Category Archives: The Surveillance State

A Small Win For Privacy

Amazon user data request dropped

Federal prosecutors have withdrawn a subpoena seeking the identities of thousands of people who bought used books through online retailer Amazon.com Inc., newly unsealed court records show.

The withdrawal came after a judge ruled that the customers had a 1st Amendment right to keep their reading habits from the government.

“The [subpoena’s] chilling effect on expressive e-commerce would frost keyboards across America,” U.S. Magistrate Judge Stephen Crocker wrote.

“The subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their knowledge or permission,” Crocker wrote. “It is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else.”

In the days of warrant-less wiretaps, and PATRIOT act concerns that the feds may be snooping on your public library records, it’s nice to see that someone is still willing to step up and protect the rights of individuals.

It’s a small step, but at least it’s a step in the right direction.

Law Enforcement Using Cell Phone Location Technology

Yesterday, the Washington Post reported on an alarming increase in the use of cell phone tracking technology by federal law enforcement:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

Such requests run counter to the Justice Department’s internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas. The requests and orders are sealed at the government’s request, so it is difficult to know how often the orders are issued or denied.

But some of those requests have become public, and they show that law enforcement agents are relying on a standard far below probable cause to justify their access to technology that essentially acts as a personal GPS tracking device:

In a stinging opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration agent for data that would identify a drug trafficker’s phone location by using the carrier’s E911 tracking capability. E911 tracking systems read signals sent to satellites from a phone’s Global Positioning System (GPS) chip or triangulated radio signals sent from phones to cell towers. Magistrate Judge Brian L. Owsley, of the Corpus Christi division of the Southern District of Texas, said the agent’s affidavit failed to focus on “specifics necessary to establish probable cause, such as relevant dates, names and places.”

Owsley decided to publish his opinion, which explained that the agent failed to provide “sufficient specific information to support the assertion” that the phone was being used in “criminal” activity. Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so. The agent stated that the DEA had ” ‘identified’ or ‘determined’ certain matters,” Owsley wrote, but “these identifications, determinations or revelations are not facts, but simply conclusions by the agency.”

Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers. The orders are typically issued by magistrate judges in U.S. district courts, who often handle applications for search warrants.

In one case last month in a southwestern state, an FBI agent obtained precise location data with a court order based on the lower standard, citing “specific and articulable facts” showing reasonable grounds to believe the data are “relevant to an ongoing criminal investigation,” said Al Gidari, a partner at Perkins Coie in Seattle, who reviews data requests for carriers.

Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is “consistent with the probable cause standard” of Rule 41 of the Federal Rules of Criminal Procedure. The judge spoke on condition of anonymity because of the sensitivity of the issue.

While some judges appear to be holding law enforcement back on this issue, the majority are rubber-stamping the warrant requests, and law enforcement is responding by relying upon the technology in an increasing number of cases.

That cell phone in your pocket may not be watching you, but it can tell Big Brother where you are.

Intelligence Official: Time To Redefine Privacy

The chief Deputy Director of National Intelligence says that Americans need to redefine privacy and must learn to trust the government with their private information:

WASHINGTON (AP) — As Congress debates new rules for government eavesdropping, a top intelligence official says it is time that people in the United States change their definition of privacy.

Privacy no longer can mean anonymity, says Donald Kerr, the principal deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguard people’s private communications and financial information. Companies dealing with private and sensitive information need to abide by GDPR and DPO privacy laws in order to be considered a safe network (click for more information).

In justifying this new definition of privacy, Kerr cites the growth of the Internet, and especially of social networking sites like Facebook and MySpace:

Kerr said at an October intelligence conference in San Antonio, Texas, that he finds it odd that some would be concerned that the government may be listening in when people are “perfectly willing for a green-card holder at an [Internet service provider] who may or may have not have been an illegal entrant to the United States to handle their data.”

He noted that government employees face up to five years in prison and $100,000 in fines if convicted of misusing private information.

Millions of people in this country — particularly young people — already have surrendered anonymity to social networking sites such as MySpace and Facebook, and to Internet commerce. These sites reveal to the public, government and corporations what was once closely guarded information, like personal statistics and credit card numbers.

“Those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it’s not for us to inflict one size fits all,” said Kerr, 68. “Protecting anonymity isn’t a fight that can be won. Anyone that’s typed in their name on Google understands that.”

Kerr’s analogy is flawed, of course, because of the fundamental difference between government monitoring and most private transactions on the Internet. For the most part, the information that’s available about individuals online is there for one of two reasons; either it’s something that’s publicly available (like a newspaper article), or it’s information that people have voluntarily given up in exchange for a service. If I setup a Facebook page that others can access it’s not the same as the government being able to monitor my private conversations and transactions.

