximize our ability to prevent something violent from being successful. So we’re always striking that balance but we think we’ve hit it pretty right.

– Janet Napolitano, arguing that porno scanners protect the privacy of US citizens.

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The right to record law enforcement

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Several states purport to make it a crime to record the public activities of law enforcement officers. This is outrageous, but fortunately in a recent case, the right of citizens to record such activity was affirmed.

In Massachusetts, meanwhile, the right of citizens to record the police has been upheld by the United States Court of Appeals For The First Circuit in the case of Glik v. Cunniffe.  Passerby Simon Glik caught sight of three police officers arresting a young man. Hearing an onlooker shout that the officers were hurting the man, Glik turned on his cellphone and began capturing video. The police officers objected to being recorded, arresting Glik and charging him with violating the state’s “wiretap” law by recording them without their consent, seizing his camera and memory chip as evidence.

The U.S. Court of Appeals held that the right to record police officers in public is a “clearly established” part of the First Amendment’s protections, and held the officers were thus not entitled to qualified immunity, meaning that they could be sued for their actions.  The decision partially rectifies a situation in which for ordinary citizens, ignorance of the law is no excuse, but for police officers and other government officials, it’s an excuse that protects them from being sued.

In these cases, the courts (and juries) stood up for what should be an obvious proposition:  Police officers, doing their jobs on the public dime, don’t have any sort of privacy right against the citizens who pay their salaries.  Those who feel otherwise — mostly police officers and those connected with them — need to rethink the relationship of government to the citizenry, and perhaps reread the Constitution’s prohibition on “titles of nobility.”

In an era when government feels free to record citizens whenever they’re out in public, government officials need to recognize that this recording business works both ways.  Want a surveillance society?  Be prepared to live in it.

And there is this from Reason:

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Chronicle of an assult on the Constitution

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It seems that whenever Americans feel insecure the first actions are to jettison long held Constitutional protections that were created only by revolution and bloodshed. The latest such action, of course, was what happened after the 9/11 attacks, 10 years ago next week.

David Shipler, writing in The American Prospect, outlines chapter and verse of this sad time for the US Constitution. The entire article is worth a read.  The litany of civil liberties abuses is long and should be sufficient to illuminate the very real risks to freedom that fear has generated even in the US.

Here is an excerpt:

… the Patriot Act of 2001 emasculated an array of privacy statutes that had been enacted in the last quarter of the 20th century. In 2008, Congress further amended one of those laws, the Foreign Intelligence Surveillance Act (FISA) to legalize the extensive surveillance that Bush had clandestinely authorized during the weeks following the attacks. At the time, while legislators and civil-liberties groups were arguing over the Patriot Act’s changes to FISA, Bush was evading FISA by ordering the National Security Agency to monitor Internet and phone communications without judicial oversight. Bush’s program sparked outrage in Congress when The New York Times reported it in 2005, but in the 2008 FISA Amendments Act, Congress “gave the government even broader authority to intercept international communications” than the president had given himself, according to a joint report by the inspectors general of the CIA, the National Security Agency, the Justice and Defense departments, and the Office of the Director of National Intelligence.

The inspectors general did not credit the program with many successes. While it “had value in some counterterrorism investigations,” they found, “it generally played a limited role in the FBI’s overall counterterrorism efforts.” Most officials interviewed for the report “had difficulty citing specific instances” when the monitoring had contributed to counterterrorism. A senior CIA official told the investigators that the surveillance “was rarely the sole basis for an intelligence success, but that it frequently played a supporting role.” Other CIA officials discounted the intelligence as “vague or without context.”

Police state grows

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Bad news out of Massachusetts.

Civil libertarians are raising the alarm over the state’s plans to create a Big Brother database that could map drivers’ whereabouts with police cruiser-mounted scanners that capture thousands of license plates per hour — storing that information indefinitely where local cops, staties, feds and prosecutors could access it as they choose.

This is Big Brother in the extreme. How will this data be used? How will it be secured? How long will it be retained? Will private parties (e.g., litigants) be able to subpoena the data?

Just because technology allows this kind of tracking doesn’t mean it should be implemented. The loss of privacy and potential abuse of this kind of data is not outweighed by any legitimate law enforcement benefit.

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Free speech quote of the day

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Since the UK is not an Arab country sitting next to Egypt we are going to hear a lot of complaining about social media. You’ll hear that none of this would have happened if it were not for social media. Twitter is bad. Facebook is bad.

Investigations need to take place. Can we mine the social media companies for information about would-be rioters? Can we call them terrorists?

This will eventually spill over to the US where there is already talk about mining the social media sites. Let’s run everyone’s Twitter feed through Quantico and see if we can profile and find troublemakers. Let’s just throw them in jail now in a pre-crime move that could save lives!

