• 5/16, David Kravets, Wired, Cops Should Get Warrants to Read Your E-Mail, Attorney General Says
• 5/15, Daniel Klaidman, The Daily Beast, How GITMO Imprisoned Obama
• 5/15, Glenn Greenwald, Guardian (UK), The major sea change in media discussions of Obama and civil liberties
• 5/15, Sahar Aziz, CNN, Muslims to Tea Party: Welcome to our world
• 5/15, Editorial Board, New York Times, After Attacking The A.P., a Peace Offering
• 5/15, Charlie Savage, New York Times, Criticized on Seizure of Records, White House Pushes News Media Shield Law
• 5/13, Gar Smith, Berkeley (CA) Daily Planet, Drones or No Drones? The Debate Drones On

• 5/15, Joan Biskupic and David Ingram, Reuters, Analysis: Once a beacon, Obama under fire over civil liberties
• 5/14, Audie Cornish, NPR, Justice Department Under Fire For IRS Audits, AP Phone Logs
• 5/14, Charlie Savage, New York Times, Lawyers Press Pentagon to Abide by Detainee Deal
• 5/14, Editorial Board, Washington Post, Damage to press freedom likely outweighs national security gain
• 5/14, Charlie Savage and Scott Shane, New York Times, Justice Dept. Defends Seizure of Phone Records

On May Day, the Berkeley Peace and Justice Commission (PJC) and the Berkeley Police Review Commission (PRC) held a town hall on the issue of drones in Berkeley, which is part of Alameda County. County Sheriff Greg Ahern’s plans to purchase a drone, made public in fall of last year, spurred activists to push for a public hearing in February. The hearing was packed with residents of the county who were vocally opposed to the purchase. Without a clear policy, Sheriff Ahern would potentially be able to lend his drone to the Berkeley Police Department and other cities. He would also be able to fly his drone into Berkeley if he were in pursuit of a suspect.

In December of last year, the City Council started discussing a potential drone policy for the City of Berkeley. While the PJC recommended that Berkeley be a no-drone zone, some of the city council members were convinced that an all out ban was not ideal. They felt that drones could be used for “natural disasters, to locate missing persons or assist in crime investigations.” After voting down the PJC’s proposal, the council directed the PJC, along with the PRC and the Disaster and Fire Safety Commission to work together to make a recommendation.

The May 1st town hall featured overviews of the legal concerns drones raise from attorney Linda Lye of the ACLU of Northern California, who made it clear why drones are “qualitatively different” from other forms of aerial surveillance. Jennifer Urban, Professor and Co-Director at the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley, explained that courts are much slower than technological change, meaning that Fourth Amendment jurisprudence can lag years behind the widespread implementation of technology like drones. The upshot of her analysis? Community action and legislative fixes are the necessary response.

Parker Higgins, privacy activist for the Electronic Frontier Foundation(EFF) emphasized the technical aspects of drones and how they affect privacy, and Neil Satterlund of Alameda County Against Drones (ACAD) emphasized concerns around mission creep, meaning hat drones would inevitably be used for purposes far beyond what they were originally approved for.

One of the most powerful voices at the hearing was that of Andrea Pritchett of Berkeley Copwatch. She  succintly explained why a no-drones zone was the best solution. Reflecting on Copwatch’s documentation of existing abuses of police power in Berkeley, Andrea stated that regulations on the use of drones such as those suggested by the ACLU would be:

wonderful in a climate with effective police accountability. In the absence of a way to control the police, even the best guidelines, restrictions, suggestions, are not really gonna have an impact.

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As the hunger strike at Guantánamo has widened to include all of the men held there, President Obama recently announced that he would renew a push on Congress to close the prison and examine his administrative options. However, the implication that Congress is preventing the closure of Guantánamo is at best disingenuous.

Obama has the power to transfer prisoners from Guantánamo right now.  The president himself has placed a uniform ban on transferring any prisoners to Yemen, a collective punishment policy that he could reverse immediately. He could also release prisoners by issuing a certification through the Department of Defense and State that the administration has steps to assure the secure release and monitoring of the prisoners.

