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Requiem for the Obama Administration, Trump Edition
The problems many are now predicting under the Trump administration did not start on November 8. The near-unrestrained executive power claimed by the Obama administration will be transferred to the president-elect. Here’s what that means.
Torture
Obama did not prosecute, fire or discipline anyone for torturing people on behalf of the people of the United States. He did not hold any truth commissions, and ensured almost all of the government documents on the torture program remain classified. He did not prosecute the CIA official who willfully destroyed video tapes of the torture scenes. He has not specifically disavowed secret prisons and renditions, just suspended their use.
As with the continued hunting down of Nazis some 70 years after their evil acts, the message that individual responsibility exists must stalk those who would do evil on behalf of a government. “I was only following orders” is not a defense against inhuman acts. The purpose of tracking down the guilty is less to punish and more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state.
Because of these failures President Trump can, as he has proposed, restart the torture program at any time. Some claim the CIA won’t participate. Some always will of course, and if not at CIA, then a contractor will be found. And if another terror attack or two take place, then people at CIA and elsewhere in government will be lining up to conduct the torture as they did last time. They know they will never be held accountable. Indeed, Trump is apparently considering the CIA official who destroyed the torture tapes, Jose Rodriguez, to head up the agency.
Assassinations
Obama legalized, formalized, and normalized drone assassinations on a global scale, including the killing of American citizens without due process in direct violation of the Fifth Amendment, on the president’s order alone. The only real restraint he codified is self-restraint. When you leave a door open, you never know who will walk in.
Because of this President Trump can do the same thing. Trump is unlikely to blow up the entire world with the nuclear codes, but please do not act surprised when his choice of American citizen targets may not match up with yours.
Guantanamo
Obama never closed Guantanamo as he promised. He could have, simply by depopulating it regardless of what Congress might have said. In 2014 when Obama needed to trade five Taliban from Gitmo for U.S. Army soldier Bowe Bergdahl in Afghanistan, Obama simply ordered those Taliban freed. He could do the same with anyone else there. He could have applied the full pressure of the U.S. on various countries to accept freed prisoners. He could have ordered the show trials to be conclude.
Obama did not do these things. He instead normalized indefinite detention as a policy of the United States, and alongside that, as with torture and drone assassinations, the use of secret, convoluted legal opinions to justify such executive powers.
So if President Trump choses to start refilling the cells at Guantanamo, and reminding the world of the lengths a frightened America is willing to go to imprison a single man, it should not be a surprise. And with the “legal” opinions, including ones still secret, behind such policies, stopping Trump will require years of counter-litigation never even begun under the Obama administration.
Espionage Act
Obama prosecuted more federal whistleblowers as spies under the Espionage Act than all previous U.S. presidents combined. He sent to jail people who exposed torture, and people who allegedly leaked information to journalists showing American complicity in dangerous acts abroad. He had Chelsea Manning prosecuted for exposing war crimes in Iraq. He used the Espionage Act to destroy the lives of others who under any definition except his own would be considered political heroes.
Obama and his Justice Department created the playbook for how to use the hereto obscure Espionage Act to do these things.
So if President Trump, perhaps with an attorney general Rudy Giuliani, uses that playbook to lock up whistleblowers, journalists, and people you might call dissidents and political prisoners, remember to again look the other way.
Freedom of Information Act (FOIA)
The Obama administration set a record for redacting government files or outright denying access to them in fiscal year 2014 – some 77% of FOIA requests were redacted or denied outright. More than any previous administration, Obama took longer to turn over files, said more often it couldn’t find documents and refused a record number of times to turn over newsworthy files quickly absent lawsuits brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.
Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time FOIA employees by nine percent. Despite the critical nature of the documents, the State Department was allowed to do its FOIA screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.
So don’t be surprised if the Trump administration does not end up as the most transparent one ever.
NSA
Obama never realistically reigned in the NSA after the Bush-era Patriot Act allowed the agency to turn its surveillance tools on the Homeland. Absent a few cosmetic changes, NSA continues to gather the full spectrum of Americans’ communications in violation of the Fourth Amendment, abetted by the secret FISA court and vaguely Constitutional tools such as National Security Letters and parallel reconstruction. Information lives forever, and the NSA is building bigger data warehouses to keep storing it.
