As critical issues eluded corporate media over the past month, BORDC staff continued to open dialogue on developments concerning civil liberties. Recent themes include the Obama Administration’s inaction towards realizing rights-based campaign promises, and the erosion of law in a national security state.

On Wednesday, April 24, Communications Specialist Samantha Peetros appeared on Bread and Roses to discuss the local lockdown following the Boston Marathon bombings. Examining the friction between knowledge of one’s rights and genuine safety concerns, Samantha explains:

it was an overwhelming experience to see…the National Guard….. At the same time there is that sense of comfort, and it’s hard to deal with those conflicting thoughts. But I’m also very aware of what this could mean for civil liberties…”

Samantha also raised questions regarding possible outcomes if the public chose not to cooperate with state and federal agents during the Boston lockdown.

On Monday, May 6, Legal Fellow Michael Figura appeared on Connecticut’s Counterpoint Radio to discuss the ongoing hunger strike in the Guantánamo Bay. Michael explains the dire situation facing many unjustly and indefinitely detained men at the detention camp:

Over half of them have been cleared for release by the United States Government…yet they’re still held there. Many of these men have been held there 10-11 years now.

This austere, peaceful protest staged by over one-hundred men, which has prompted further human rights violations by our government, draws greater scrutiny to the globally infamous injustices inside Guantánamo Bay. However, while the Obama Administration chants its chorus of closure, an end to Guantánamo remains unseen.

Also on May 6, Executive Director Shahid Buttar appeared on the NextNewsNetwork to discuss the Obama Administration’s policies including extrajudicial assassination of US citizens and dragnet surveillance. Shahid follows this commentary with a compelling discussion of the consistent evasion of judicial review by presidents from both political parties, and Congress’ abdication of its constitutional responsibilities. He suggests (at 11:15) that the rule of law no longer exists in the United States, before observing a disturbing double standard between mass incarceration for minor crimes, and the continuing prestige — and public paychecks — for war criminals such as John Yoo and federal appellate judge Jay Bybee.

Stay with us for the latest BORDC press hits and coverage of issues that impact the liberties and lives of all Americans.

For a comprehensive view of BORDC’s latest news coverage, and to find out how to reach staff for comment, and more, view our online press resources.

An updated version of the Electronic Communications Privacy Act (ECPA) of 1986 has been approved by the Senate Judiciary Committee. The ECPA governs  privacy regulations for nearly everything on the internet, and has not been updated in 27 years, despite significantly evolved technology. Other reforms for the ECPA were passed by the committee November 2012, but not voted on by the whole Senate before the end of their session.

The current ECPA requires a warrant for emails less than six months old. Other information stored online or older emails can be accessed by government officials with only a subpoena. The current version of the law has led to many confused and contradictory legal rulings on what counts as “electronic storage,” a term defined before cloud computing. The updated version passed by the Judiciary Committee, would require officials to get a search warrant from a judge before searching for any online data.

The Bill of Rights Defense Committee, as part of the Digital Due Process Coalition, joined over eighty other organizations and companies to send a letter to the Chairman of the Senate committee, Patrick Leahy, endorsing the amendments to the law. The letter states that the updates, “would provide clarity and certainty to law enforcement agencies at all levels and to American businesses developing innovative new services and competing in a global marketplace.” Other cosigners included Microsoft, Facebook, Mozilla, Twitter, Google, and Yahoo.

The BORDC’s Shahid Buttar said that:

Laws protecting our privacy online have been obsolete for decades, leaving all Americans at risk of arbitrary electronic seizures. The proposed reforms to ECPA are not enough by a long shot, but  it is long past time for Congress to fix the digital exception to the 4^th amendment.

These updates to ECPA must be passed in the Senate and the House before they are approved, but according to Politico, Congress is not expected to oppose the bipartisan amendments. It is important to remember that just a week ago the House of Representatives passed the Cyber Intelligence Sharing and Protection Act (CISPA). The Senate has not seemed eager to approve CISPA and is making small steps towards protecting our online information by updating ECPA, but more regulation is needed to bring constitutional protection into the digital age.