Moreover, President Obama’s seemingly newfound rhetorical opposition to indefinite detention runs counter to the policies of his administration. While he may have tried to move the prisoners to the United States, he still wanted them indefinitely detained, in violation of the Constitution and International Law. This has left even supporters of his detention policy befuddled.

The Guantánamo hunger strike can only be ended by the administration taking meaningful steps to close the prison. Those steps can begin immediately by releasing the 86 men who have been cleared for release by the government itself. The remaining men should either be given a speedy and fair trial or released as well.

The men at Guantánamo are resolute to peacefully protest through a hunger strike until they receive justice. One of them, Moath Hamza Ahmed al-Alwi put it this way:

I do not want to kill myself. My religion prohibits suicide. But I will not eat or drink until I die, if necessary, to protest the injustice of this place. We want to get out of this place. It is as though this government wishes to smother us in this injustice, to kill us slowly here, indirectly, without trying us or executing us.

Currently, 21 of the men, including Mr. al-Alwi, are bring force-fed in violation of medical ethics. The force-feeding process is brutal, as was described by one prisoner in an New York Times op-ed and can constitute torture, if undertaken as a form of punishment.

As the hunger strike continues, people across the world are pushing for the closure of Guantánamo and an end to indefinite detention. A change.org petition started by a former Guantánamo prosecutor, calling for the prison’s closure, has gained over 100,000 signers in less that two days. From May 17-19, people of conscience will stand together to demand that President Obama close the United States’ forever prison.

The beginning of April brought HB46 to the Missouri statehouse.  The bill, titled the “Preserving Freedom from Unwarranted Surveillance Act,” bans use of government surveillance drones over Missouri properties.  Representative Casey Guernsey (R) drafted the legislation in response to the Environmental Protection Agency’s (EPA) use of drones to search for clean water violations on farms and large feedlots in western states.  Representative Guernsey explained the legislation simply, saying, “I believe the citizens of this state deserve and expect a reasonable amount of privacy.”  The bill, now under review in the state senate, would prohibit an individual, state, or other entity’s use of a drone “to gather evidence or other information relating to criminal conduct or a violation of a statute or regulation except to the extent authorized in a warrant.”  The bill specifically names farms and other agricultural industry as being exempt from any warrantless surveillance.  At risk of otherwise being unsafe or imprudent, the bill ”does not prohibit the use of a manned aircraft, drone or unmanned aircraft by a law enforcement agency if the agency possesses reasonable suspicion that, under particular circumstances, swift action to prevent imminent danger to life is necessary or by a higher education institution conducting certain educational, research, or training programs.”

Some members of the Missouri state legislature argue that, even with the latter caveat, the bill offers dangerous protections.  Representative Jeff Roorda (D) said that by including manned aircrafts, the bill, “goes way too far. It disables law enforcement’s ability to keep us safe.”  Representative Guernsey allegedly responded by saying, “If you live where I live and you followed what was going on all of last year of the government literally spying on farmers in Iowa and Nebraska I think you’d feel a little bit differently, especially if you were a farmer.”

Idaho governor  C.L. “Butch” Otter (R) also signed a bill into law on Thursday which would restrict the use of drone aircrafts by police and public agencies as the use of unmanned aircrafts within borders is increasing.  The passage of this bill into law makes Idaho the second state in the U.S. (after Virginia) to restrict pilotless aircraft use due to privacy concerns. In most cases, the statute requires law enforcement agencies to get a warrant in order to collect evidence about suspected criminal activity via drones.  The only exceptions to this are if the case involved illegal drugs, public emergencies or search-and-rescue missions.  The law also forbids surveillance of individuals or property without written consent.

The bill introduced in Missouri and the law passed in Idaho combat the Federal Aviation Administration’s eventual goal to allow routine drone operations in U.S. airspace, and challenge the government’s tendency to ignore personal privacy for the “sake of safety.”  BORDC has drafted model legislation to address domestic surveillance drones on a local scale within townships, cities and states, and we urge activists to use this model to start movements in their area.  BORDC is also available to consult on organizing campaigns, and we can be contacted at organizing [at] bordc [dot] org.