President Trump will have that information about you at his disposal. And so all who bleated “they had nothing to hide and thus have nothing to fear” during the Obama (and Bush) administration, out of trust for a president or fear of terror, well, now you can join the rest of us who have been terrified for a very long time.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Police Want to 3D Print a Dead Man’s Fingers to Unlock His Phone
I’ll unpack the Constitutional issues in a bit, but first, the technology.
Michigan State University professor who holds six U.S. patents for fingerprint recognition technology was asked by police to help catch a murderer. The cops scans of the victim’s fingerprints and thought that unlocking his phone might provide clues as to who killed him.The professor converted the fingerprint scans and 3D printed versions of all 10 digits. He then coated them with a micro-layer of metallic particles to mimic skin’s conductivity. The final 3D-printed fingers aren’t finished, but they’ll be ready for police to try out soon.
The potential Constitutional issues here are an amazing challenge to the Fourth Amendment’s assurances against unwarranted search, and the Fifth’s protections against self-incrimination. They don’t apply to this current case, as the prints in question comes from a dead man, but…In in 2014 a judge controversially ruled that (living) suspects can be required to unlock a phone with a fingerprint. While the Fifth Amendment protects the right to avoid self-incrimination and makes it illegal to force someone to give out a passcode, biometric indicators like fingerprints are not covered by the Fifth Amendment, according to the ruling. So, if your phone or other device is protected with a fingerprint, the current law says cops can compel you to open it. If the phone is protected by a PIN number, the cops cannot compel you to open it.
The judge’s logic is interesting. He wrote giving police a fingerprint is akin to providing a DNA or handwriting sample, or presumably an iris scan or facial recognition, which the law permits. A pass code, though, requires the defendant to divulge knowledge, which the law protects against.
It is not hard to imagine a future court ruling that all a bunch of nonsense and (hopefully) declaring the police cannot compel you to unlock your phone for them. But of course the cops can fingerprint you, and can have those prints 3D reproduced, and might be able to open your phone that way. So is or is that not Constitutional?
And cool: if the police already have your iris scan, facial data or prints on file, they don’t even need to bother to talk to you about any of this at some point.
In the age of Snowden’s revelations, big data and all sorts of electronic spy gear we have yet to learn about or invent, has technology finally outrun the otherwise pretty good record of the Bill of Rights for keeping up with the times?
BONUS: Protect your phone with a strong PIN at the minimum.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
How Soon Before Armed Drones Are Overhead in America? Time Now.
Protocols exist allowing the president to select American citizens, without a whit of due process, for drone killing.
Only overseas, he says, but you can almost see the fingers crossed behind his back. Wouldn’t an awful lot of well-meaning Americans have supported an aerial drone killing in San Bernardino, or at the Pulse club in Orlando? Didn’t many support using a robot to blow up a suspect in Dallas?How soon before armed drones are over our heads?
Time Now.
North Dakota just legalized its police departments to equip drones with Tasers, tear gas and rubber bullets. The state legislature will push for the removal of the non-lethal force provision in 2017.House Bill 1328 went into effect August 1. The original piece of legislation sought to ensure police obtained a search warrant to use a drone to gather criminal evidence. However, when a lobbyist with police ties was allowed to amend the bill, it was rewritten to specify that drones could carry anything except (’til next year) weapons capable of lethal force.
Of course plenty of people have died at the hands of police using so-called non-lethal weapons, Tasers in particular. But even if that is not a concern, just wait until 2017, when the police will be able to fly weaponized drones.
Over America. Or is it: Over, America?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why Snowden the Movie Matters
I’ve reviewed Oliver Stone’s movie Snowden elsewhere, and it’s well worth seeing just as a movie. But of course the issues brought up by Snowden the man, and Snowden the movie, are more complex than fit into two hours.
I had this hit home in a recent discussion with a friend who keeps insisting he has nothing to hide in his emails, phone calls, social media, etc., so why should he care if the NSA looks at all that?Friend, here’s why:
NSA surveillance is legal.True, as was slavery in the U.S., the Holocaust under Nazi Germany, Apartheid in South Africa and so forth. Laws serve higher purposes. They can be manipulated for evil. That’s why we need checks and balances to protect us.