I have argued that the next step on the agenda of tyranny is to license the Internet so only certain users can use it. You’ll need a license to podcast or run a blog. This will be to protect the public of course. France and other countries have already promoted the idea that if you are caught downloading copyrighted material you get put on a three strikes program and can have all your Internet privileges taken away for life. The logic of this is just plain weird. But it is a trend.

Something is afoot and none of it is good. Let’s see how it plays out in the UK. Maybe we should put a no-fly zone over the country? Oh wait, what am I thinking? These are thugs and punks, not freedom fighters and dissidents. These are just plain criminals.

– John C. Dvorak

Egypt on the Bay

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Bay Area Rapid Transit (BART) logo

Image via Wikipedia

Officials of Bay Area Rapid Transit block cellular communication at its some of its stations and all underground subway tunnels throughout the San Francisco Bay area yesterday. They did because they believe it would disrupt protestors, who were upset by the shooting of a 45 year old man by BART officers last month.

Officials were concerned that the protestors “would use mobile devices to coordinate their disruptive activities and communicate about the location and number of Bart police,” the transit agency said Friday afternoon in a statement. Cutting off cellphone service for several hours at selected stations was “one of many tactics to ensure the safety of everyone on the platform,” Bart said.

Where have we seen this before? Perhaps Egypt’s action in shutting off the Internet to its citizens during the recent uprising.

How can a public agency in this country take this sort of action unilaterally? The consequences of such a communications black-out could be extremely bad. Imagine doctors’ emergency calls not getting through? How could people call the police if needed for protection? And further, since when can a governmental agency cut off public communication without violating the First Amendment? As stated by the EFF:

Cell phone service has not always been available in BART stations. The advent of reliable service inside of stations is relatively recent. But once BART made the service available, cutting it off in order to prevent the organization of a protest constitutes prior restrain[t] on the free speech rights of every person in the station, whether they’re a protestor or a commuter. Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.

Oh, and the anticipated demonstrations never even occurred.

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H.R. 1981: here we go again (updated)

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The House Judiciary has passed a bill that is yet another assault on privacy. And, consistent with past practice, such bills are always named so as to produce a compliant public response.

Proponents of the H.R. 1981 bill have titled it the Protecting Children from Internet Pornographers Act of 2011. It’s believed by some that the legislation will help lift law enforcement out of the “dark ages”.   Agents will be able to subpoena IP information instead of needing a court-ordered warrant. Investigators will have a further leg up when identifying child porn distributors and users since the bill ensures that the “footprints of predators are not erased,” according to Rep. Debbie Wasserman Schultz.

Rep. John Conyers of Michigan believes the bill is mislabeled. “This is not protecting children from Internet pornography. It’s creating a database for everybody in this country for a lot of other purposes,” he says.

This is so typical. There is a massive invasion of privacy by the Federal government and one of the scary “3Ps” is trotted as the primary purpose of the bill. The three Ps, as all Americans should know by now are pedophilia, pornography and piracy.

Besides civil libertarians, who else is opposed to the bill? The Electronic Frontier Foundation,  the ACLU, EPIC, and others.

Update: More from LifeHacker, including what to do to protect yourself, here.

Your best bet is to find yourself a good VPN provider and hook it up to a good VPN tool to encrypt and route all your internet traffic through a third-party that isn’t your ISP. Virtual Private Networks creates secure, encrypted connections between your computer and a server on the internet, then routes all your internet activity through that server. Your ISP would only really be logging the IP address of your VPN server, which doesn’t give them much of your private info.

Tor is one of the easiest ways to browse anonymously online (even if it isn’t perfect). If you’re a Chrome user, you can even create a simple Tor toggle button to use it only when you really need it. By anonymizing your browsing, your ISPs won’t have a record of what you’ve been doing. They’ll know you were online, but the details won’t be available to them or the police. Of course, there’s no assurance that any anonymous browsing tool will provide full protection but it’s definitely better than nothing at all. If setting up Tor seems a little daunting, Vidalia can help simplify the process. You’ll also want to read our guide on protecting your privacy when downloading for more suggestions.

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The airports are not enough

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So now, it is not enough for the TSA to hassle citizens at the airports. The highways offer new opportunities.

An off-duty Transportation Security Administration agent faces a misdemeanor harassment charge after allegedly tailing, flashing his badge and blowing his car horn at a woman who was driving too slowly for him, police said on Wednesday.

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Political quote of the day

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In a free country, you should never feel comfortable being searched. This is not the country I was born in. We’re a fascist nation now.

– Jesse Ventura, former wrestler and governor of Minnesota, speaking to a DOJ attorney following a court hearing. Ventura has filed a case challenging the legality of TSA groping procedures.

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