- 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
Posts Tagged ‘warrantless surveillance’
Proposals to update the email privacy law, the Electronic Communications Privacy Act (ECPA), are moving quickly in Congress. ECPA is in dire need of an update as it was written in the mid-1980s long before the advent of ubiquitous webmail and cloud storage. In the past, ECPA was used by the Department of Justice (DOJ) to obtain emails and other private online messages older than 180 days without a probable cause warrant. If law enforcement sought those same messages in the physical world, a warrant would be required. This difference is not only wrong, but also inconsistent with the Fourth Amendment. Senators Patrick Leahy and Mike Lee plan to fix this.
Last month, S. 607, a bill sponsored by Senators Leahy and Lee, passed out of the Senate Judiciary Committee. The bill requires that law enforcement obtain a warrant if it wants any private online messages, like private Facebook messages or Twitter direct messages. TheDigital Due Process coalition, a diverse coalition of privacy advocates (including EFF) and major companies, has worked hard to advance ECPA reform and should be commended for its work. But because many agencies and companies already require a warrant for all private online messages, more could be done to bolster the law.
In United States v. Warshak (2010), the Sixth circuit ruled that the 180-day rule, as written, was unconstitutional. At a hearing last month, the DOJ Office of Legal Policy finally admitted that emails older than 180 days should logically be protected by a warrant. That statement suggests that that the DOJ will be seeking warrants for all private online messages going forward.The bill should go beyond the status quo. Missing in the bill is a suppression remedy. In the current draft, if law enforcement obtained your email without a warrant, in violation of the revised law, nothing would prevent that illegally obtained evidence from being admitted in a criminal trial. A suppression remedy is a common sense addition to the bill ensuring that its impact is equal to its intent: ensuring all private virtual messages—just like any other private physical message—are available to the government only with a warrant based on probable cause.
But even before DOJ’s admission, many companies already required a warrant before they allow law enforcement access to a user’s private messages. In The Hill, Google, Microsoft, and Yahoo—the three largest webmail providers—said they require the government obtain a search warrant before accessing private content. In addition, Facebook and Twitter also require a warrant for private messages. Our Who Has Your Back campaign lists even more companies.
Senators Leahy and Lee provided a good start for ECPA reform. Likewise, the DDP coalition has done tremendous work to move the bill forward. But ECPA reform must do more than codify the status quo. At the minimum, any bill passed by Congress should have a suppression remedy.
5/10, Kevin Collier, Salon, Congress wants to let you unlock your cellphone
5/10, A.M. Gittlitz, TruthOut, Double Jeopardy: New York Activist Subpoenaed for Secret Grand Jury – Again
5/10, Max Fisher, Washington Post, Photos from Guantanamo’s force-feeding facilities
5/10, Natasha Lennard, Salon, Hidden in immigration reform, vast biometrics plan
5/10, Jonathan Weisman, New York Times, I.R.S. Apologizes to Conservative Groups Over Application Audits
5/9, Mark M. Jaycox, Electronic Frontier Foundation, Update to Email Privacy Law Must Go Further
5/8, Laurie Jo Reynolds and Stephen F. Eisenman , Creative Time Reports, TruthOut, Tamms Is Torture: The Campaign to Close an Illinois Supermax Prison
5/8, Scott Thistle, Bangor (ME) Daily News, Bill to allow police to use drones without search warrant heads to Maine Senate
5/7, Erin Durkin, Daily News (NY), On Muslim Surveillance, Bloomberg Questions Mayoral Candidates’ Intelligence
5/7, Charlie Savage, New York Times, U.S. Weighs Wide Overhaul of Wiretap Laws
5/7, Staff, Pew Research Center for the People & the Press, After Boston, Little Change in Views of Islam and Violence
5/6, John Knefel, Rolling Stone Magazine, Everything You’ve Been Told About Radicalization Is Wrong
5/7, Adrian Chen, Gawker, Newly Declassified Memo Shows CIA Shaped Zero Dark Thirty’s Narrative
5/7, Paul Rosenzweig, Lawfare, CISPA – An Assessment
5/7, Greg Miller, Washington Post, CIA selects new head of clandestine service, passing over officer tied to interrogation program
5/6, Eyder Peralta, NPR, Prisoner Points To Quran Search For Gitmo Hunger Strike
5/6, CBS Staff, CBS (LA), Civil Rights Groups Sue LAPD, LA County Sheriff’s Department Over Automatic License Plate Readers
The Montgomery County Civil Rights Coalition (MCCRC) held a public forum on April 18 to discuss what effect “The War on Terror” has had on free expression and grassroots political organizing in Maryland and across the United States since 9/11. The forum featured four speakers whose presentations discussed a number of demonstrations of federal, state and local surveillance and their disruption of peaceful activism. The forum was opened by Kit Bonson, who explained the MCCRC’s desperate formation, saying:
The Montgomery County Civil Rights Coalition (MCCRC) started because in the fall of 2010, 7 activists in Minneapolis and Chicago awoke one morning to find that their houses were being raided by the FBI. Boxes and boxes of their possessions were confiscated, including computers, papers, and family photos. Although they were never charged with any crime, they were called to testify in front of a Grand Jury.