Well, there are checks and balances in the system to protect us.The king of all checks and balances in this, the Fourth Amendment, has been treated by the government like a used Kleenex.
As for the Foreign Intelligence and Surveillance Court (FISA), set up to review government requests for wiretapping, it approved all 1,789 requests submitted to it in 2012. The FBI made 15,229 National Security Letter requests in 2012 on Americans. None of those even require FISA rubber-stamping. And here’s DOJ trying to keep classified a court ruling that says it might have acted unconstitutionally.
The first FISA ruling ever released in full came from Edward Snowden. Before that, no one outside a small circle inside the government had ever seen one.
And you know who represents the “suspect” (i.e., you) in front of the FISA court? No one. You don’t even know they’re reviewing you.
If all the NSA’s activities are legal, why not allow them to be tested openly and unambiguously in public, in front of the Supreme Court. After all, if you’ve done nothing wrong there is nothing to hide. Unfortunately, when Amnesty International tried to bring such a case before the Court, the case was denied because Amnesty could not prove it was subject to monitoring– that was a secret!– and thus was denied standing to even bring the suit.
Unfettered surveillance violates both the Fourth Amendment protections against search, and the First Amendment protections on the right to peaceably assemble, online in this instance.
Anyway, whatever, FISA. I’m not doing anything wrong, so why should I care? If you’re doing nothing wrong, then you’ve got nothing to hide!
The definition of “wrong” can change very quickly, especially if you have no way to defend yourself, or even know you’re under suspicion. Are you really, really ready to risk everything on what is right and wrong today staying that way forever? Seems like a fool’s bet, given America’s witch hunts in the 1950s for communists, and Islamophobia today. Things do change.
Well, I trust Obama on this.Good for you. There’ll be a new president soon. You also trust him or her? How about the one after that, and the one after that? Data collected is forever. Trusting anyone with such power is foolish.
FYI, whether you trust Obama, Trump, Hillary or the next presidents, do remember your personal data is in the hands of the same people that run the TSA, the IRS and the DMV. Do you trust all of them all the time to never make mistakes or act on personal grudges or political biases? Do you believe none of them would ever sell your data for personal profit ever? That they have your information so well protected hackers will never get to it and dump it out onto the Internet?
How about other governments? The NSA is already sharing your data with, at minimum, British and Israeli intelligence. Those are foreign governments that your American government is informing on you to.
Distasteful as this all is, it is necessary to keep us safe. It’s for our own good.The United States, upholding to our beautiful Bill of Rights, has survived (albeit on a sometimes bumpy road) two world wars, the Cold War and innumerable challenges without a massive, all-inclusive destruction of our civil rights. Keep in mind that the Founders created the Bill of Rights, point-by-point, specifically to address the abuses of power (look up the never-heard-from-again Third Amendment) they experienced under an oppressive British government.
A bunch of angry jihadis, some real and many imagined, seems a poor reason to change that system. Prior to 9/11 we did not have a mass-scale terror act (by foreigners; American Citizen Timothy McVeigh pulled one off.) Since 9/11 we have not had a mass-scale terror attack. More than 15 years in, we must accept 9/11 was a one-off, an aberration, and cannot be a justification for everything the government wishes to do.
There is also the question of why, if the NSA is vacuuming up everything, and even sharing that collection abroad, this all needs to be kept secret from the American people. If it is for our own good, the government should be proud to tell us what they are doing for us, instead of being embarrassed when it leaks.
After all, if you’re not doing anything wrong then you’ve got nothing to hide, right?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Cleveland Police to RNC Protesters: Don’t Hide Your Faces (Facial Recognition)
Cleveland Police Chief Calvin Williams issued a warning to an undisclosed number of masked protesters outside the Republican National Convention: “If you are a member of a group that causes you to have to hide your face, then you probably need a different cause.”
Police claim they have received at least a dozen calls related to concerns about the small groups of black-clad “anarchists” with masks.So why is Chief Williams so concerned about the face masks? Too early for Halloween?