This week, Bill of Rights Defense Committee is releasing model drone legislation to assist local communities and states in the growing battle against domestic surveillance drones. BORDC worked with the organizers across the country  who have been leading the opposition against rushed drone proliferation. The American Friends Service Committee, Alameda County Against Drones, the No Drones Network,  and the Tenth Amendment Center all consulted on the language.

In response to the diversity of grassroots organizing efforts currently taking place, there are two models of the legislation. One creates a drone free zone, meaning it completely prohibits the use of drones over a city or county to the extent legally permissible. The other strictly limits the use of drones to specific situations. Both of the models contain significant explanations of why unregulated drone proliferation and use is so deeply concerning.  They also contain policy statements urging action at the state and federal level to restrict drone use.

The regulated use of drones model allows law enforcement to use drones only when they have obtained a warrant from a judge and they certify that drones are the least expensive and best option. It would also allow non-law enforcement missions, including search and rescue, fire response and prevention, and hazardous material spills but the language ensures that these exceptions will be strictly regulated.  Additionally, there are very strict auditing requirements and regulations on the use and destruction of data obtained via drones.  Portions of this model were contributed by civil rights lawyer David Frankel, representing a grassroots coalition called Aligning for Responsible Droning (“ARD”).

The need for action on drones right now is clear. As the prefatory clauses of the model legislation emphasize, drones have the potential to introduce ambient and persistent surveillance, meaning surveillance could be everywhere at all times and impossible to avoid. That’s because the drone technology ensures that specific and limited surveillance is impossible. When strict regulations are not imposed, drones can potentially catch images of everyday activity on their way to and from specific missions and law enforcement can use that information in any way they want. There is little incentive for law enforcement not to exploit this ability. What’s worse is that drone use will exacerbate the targeting of vulnerable groups by law enforcement.  Biased policing through the local enforcement of federal immigration laws, arrests for low level victimless crimes and racial and religious profiling will inevitably increase.

Because of the major concerns around domestic surveillance drones, activists and community leaders across the country have  begun to put the halt on unimpeded drone proliferation. Legislatures in at least 31 states have introduced measures to regulate, limit, or prohibit the use of drones for domestic surveillance. However, not all of the legislation has had the chance to get to a vote, and many of these bills contain significant loopholes. That is why action at the local level is opportune. Recently, Charlottesville, VA, became the first city to pass a resolution imposing a moratorium on drones, and called on state officials to implement a statewide moratorium.  Just this month, St. Bonaficius, MN, followed suit, outlawing the use of drones for up to 400 feet above the city. Similarly, as the result of the advocacy of the group Alameda County Against Drones the Public Protection Committee of the Alameda County Board of Representatives held a packed public hearing around Sheriff Greg Ahern’s purchase of a surveillance drone.

The surge in organizing around the domestic use of drones  has dovetailed with growing concern at the national level over the use of drones for so-called “targeted killings” overseas. Last year, in December 2012, representatives of various groups around the country created the Network to Stop Drone Surveillance and Warfare (NSDSW), a “nationwide grassroots network to stop drone surveillance and warfare.” The group’s national month of action in April has kicked off with demonstrations across the country, and has already helped increase awareness of the issues around domestic and foreign drone use. Joe Scarry of the No Drones Network and NSDSW, notes:

Starting with the protest at Creech Air Force Base in Nevada at the end of March, events and actions have taken place so far in Boston, New York City, Philadelphia, Baltimore, Fayetteville, Ft. Wayne, Dayton, Chicago, Janesville, Minneapolis, San Francisco, and San Diego, and dozens more are planned throughout the month.

The month of action highlights three sets of institutions that encourage the proliferation of drone technology; drone manufacturers, colleges and universities conducting drone research, and military bases involved in operating drones.

Not content to rest with killing thousands of civilians overseas, the drone industy is seeking to expand their market by spying on Americans at home, and they have spent millions of dollars to lobby Congress to that effect. Drone manufacturers and their representatives have made it plain that they are willing to go to any length to ensure widespread adoption of their military technology. As demonstrated by the presence of a drone caucus in congress, elected officials are listening to them.