In response, activists here in our area, as well as in cities around the country, came together to protest the use of the FBI and the Grand Jury process to harass and intimidate movement organizers. Basically, we wanted to stand in solidarity with activists who had not committed crimes or advocated anything other than nonviolence action. It was from these events that MCCRC was founded.
Saqib Ali, formerly a Maryland state legislator, is now the Director of the Council on American-Islamic Relations Maryland chapter (CAIR-MD). Ali spoke about the overwhelming surveillance of Muslim-American communities throughout the United States, describing the three major issues facing these communities as the “No Fly” list; the FBI’s infiltration of mosques and the growing presence of FBI informants in mosques; and the near-constant surveillance of Muslim communities. Ali explained that the “No Fly” list prohibits many Muslim-Americans from travel back and forth between the United States and countries abroad where family members may still be located. Ali specifically noted that the Transport Security Administration (TSA) compiles their “No Fly” list fairly arbitrarily, and lacks any legal recourse; not only is the reason for being on a “No Fly” list murky at best, but it becomes nearly impossible to remove oneself from that list.
Ali also discussed the FBI infiltration of mosques, both as a means to surveil Muslim community worshiping therein, as well as to persuade mosque members towards terrorist action and subsequently stage their arrests. He also discussed the more local development of an NYPD “Demographics” Unit, which singled out Muslim community centers of all kinds throughout New York and New Jersey for surveillance. He described the “Demographics” Unit as a “wide, indiscriminate dragnet of Muslim everyday things: barber shops, bookstores…”
Sue Udry, the Executive Director of the Defending Dissent Foundation (DDF), broadened the discussion beyond the Muslim-American community to discuss the many different examples of legitimate activism being disproportionately targeted by local, state and federal law enforcement agencies. She specifically mentioned the “Ag Gag laws,” which aim at preventing whistleblowers from exposing any wrongdoing within agricultural operations. Within these Ag Gag laws is the Animal Enterprise Terrorism Act (AETA) which Udry and DDF describe as:
Shahid Buttar, Executive Director of BORDC will be appeared as a guest on Thom Hartmann’s show The Big Picture on Friday, April 19 at 7pm ET. Thom Hartmann is a progressive, nationally syndicated talk show host and author of 24 books in print on issues ranging from class conflict, national security and economics to ADHD and American history.
Shahid was welcomed back to the Thom Hartmann program as a guest panelist to discuss U.S. National Security and the war on terror. The panel specifically addressed issues including torture, surveillance, and the recurring role of the CIA in prompting international conflict.
This commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published on April 22, 2013.
“Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive.”—C.S. Lewis
Caught up in the televised drama of a military-style manhunt for the suspects in the Boston Marathon explosion, most Americans fail to realize that the world around them has been suddenly and jarringly shifted off its axis, that axis being the U.S. Constitution.
For those like myself who have studied emerging police states, the sight of a city placed under martial law—its citizens under house arrest (officials used the Orwellian phrase “shelter in place” to describe the mandatory lockdown), military-style helicopters equipped with thermal imaging devices buzzing the skies, tanks and armored vehicles on the streets, and snipers perched on rooftops, while thousands of black-garbed police swarmed the streets and SWAT teams carried out house-to-house searches in search of two young and seemingly unlikely bombing suspects—leaves us in a growing state of unease.
Mind you, these are no longer warning signs of a steadily encroaching police state. The police state has arrived.
Equally unnerving is the ease with which Americans welcomed the city-wide lockdown, the routine invasion of their privacy, and the dismantling of every constitutional right intended to serve as a bulwark against government abuses. Watching it unfold, I couldn’t help but think of Nazi Field Marshal Hermann Goering’s remarks during the Nuremberg trials. As Goering noted:
It is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.
As the events in Boston have made clear, it does indeed work the same in every country. The same propaganda and police state tactics that worked for Adolf Hitler 80 years ago continue to be employed with great success in a post-9/11 America.
Whatever the threat to so-called security—whether it’s rumored weapons of mass destruction, school shootings, or alleged acts of terrorism—it doesn’t take much for the American people to march in lockstep with the government’s dictates, even if it means submitting to martial law, having their homes searched, and being stripped of one’s constitutional rights at a moment’s notice.