Nope, facial recognition.
Law enforcement aggressively employs facial recognition technology at events such as the Republican National Convention to identify “persons of interest” and to catalog new persons of interest. Masked faces don’t play as well with the technology (though newer tech can get around some limitations, and iris scan tech needs only to see your, well, eyes. More below.)With facial recognition, a computer digitizes an image of someone’s face in a way that makes fooling the system difficult, stuff like measuring the distance between eyes, the angle of one’s nose, ear lobe shape and other tough to alter things.
Like this:
Reports suggest in addition to public gatherings where people are enjoying their First Amendment rights to assemble and speak, airports scan passengers, hotels scan lobbies, stores scan aisles, casinos scan their gambling floors and many police street cameras are tied into the systems.A publicly-known example occurred after the Boston Marathon bombing of April 2013. The subsequent Boston Calling music fest was subject to heavy use facial recognition surveillance, one guesses in case there were more Tsarnaev brothers out there. Law enforcement in the UK used facial recognition technology to scan the faces of thousands of attendees at the Download music festival without their knowledge.
And, oh, yeah, those iris scanners.Iris scanners have quickly moved from the realm of science fiction into everyday public use by governments and private businesses.
Iris recognition is rarely impeded by contact lenses or eyeglasses, and can work with blind individuals as well. The scanners can catalog up to 50 people a minute without requiring the individuals to stop and stand in front of the scanners.
Information gathered from iris scanners or facial recognition in multiple locations can be sent to a central database that can be used to track an individual’s movement throughout the city, or to determine which individuals in the database associate together.
So hippie protesters, have a great time in Cleveland! Actually, the cops will know if you are having a good time, because they are watching.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Teen Sues U.S. Over Cavity Drug Search for Which She was Billed $575
Ashley Cervantes, a then 18-year-old American citizen, was stopped at the Mexico border and, for some unspecified reason, perhaps related to her being young and of Hispanic ethnicity, accused by Customs and Border Protection (CBP) of smuggling drugs.
What Drugs?A search of her person and belongings proved fruitless, which often is a strong indicator that there are no drugs. The process involved being locked into a detention room for several hours, handcuffed to a chair, while several dogs were brought in to sniff at her. A request to call her mother was denied.
But bullying is the best law enforcement tactic, so they gave her a body cavity search, which means a CBP agent put on some rubber gloves and shoved a finger up her vagina and butt. She was also made to squat pantless so female investigators could visually inspect her privates. Still no drugs.
So Customs and Border Protection took her to a local hospital against her will, in handcuffs. No warrant, no consent. Instead, a Customs and Border Protection agent signed a “Treatment Authorization Request” as she was considered an alleged “potential internal carrier of foreign substance.” That form requested an X-ray.
After the X-ray showed no drugs, doctors performed another vaginal and anal search. No drugs. She was finally released after seven hours of humiliation and given a bill for $575 for “medical treatment.”
What Rights?Cervantes now has a civil rights lawsuit pending against the government. “[I] had never before been to a gynecologist and, for the remainder of my life, will always remember that my first pelvic and rectal exams were done under the most inhumane circumstances imaginable to a U.S. citizen at a hospital on U.S. soil,” she charges.
What Border?
Begin at America’s borders. Most people believe they are in the United States as soon as they step off an international flight, or as long as they are waiting for their outbound flight, or as they enter a CBP office on the border, as with Cervantes in the case above, and are thus fully covered by the Bill of Rights.
Wrong. And the irony that a person can be separated from his Constitutional rights by a border marked by a pane of glass is not to be missed.
The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering or leaving the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
What Border, 2016 Edition?
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
What once were modest exceptions in Constitutional America morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can and conduct warrantless searches.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Hidden Mics as Part of Government Surveillance Program
In another example of multi-dimensional clash among the Fourth Amendment, privacy, technology and the surveillance state, hidden microphones that are part of a broad, public clandestine government surveillance program that has been operating around the San Francisco Bay Area have been exposed.