The good news, however, is that the time is ripe for local organizing. The drone lobby is far weaker in cities or counties, where BORDC’s model legislation is intended to be used. The models are organizing tools, and BORDC encourages local grassroots groups to edit and customize them as needed. With the availability of both models, as well as myriad resources in an annotated version of the legislation , these models can be used anywhere by anyone, including organizers without a legal or technical background.

BORDC is also available to consult on organizing campaigns. You can contact us at organizing [at] bordc [dot] org. Review our model legislation today, and join us in saying no to drone surveillance in your community!

The Cyber Intelligence Sharing and Protection Act (CISPA) is continuing to move through Congress despite major, unresolved privacy issues.

Several weeks ago, privacy advocates, consumers associations, and technology companies all worked together during the Cyber Intelligence Sharing and Protection Act (CISPA) Week of Action to address the major privacy flaws in CISPA, H.B. 624. The week of action was a major success, with companies such as Craigslist and Firefox taking part and thousands of people contacting their representatives in Congress to express their concern around CISPA. However, the fight over CISPA is just beginning. Last week, CISPA passed out of the House Intelligence Committee by a vote of 18-2.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions. Yet as EFF’s Mark Jaycox correctly notes:

The best example of a dangerous undefined term in the bill is found within the overly broad legal immunity for companies. The clause grants a company who acts in ‘good faith’ immunity for ‘any decisions made’ based off of the information it learns from the government or other companies. . . Companies should not be given carte blanche immunity to violate long-standing computer crime and privacy law. And it is notoriously hard to prove that a company acted in bad faith, in the few circumstances where you would actually find out your privacy had been violated.

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President Obama came to office promising government transparency and accountability, but throughout his presidency, has acted more aggressively than any other president to silence government whistleblowers who might expose corruption, fraud and general wrongdoing.  Since 2009, Obama has used the World War I-era Espionage Act six times to prosecute government officials suspected of leaking classified information.  A Bloomberg report on this intimidation campaign summarized the objections this way: “the president’s crackdown chills dissent, curtails a free press and betrays Obama’s initial promise to ‘usher in a new era of open government.’”

The logic behind the prosecution of whistleblowers is that a government has the right to protect itself and its own best interests, and as a result, should be allowed to punish treasonous citizens.  Woodrow Wilson argued that the Espionage Act allowed the government to protect itself against “insidious methods of internal hostil activities” and  declared it unlawful in a time of war to publish information that the president may determine to be “of such character that it is or might be useful to the enemy.”  Following this logic, it seems reasonable that Obama would  crackdown on whistleblowers.  The problem, though, Glenn Greenwald of The Guardian wrote, is that:

…This Obama whistleblower war has nothing to do with national security. It has nothing to do with punishing those who harm the country with espionage or treason.  It has everything to do with destroying those who expose high-level government wrongdoing. It is particularly devoted to preserving the government’s ability to abuse its power in secret by intimidating and deterring future acts of whistleblowing and impeding investigative journalism.

Greenwald makes an important point here; the common thread between the cases of  every whistleblower that has been prosecuted since 2009 is the growing strain of witnessing acts of fraud, corruption and flagrant unconstitutionality.

The four whistleblowers from the National Security Agency (“The NSA Four”) all echo the struggle of being asked to hold classified information that is clearly in violation of the law.  Thomas Drake, William Binney, J. Kirk Weibe and Edward Loomis make up the NSA Four, who were falsely accused of leaking confidential information in 2007.  According to The Nation, the NSA Four have now endured years of harassment for “exposing the waste and fraud behind a multibillion-dollar contract for a system called Trailblazer, which was supposed to “revolutionize” the way the NSA produced signals intelligence (SIGINT) in the digital age.”

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On February 26, the Supreme Court heard oral arguments in the case Maryland v. King, which raised the question of whether the Fourth Amendment permits warrantless DNA collection upon an individual’s arrest but without charge.  The case began on April 10, 2009, when Alonzo King was arrested for pointing a shotgun at a group of people.  He admitted his guilt, was originally charged with a felony assault and ended up pleading guilty to a misdemeanor.