• 4/23, The Associated Press, Associated Press, CISPA bill in limbo after it passed House; Senate too busy
• 4/23, Andrew Rosenthal, New York Times, Security, Privacy and Bloomberg
• 4/23, Ernesto Londoño, Washington Post, Drones cause ‘growing hatred of America,’ bipartisan Senate panel told
• 4/23, Ryan Gallagher, Slate, More Surveillance Will Not Stop Terrorist Acts
• 4/23, Natasha Lennard, Salon, The money helping CISPA through Congress
• 4/23, Dean Meminger, NY1 News, Bloomberg, Kelly Applaud Counter-Terror Surveillance Of Lower Manhattan
• 4/23, Sabrina Siddiqui, Huffington Post, Obama Administration Skips Senate Drone Hearing

• 4/23, Tom Keane, Boston Globe, Surveillance and privacy
• 4/22, Jason Leopold, TruthOut, Inmates Rising: Worsening Gitmo Mass Hunger Strike in Prisoners’ Own Words
• 4/22, Jerry Markon, Sari Horwitz and Jenna Johnson, Washington Post, Dzhokhar Tsarnaev charged with using ‘weapon of mass destruction’
• 4/22, Matthew J. Belvedere, CNBC, ‘Islamophobia’ Concern Hinders Officers: Former CIA Head
• 4/22, Editor, New York Times, Criminal Complaint Against Dzhokhar Tsarnaev
• 4/22, Kevin Cirilli, Politico, 10 facts about enemy combatants
• 4/22, Tracie Hunte, WNYC, NYPD Commissioner Calls for More Surveillance Cameras
• 4/21, Wendy Kaminer, The Atlantic, ‘We Don’t Cower in Fear’: Reconsidering the Boston Lockdown

On Thursday, April 18, despite unresolved  and integral privacy issues, the House of Representatives voted against privacy and approved the Cyber Intelligence Sharing and Protection Act (CISPA). The legislation passed with 288 votes in favor and 127 against. While the majority of yes votes were Republican, nearly half of the Democrats in the House voted yes.

The vote comes on the heels of the CISPA Week of Action, in which corporations and Americans made their opposition to the bill clear. Companies such as Craigslist and Firefox took part and thousands of people contacted their representatives in Congress to express their concern around CISPA. Earlier this week, the White House also issued a veto threat, stating:

[T]he administration still seeks additional improvements and if the bill, as currently crafted, were presented to the president, his senior advisers would recommend that he veto the bill.

CISPA passed out of the House Intelligence Committee last week by a vote of 18-2. The bill was marked up in a closed session on Thursday, April 10, despite urgings from the privacy and civil liberties community to the contrary. BORDC, along with 40 other organizations, signed a letter urging an open and transparent markup. The closed markup begs the question: if the bill presents no privacy concerns, why not move it forward in a transparent and open way?

Unsurprisingly, the markup did not yield a significantly improved version of the bill. The committee voted down four amendments that would have significantly increased privacy protections. On the floor, the House voted down further privacy amendments, including one amendment that:

would have ensured companies’ privacy promises — including their terms of use and privacy policies — remained valid and legally enforceable in the future. Another would have curbed police ability to conduct warrantless searches of CISPA-shared data.

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, brushing over the legal protections from liability for negligent actions by corporations that the bill creates. This is hardly surprising, consider the corporate interests behind the bill, and the dollars they have spent on lobbying. In fact, CISPA supporters spent 140 times as much lobbying as CISPA opponents. Similarly, CISPA supporters have donated 13 times more money in campaign contributions as CISPA.

However, it appears that the Senate has not been convinced. The bill still has to be approved in the Senate, and it appears that they are not eager to move.  Senate reticence and the White House veto threat are good news, but anyone concerned about online privacy should continue to check out Electronic Frontier Foundation’s CISPA action page.

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!

A new computer system in place in New York is taking frighteningly efficient measures to monitor the city, and now could be sold off to other cities as well. The program, known as Domain Awareness System, will connect 3,500 cameras in public places, license plate readers, radiation detectors, 911 calls, and police data into one central database in real time. Soon New Yorkers will not be able to drive their cars or walk down the street without being recorded and potentially watched by the police at all times.

Sociologist Amitai Etzioni warned that the new system could lead to invasions of privacy “much greater than anything we have seen so far.” And the New York Civil Liberties Union is suing the NYPD to make public the details of its security camera and license plate readers. The NYCLU Executive Director Donna Liberman called the program, “an invitation to abuse.”