The FBI planted listening devices at bus stops and other public places trying to prove real estate investors in San Mateo and Alameda counties are guilty of bid rigging and fraud. FBI agents were previously caught hiding microphones inside light fixtures and at public spaces outside an Oakland Courthouse, between March 2010 and January 2011.The apparent goal of the feds was to catch the defendants in their impromptu conversations following court sessions.
At issue is the Fourth Amendment’s guarantee against unwarranted search, which includes electronic “search,” and the concept that one has no expectation of privacy in a public place. The legal argument is that by choosing voluntarily to enter a public space, such a courtroom or bus stop, one gives up one’s Fourth Amendment rights. In the government’s interpretation, their actions are roughly the equivalent of overhearing a conversation on street corner waiting for a light to change.The lawyer for one of the accused real estate investors will ask the judge to throw out the recordings. “Speaking in a public place does not mean that the individual has no reasonable expectation of privacy. Private communication in a public place qualifies as a protected ‘oral communication’ and therefore may not be intercepted without judicial authorization.”
In addition to the Constitutional issues in the real estate case, the broad use of public surveillance devices also touches on the question of other people who may be swept up alongside the original targets. For example, the FBI’s interpretation means if its microphones inadvertently pick up conversation relating to another alleged crime, they would be free to use that as evidence in court as well.The use of microphones, coupled with technologies such as voice recognition (to identify a person) and keyword recognition (to identify specific terms of interest electronically) means that what appears to be a one-dimensional listening device can actually function within a web of technology to enable broad-spectrum surveillance of masses of people in public spaces.
(The “Golden Nugget” slide above is provided by the NSA, courtesy of former employee Edward Snowden)
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Police State and License Plate Scanners
One of the latest tools for violating our privacy and creating the American police state are license plate scanners.
Watching You
This technology allows the police to cruise through a city at normal speed and photographically gather images of vehicle license plates, along with geolocation data. This is all stored, and can easily be used to create a record of everywhere your car has been. Coupled with cellphone and WiFi data being collected along with its own geodata, and tied to things like tracked credit card activity, emails and the now-ubiquitous public surveillance cameras, it is very, very easy for law enforcement to know where you are, where you have been and have a pretty good idea of what you were doing.
Run that same process for lots and lots of people, and you can also tell who spent time with who.
Vigilant Solutions
Expand that process nationwide and you truly have a police state.
How to do that? Contact a private company called Vigilant Solutions. They collect license plate scanning information from multiple police departments as well as their own network of private plate scanners and facial recognition/facial cataloging technology and then sell it in database form to law enforcement.
The Vigilant database is massive, with over 2.2 billion location data points, and it is growing by almost a million data points per day. The database means, for example, that the New York police can now monitor you and your car whether you live in New York, Miami, Chicago, Los Angeles, or elsewhere.
The database also boasts a full suite data analytics tools which allow police officers to track cars historically or in real time, conduct a virtual stakeout, figure out which cars are commonly seen in close proximity to each other, and predict likely locations to find a car.
Data, once collected, can exist forever. Whatever it is being used for now, it will also be available for other uses in the future, enhanced by new exploitive technology.
As Vigilant puts it on its website, “Data is cumbersome; intelligence is actionable.”
Let’s Google It
All that is quite dangerous enough. However, the latest wrinkle is that the police in at least one city are going as far as disguising their license plate scanning vehicle as an innocent Google Maps truck. You don’t even know your location information is being gathered this way.
Matt Blaze, a University of Pennsylvania computer and information science professor, noticed an SUV tucked away in the shadows of the Philadelphia Convention Center, bearing a logo for Google Maps. Blaze, based on his profession, also identified mounted on top of the vehicle two high-powered license plate reader cameras. To the average passerby, it might appear to be a Google street view vehicle.
After initially denying it, the Philly cops eventually admitted the van was their’s, but refused further comment.
“We can confirm that this is not a Google Maps car, and that we are currently looking into the matter,” a Google spokesperson said. She would not elaborate as to whether the company was concerned that law enforcement was using a vehicle with warrantless surveillance technology while pretending to be a Google vehicle.