At the time of King’s arrest, the police swabbed his mouth to gather a DNA sample, which matched DNA from an unsettled rape case four years prior – King was convicted of first-degree rape and sentenced to life in prison.  His warrantless DNA sample was the only evidence linking him to the rape case; the police had no probable cause to sample his DNA.  Patricia Millet, who heads the Supreme Court practice at Atkin Gump, explained this by saying ,”DNA is more commonly used not to identify the individual but to link the individual to other crimes for which he is not otherwise a suspect (or at least there is not probable cause to think he committed the other crime.”

There are several problematic facets to warrantless DNA collection, the first of which is that this specific form of testing appears unconstitutional according to our Fourth Amendment protections.  This is the ground on which the Supreme Court will determine whether police can conduct DNA testing upon arrest, but there are far more complex issues beyond the simple constitutionality of this sampling.

Invasion of Privacy

Justice Stephen Breyer argued that DNA tests are “no more intrusive” than fingerprints but “much more accurate.”  This is a gross overstatement on Breyer’s part – unlike fingerprints, DNA tracks an individual’s medical history, ancestry, gender – even whether or not an individual is adopted.  It is a wonder that Justice Breyer argued DNA tests are “much more accurate,” being that in 2011, over 10,500 DNA samples were taken, only 19 of which led to arrests.  Not only, then, are DNA samples fairly unproductive, resulting in a meager percentage of arrests, but they also expose some of our most personal information.

Racial Bias

DNA tests are already used as racial dragnets among whole families and communities of color, The Nation argues. Because the majority of individuals stopped by police are African American and Latino men, DNA samples taken in these instances are inherently skewed, representing a disproportionate number of men of color.  The Nation writes, “DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems.  By 2008, Britain’s National Database stored DNA from 27% of the black population and 77% of black males.” It is imposible to overstate the racial, age and gender bias present in DNA databases.

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Last year, the Associated Press won a Pulitzer Prize for revealing that New York City Police Department (NYPD) has spied on Muslim Americans, as well as their non-Muslim clients, customers and classmates over a decade both across the greater New York area and even well beyond its jurisdiction.

Today, impacted communities are continuing to respond. A lawsuit has been brought against the NYPD on behalf of Muslims in New Jersey, but has been delayed in court as lawyers for the city have asked the court to dismiss the case before examining evidence.

Further, on March 11, a coalition of Muslim groups, including the Muslim American Civil Liberties Coalition (MACLC) and the Creating Law Enforcement Accountability and Responsibility (CLEAR), delivered a report of the devastating consequences that spying has had on the people it targets.

The report is based on interviews with 57 American Muslims in the city and reveals that the spying, far from being secret, was fairly well known and has created a “pervasive climate of fear and suspicion.” The report details the impact on nearly every aspect of everyday life, from religious life to freedom of speech to relationships with law enforcement to forming friendships. The report concludes with a request to the NYPD to end its surveillance program and for the City Council to establish more oversight of the police.

One young woman said, “Even if we know we have rights, we know they don’t apply equally to everyone.”

The police have defended themselves by claiming that they were acting within constitutional limits. New York Police Commissioner Raymond Kelly outlined the principle of the surveillance program, which is, “In its effort to anticipate or prevent unlawful activity, including terrorist acts, the NYPD must, at times, initiate investigations in advance of unlawful conduct.”

Yet the head of the NYPD Intelligence unit admitted under testimony that the surveillance program had not produced any terrorism or criminal leads during his six year tenure. The intelligence department has reportedly cost the city $1 billion since 2001.

Despite these assaults on their rights, community members remain resilient. The recently-formed New York City Muslim Club is eschewing other organizations’ ban on talking politics. The club is out to participate in the next mayoral race, and is also campaigning for recognition of Muslim holidays in public school calendars. The club, as well as a separate AL Jazeera estimate, claims that as many as 10 percent of the city’s population is Muslim.