As journalist Andrew O’Hehir observes in Salon:
In America after 9/11, we made a deal with the devil, or with Dick Cheney, which is much the same thing. We agreed to give up most of our enumerated rights and civil liberties (except for the sacrosanct Second Amendment, of course) in exchange for a lot of hyper-patriotic tough talk, the promise of “security” and the freedom to go on sitting on our asses and consuming whatever the hell we wanted to. Don’t look the other way and tell me that you signed a petition or voted for John Kerry or whatever. The fact is that whatever dignified private opinions you and I may hold, we did not do enough to stop it, and our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.
Particularly disheartening is the fact that Americans, consumed with the need for vengeance, seem even less concerned about protecting the rights of others, especially if those “others” happen to be of a different skin color or nationality. The public response to the manhunt, capture and subsequent treatment of brothers Tamerlan and Dzhokhar Tsarnaev is merely the latest example of America’s xenophobic mindset, which was also a driving force behind the roundup and detention of hundreds of Arab, South Asian and Muslim men following 9/11, internment camps that housed more than 18,000 people of Japanese ancestry during World War II, and the arrest and deportation of thousands of “radical” noncitizens during America’s first Red Scare.
Moreover, there has been little outcry over the Obama administration’s decision to deny 19-year-old U.S. citizen Dzhokhar Tsarnaev his due process rights and treat him as an enemy combatant, first off by interrogating him without reading him his Miranda rights (“You have the right to remain silent. Anything you say can and will be used against you in a court of law…”).
Presently, under the public safety exception to the Miranda rule, if law enforcement agents believe a suspect has information that might reduce a substantial threat, they can wait to give the Miranda warning. For years now, however, the Obama administration has been lobbying to see this exception extended to all cases involving so-called terror suspects, including American citizens. Tsarnaev’s case may prove to be the game-changer. Yet as journalist Emily Bazelon points out for Slate: “Why should I care that no one’s reading Dzhokhar Tsarnaev his Miranda rights? When the law gets bent out of shape for him, it’s easier to bend out of shape for the rest of us.”
The U.S. Supreme Court rightly recognized in its 1966 ruling in Miranda v. Arizona that police officers must advise a suspect of his/her civil rights once the suspect has been taken into custody, because the police can and often do take advantage of the fact that most Americans don’t know their rights. There have been few exceptions to the Miranda rule over the last 40 years or so, and with good reason. However, if the Obama administration is allowed to scale back the Miranda rule, especially as it applies to U.S. citizens, it would be yet another dangerous expansion of government power at the expense of citizens’ civil rights.
This continual undermining of the rules that protect civil liberties, not to mention the incessant rush to judgment by politicians, members of the media and the public, will inevitably have far-reaching consequences on a populace that not only remains ignorant about their rights but is inclined to sacrifice their liberties for phantom promises of safety.
Moments after taking Tsarnaev into custody, the Boston Police Dept. tweeted “CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won.” Yet with Tsarnaev and his brother having been charged, tried and convicted by the government, the media and the police—all without ever having stepped foot inside a courtroom—it remains to be seen whether justice has indeed won.
The lesson for the rest of us is this: once a free people allows the government to make inroads into their freedoms or uses those same freedoms as bargaining chips for security, it quickly becomes a slippery slope to outright tyranny. And it doesn’t really matter whether it’s a Democrat or a Republican at the helm, because the bureaucratic mindset on both sides of the aisle now seems to embody the same philosophy of authoritarian government. Increasingly, those on the left who once hailed Barack Obama as the antidote for restoring the numerous civil liberties that were lost or undermined as a result of Bush-era policies are finding themselves forced to acknowledge that threats to civil liberties are worse under Obama.
Clearly, the outlook for civil liberties under Obama grows bleaker by the day, from his embrace of indefinite detention for U.S. citizens and drone kill lists to warrantless surveillance of phone, email and internet communications, and prosecutions of government whistleblowers. Most recently, capitalizing on the nation’s heightened emotions, confusion and fear, government officials used the Boston Marathon tragedy as a means of extending the reach of the police state, starting with the House of Representatives’ overwhelming passage of the controversial Cyber Intelligence Sharing and Protection Act (CISPA), which opens the door to greater internet surveillance by the government.
These troubling developments are the outward manifestations of an inner, philosophical shift underway in how the government views not only the Constitution and the Bill of Rights, but “we the people,” as well. What this reflects is a move away from a government bound by the rule of law to one that seeks total control through the imposition of its own self-serving laws on the populace.
All the while, the American people remain largely oblivious to the looming threats to their freedoms, eager to be persuaded that the government can solve the problems that plague us—whether it be terrorism, an economic depression, an environmental disaster or even a flu epidemic. Yet having bought into the false notion that the government can ensure not only our safety but our happiness and will take care of us from cradle to grave—that is, from daycare centers to nursing homes, we have in actuality allowed ourselves to be bridled and turned into slaves at the bidding of a government that cares little for our freedoms or our happiness.
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:
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.
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.