It is impossible to escape this network of warrantless search and still live in society. Our cars, our phone, our credit cards and our very faces have been corrupted by a police state into tools of surveillance.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Twitter ‘Blocks’ Intel Agencies From Tweet-Mining Service
Or have they?Twitter claims it does not want intelligence agencies using a Tweet-mining service for surveillance purposes. The company recently restated its “longstanding” policy of preventing a company called Dataminr from selling information to intelligence agencies that want to monitor Tweets.
“Dataminr uses public Tweets to sell breaking news alerts to media organizations, corporations and government agencies,” a spokesman for Twitter said in a statement. “We have never authorized Dataminr or any third party to sell data to a government or intelligence agency for surveillance purposes. This is a longstanding policy, not a new development.”
There are multiple issues worth unpacking here.— The reality-to-b*llshit level on this is very high. Twitter sounds nicely righteous, but the whole affair is one FBI front company signing up with Dataminr away from being meaningless.
— In fact, Dataminr retains its contract with the Department of Homeland Security, which it classifies as something other than an intel agency.
— Can Twitter actually stop Dataminr from gathering information about Tweets? Not really, as Dataminr uses public Tweets to do its work. It seems Twitter just asked Dataminr nicely to stop. And how many other companies out there are doing the same thing?
— Small world: The CIA’s own non-profit investment arm, In-Q-Tel, is a Dataminr investor. And Twitter itself is an investor in Dataminr.
But questions about the actual impact of Twitter’s statements aside, the worst thing about all this is that Americans are now fully dependent on corporate good deeds for the protection of their privacy. Yes, yes, we all “choose” to use social media, as we choose to use smartphones and have bank accounts and fly to Chicago. But c’mon, absent moving off the grid next to the Unabomber’s old cabin, how realistic is it for surveillance zealots to keep hiding behind the choice argument?And for those familiar with the actual definition of fascism, collusion between the state and corporate interests, welcome to your latest piece of evidence. We have only has much privacy as Twitter and the government agree we may have.
Sample Dataminr screen:
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Tor Developer Created Malware for FBI to Hack Tor Users
Espionage works like this: identify a target who has the info you need. Determine what he wants to cooperate (usually money.) Be sure to appeal to his vanity and/or patriotism. Create a situation where he can never go back to his old life, and give him a path forward where it favors his ongoing cooperation in a new life. Recruit him, because you own him.
The FBI appears to have run a very successful, very classic, textbook recruitment on the guy above, Matt Edman, to use his insider-knowledge to defeat one of the best encryption/privacy software tools available. Aloha, privacy, and f*ck you, Fourth Amendment rights against unwarranted search and seizure.
Edman is a former Tor Project developer who created malware for the FBI that allows agents to unmask users of the anonymity software.
Tor is part of a software project that allows users to browse the web and send messages anonymously. In addition to interfacing with encryption, the basic way Tor works is by bouncing your info packets from server to server around the Internet, such that each server knows only a little bit about where the info originated. If you somehow break the chain, you can only trace it back so far, if at all. Tor uses various front ends, graphic user interfaces that make it very easy for non-tech people to use.Tor is used by (a small number of) bad guys, but it is also used by journalists to protect sources, democracy advocates in dangerous countries, and simply people choosing to exercise their rights to privacy because they are in fact entitled to do so and don’t need a reason to do so. Freedom and all that. It is up to me if I want to lock the door to my home and close the blinds, not anyone else.
Our boy Edman worked closely with the FBI to customize, configure, test, and deploy malware he called “Cornhusker” to collect identifying information on Tor users. The malware is also known as Torsploit. Cornhusker used a Flash application to deliver a user’s real Internet Protocol (IP) address to an FBI server outside the Tor network. Cornhusker was placed on three servers owned by a Nebraska man who ran multiple child pornography websites.
We all hate child pornographers and we all would like to see them crammed up Satan’s butthole to suffocate in a most terrible way. But at the same time, we should all hate the loss of our precious rights. Malware has a tendency to find its way into places it should not be, including into the hands of really bad dictators and crooks, and even if we fully trusted the FBI to only use its Tor-cracking tools for good, the danger is there.And of course we cannot trust the FBI to use its Tor-cracking tools only for good. If Tor can be taken away from a few bad actors, then it can be taken away from all of us. Our choice to browse the web privately and responsibly is stripped from us. Encryption and tools like Tor are like any tool, even guns, in that they can be used for good or for evil. You never want to throw the baby out with the bathwater, especially when fundamental Constitutional rights are at stake.