And that, it seems, may be exactly what’s going on:

The central witness in a California lawsuit against AT&T says the government is vacuuming up billions of e-mails and phone calls as they pass through an AT&T switching station in San Francisco, California.

Mark Klein, a retired AT&T technician, helped connect a device in 2003 that he says diverted and copied onto a government supercomputer every call, e-mail, and Internet site access on AT&T lines.

The Electronic Frontier Foundation, which filed the class-action suit, claims there are as many as 20 such sites in the U.S.

That’s fundamentally different from what Kerr is talking about. And, as a lawyer for the EFF notes, his arguments against anonymity ignore the importance that it has played in American history:

“Anonymity has been important since the Federalist Papers were written under pseudonyms,” Opsahl said. “The government has tremendous power: the police power, the ability to arrest, to detain, to take away rights. Tying together that someone has spoken out on an issue with their identity is a far more dangerous thing if it is the government that is trying to tie it together.”

Publius would not have survived under the regime that that Kerr is proposing and that alone should be reasons to second-guess him.

Clinton and Executive Power

Hillary Clinton said she give up some expanded executive powers:

If elected president in 2008, Democrat Hillary Rodham Clinton would consider giving up some of the executive powers President Bush and Vice President Cheney have assumed since taking office.

In an interview published Tuesday in Guardian America, a Web site run by the London-based Guardian newspaper, Clinton denounced the Bush Administration’s push to concentrate more power in the White House as a “power grab” not supported by the Constitution.

Asked if she would consider giving up some of those powers if she were president, Clinton replied, “Oh, absolutely … I mean, that has to be part of the review that I undertake when I get to the White House, and I intend to do that.”
[…]
“There were a lot of actions which they took that were clearly beyond any power the Congress would have granted, or that in my view was inherent in the Constitution,” Clinton said. “There were other actions they’ve taken which could have obtained Congressional authorization but they deliberately chose not to pursue it as a matter of principle.”

My initial thoughts when I first saw this article were…since when did Hillary Clinton start caring about Constitutional limitations on government? The answer to that is….she doesn’t. And, if Congress approves some action that is constitutionally questionable, like sneak-and-peek or the NSA wiretapping program, does that justify it? The answer to that is…no. There is a process to amend the Constitution. Legislative action without the required Constitutional changes should be scrapped by the Supreme Court, especially one that claims to follow an “originalist” philosophy. But when a court uses the judiciary without textural support to justify the position of the executive branch, which is just as much a case of judicial activism as any liberal judge undercutting those “family values” that I can’t seem to find anywhere in the Constitution, conservatives seem to be perfectly fine with that.

I’ve already posted this article, but Radley Balko makes the case that Hillary Clinton will continue the same course that Bush has taken with regard to expanded executive powers, and argues that she will continue to seek expansion

:What about secrecy and executive power? It’s difficult to see Hillary Clinton voluntarily handing back all of those extra-constitutional executive powers claimed by President Bush. Her husband’s administration, for example, copiously invoked dubious “executive privilege” claims to keep from complying with congressional subpoenas and open records requests—claims the left now (correctly, in my view) regularly criticizes the Bush administration for invoking.

Hillary Clinton herself went to court to keep meetings of her Health Care Task Force secret from the public, something conservatives were quick to point out when leftists criticize Vice President Cheney’s similar efforts to keep meetings of his Energy Task Force secret.

“I’m a strong believer in executive authority,” Clinton said in a 2003 speech, recently quoted in The New Republic. “I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority.”

That jibes with a February 2007 New York Times article on Clinton explaining her refusal to back down from her vote for the Iraq war: “Mrs. Clinton’s belief in executive power and authority is another factor weighing against an apology, advisers said… she believes that a president usually deserves the benefit of the doubt from Congress on matters of executive authority.”

Such is why President Bush has recently had some nice things to say about Hillary Clinton, leading some to speculate that Bush sees her as the Eisenhower to his Truman—a candidate from the opposing party who criticizes his foreign policy during the campaign, but will likely pursue a very similar policy should she be elected.

Clinton is just more of the same…you’d think hawkish conservatives would love her as much as they love Rudy Giuliani.

Part of PATRIOT Act ruled unconstitutional

Another federal judge has ruled that sections of the so-called USA PATRIOT Act are unconstitutional:

Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The Patriot Act greatly expanded the authority of law enforcers to investigate suspected acts of terrorism, both domestically and abroad.

The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You cannot simply throw the Constitution out the window. Individuals still have rights and the government still has limits.

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