Other buyers will be able to purchase the software–for a hefty price of several million dollars. Microsoft, the maker of the program, has refused to identify potential buyers of the program, but has said that other American cities and police departments or even large sporting events have expressed interest in it. The city will get 30% of the profits from the sale. Those profits will be reinvested in “counterterrorism and crime prevention programs”…”In other words, more surveillance,” writes Jesssica Huseman of Policymic. As Huseman points out, even if the city stays to its ethical promises about its use of the Domain system (doubtful given all of the racial profiling allegations of late), the same could not be said of its buyers. And as New York profits financially off of other area’s privacy losses, the system will become even more enmeshed into the city’s infrastructure.

And although the NYPD claims the system is for terrorism prevention only, the city’s repressive and invasive security measures have been facing much criticism lately. The city is still on trial for its ” stop and frisk” policy that one state senator testified was meant to “instill fear” in people of color (updates available here). In more recent weeks, Muslim communities in New York City and elsewhere brought reports and trials protesting their targeted surveillance by authorities and the murder of teen Kimani Gray has once again brought to light the violence against people of color by the police.

In March, Mayor Bloomberg shot back at critics of the new system, saying “You wait, in five years, the technology is getting better, they’ll be cameras everyplace…whether you like it or not. The argument against using automation is just this craziness that ‘Oh, it’s Big Brother.’ Get used to it!” At the same event, he admitted that someday New York may have drones with facial recognition software.

The NYPD have been notoriously repressive in their tactics of late. Yet this new system stands to benefit them while invading the privacy of the majority of New Yorkers, and it could be coming to a town or sporting event near you.

• 4/10, Chris O’Brien, Los Angeles Times, CISPA passes House committee, angering privacy activists
• 4/10, Andy Sullivan, Yahoo! News, Obama budget makes cybersecurity a growing U.S. priority
• 4/10, Declan McCullagh, CNET, IRS claims it can read your e-mail without a warrant
• 4/10, Jennifer Martinez, The Hill, House Dem to offer set of amendments to cyber intelligence-sharing bill
• 4/9, Spencer Ackerman, Wired, Blood Money, Kill Lists, Favors for Favors: Deep Inside the CIA’s Targeted Killings
• 4/9, Editor, The Hartford Guardian, Hartford Group to Protest Guantanamo
• 4/9, NPR Staff, NPR, ‘Way Of The Knife’ Explains CIA Shift From Spying To Killing

• 4/10, Conor Friedersdorf, The Atlantic, New Evidence That Team Obama Misled Us About the Drone War
• 4/10, Josh Peterson, The Daily Caller, House cyber bill not a surveillance bill, says bill sponsors
• 4/9, Michael Boldin, Tenth Amendment Center, California NDAA Nullification Bill Passes Assembly Committee Unanimously
• 4/9, Kevin Gosztola, Fire Dog Lake, Believe It or Not, WikiLeaks Can Be an Organization That Accepts Leaks & Archives Information
• 4/9, Carol Rose, Boston.com, License plate readers threaten privacy
• 4/9, Jonathan Oosting, Michigan Live, Indefinite detention: Michigan House panel approves ‘push back’ against federal government
• 4/9, Natasha Lennard, Salon, Government notifies lawyers of force-fed Gitmo hunger strikers
• 4/9, Jordy Yager, The Hill, Senate Judiciary panel to see legal justification for killing US citizens

• 4/8, Nadia Kayyali, People’s Blog for the Constitution, BORDC releases model legislation to address domestic surveillance drones
• 4/7, Scott Shane, New York Times, Targeted Killing Comes to Define War on Terror
• 4/7, Benjamin Wittes, Lawfare, Memo to the New York Times Editorial Page on Detention and Lawlessness
• 4/6, Alan Rozenshtein, Lawfare, Motions on Clapper‘s Implications for Standing in the Hedges Second Circuit Appeal
• 4/5, Editor, RT, Ohio town wants to implement massive aerial surveillance program
• 4/5, Editorial Board, New York Times, Hunger Strike at Guantánamo
• 4/5, Shibani Joshi, Fox News, Google Suits Up for FBI Privacy Battle