Rough and unpleasant as it is to accept, the broad, society-wide danger of the loss of those fundamental rights in the long run out-shadows the tragedy of child pornography.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Calling Bull on Obama’s Call for Law Enforcement Access to Encryption
As the government’s fight to eliminate encryption as we know it, and ensure themselves unfettered access to all of all Americans’ communications, spreads out of the most-mediagenic example with Apple, Barack Obama has weighed in, using some of the oldest and sleaziest scare tactics available.
Speaking to an audience of technology executives at the South by Southwest festival, Obama said America had “already accepted that law enforcement can rifle through your underwear” in searches for those suspected of preying on children, and he said there was no reason that a person’s digital information should be treated differently.
“If, technologically, it is possible to make an impenetrable device or system, where the encryption is so strong that there is no key, there is no door at all, then how do we apprehend the child pornographer?” Obama said. “How do we disrupt a terrorist plot?”
If the government has no way into a smartphone, he added, “then everyone is walking around with a Swiss bank account in your pocket… This notion that somehow our data is different and can be walled off from those other trade-offs we make, I believe, is incorrect.”
Obama has resorted to the low-level scare tactics, invoking a landscape where pedophiles and terrorist employ encryption to prey on our children, and blow up our homes. And the president insists we trust him on this, that should the government gain access to all of our communications via some encryption backdoor, the tool will only be used for hard-to-argue with good — specifically, child pornographers and terrorists.
Now do keep in mind that this is the same president who promised us soon after the Snowden revelations came out in 2013 that the feds were looking at “only metadata” and not reading Americans’ communications.
That said, maybe I am wrong to be so cynical. Maybe this time Obama is sincere in needing those encryption backdoors to protect us from the pedos and jihadis.
So, Barack, let’s put up or shut up.
You tell us exactly how many American communications your NSA, et al, have gathered in say the last five years. You then tell us how many of those communications had unbreakable encryption applied. Then tell us how many of those encrypted messages were directly connected to child porn or unambiguous terrorism cases. Then tell us exactly how many of those cases were left unprosecuted only because of some encrypted message.
And no cheating by falling back on the equally old scare tactic of “well, if we disrupt on case, it’s all worth it, I mean what if it was your child.” We are talking about abrogating the entire Fourth Amendment here. And as you say safety is worth sacrificing for, I say freedom is worth dying for.
You tell us all that, and let us — the people you are spying on — weigh out the risk-versus-gain, the so-called trade off between our freedom and our safety. And unless and until you’re ready to throw some real cards on the table, I call bullsh*t on your arguments. Sir.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
FBI and Access to NSA Data on Americans
Hear that hissing sound? That is the last gasps for air from the Bill of Rights. The Bill is one breath away from hell.
The FBI has quietly revised its rules for searching data involving Americans’ communications collected by the National Security Agency.The classified revisions were accepted by the secret U.S. FISA court that governs surveillance, under a set of powers colloquially known as Section 702. That is the portion of law that authorizes the NSA’s sweeping PRISM program, among other atrocities.
PRISM, and other surveillance programs, first came to mainstream public attention with the information leaked by NSA whistleblower Edward Snowden, preceeded by other NSA whistleblowers such as Thomas Drake and Bill Binney.
Since at least 2014 the FBI has been allowed direct access to the NSA’s massive collections of international emails, texts and phone calls – which often include Americans on one end of the conversation, and often “inadvertently” sweep up Americans’ domestic communications as well. FBI officials can search through the NSA data, using Americans’ identifying information, for “routine” queries unrelated to national security.
As of 2014, the FBI has not been required to make note of when it searched NSA-gathered metadata, which includes the “to” or “from” lines of an email. Nor does it record how many of its data searches involve Americans’ identifying details.
So, quick summary: secret surveillance programs enacted in secret ostensibly to protect America from terrorism threats are now turning over data on American citizens to the FBI, fully unrelated to issues of national security. The rules governing all this are secret, decided by a secret court.If that does not add up to a chilling definition of a police state that would give an old Stasi thug a hard-on, than I don’t know what is.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
San Bernardino Shooter’s Apple Password Changed While in Government Possession
They lie like a rug.
In an attempt to convince Americans that having encryption and password-beating backdoors installed on their electronics so the government can snoop, the FBI first claimed the evil ISIS terrorists who shot up San Bernardino found a way to “beat” all of the resources of the NSA and lock down their iPhone to prevent further plots from being discovered. Lives were at risk, so the Fourth Amendment be damned!
That wasn’t really true.It turns out, as the Justice Department acknowledged in its court filing, that the passcode of shooter Syed Farook’s iCloud account had been reset by the San Bernardino County Department of Public Health, “in an attempt to gain access to some information in the hours after the attack… but that had the effect of eliminating the possibility of an auto-backup.” A federal official familiar with the investigation confirmed that investigators were indeed in possession of the phone when the reset occurred.
So, OK, it wasn’t the darn terrorists who did it, it was the dumb hicks at the San Bernardino County Department of Public Health. Well, nonetheless, it wasn’t the FBI’s fault, so the FBI should be given the hacking tools needed to access all iPhone everywhere forever, or, maybe, something might happen again someday somewhere. At least with things in the FBI’s hands, such dumb mistakes wouldn’t happen.
Only that wasn’t really true either.It turns out it was in fact the best of the best, FBI investigators seeking to recover data from the iPhone, who demanded a technician in the County Department of Public Health to reset the phone’s iCloud password. “The county and the FBI were working together cooperatively to obtain data, and at the point when it became clear the only way to accomplish the task at hand was to reset the iCloud password, the FBI asked the county to do so, and the county complied,” a spokesman for San Bernardino County said in an email. Except that wasn’t true or accurate and they screwed things up further by trying something dumb.
So here is what is true.Apple could have recovered information from the phone had the Apple ID passcode not been changed under orders from the FBI, Apple said. If the phone was taken to a location where it recognized the Wi-Fi network, such as the San Bernardino shooters’ home, it could have easily been backed up to the cloud. The FBI then lied about whose incompetence lead to the mistake.
In other words, while the FBI is demanding massive changes in how Apple protects your privacy, none of those change would even be necessary if anyone on the government side understood how iCloud works. And these guys want us to believe we can trust them with our data, and indeed, our freedom.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Judge Orders Apple to Help FBI Hack San Bernardino Shooter’s Phone
A magistrate judge in California on Tuesday ordered Apple to help the FBI retrieve encrypted data on an iPhone used by one of the San Bernardino killers. Investigators have so far been unable to gain access to the data on killer Syed Rizwan Farook’s phone, which could contain communications between him and his wife and co-conspirator, Tashfeen Malik, and potentially others, prior to the December 2 shooting rampage that killed 14 people.“Prosecutors said they needed Apple’s help accessing the phone’s data to find out who the shooters were communicating with and who may have helped plan and carry out the massacre, as well as where they traveled prior to the incident,” NBC News reports. “The judge ruled Tuesday that Apple had to provide ‘reasonable technical assistance’ to the government in recovering data from the iPhone 5c, including bypassing the auto-erase function and allowing investigators to submit an unlimited number of passwords in their attempts to unlock the phone.”
The court filing by the U.S. Attorney’s Office in Los Angeles said “Apple has the exclusive technical means which would assist the government in completing its search, but has declined to provide that assistance voluntarily.” Apple has five days to respond to the ruling.
Can the Feds Break Into the iPhone?
Some interesting issues afoot here. First, it appears the FBI cannot figure out a way to bypass Apple’s security feature, the one that bricks the phone after a certain number of unsuccessful login attempts. If Apple modified the phone so an unlimited number of attempts can be made, then the Feds would simply brute force the password, trying potentially millions of combinations.
Or is it?America’s intelligence agencies have so far been unsuccessful in persuading manufacturers and/or Congress to create and pass on to them backdoors around security and encryption. The FBI may indeed know how to get into the iPhone, but wants to make this a public example case — who can complain about learning more about real terrorists (no ambiguity issues), and of course the phone’s owners are dead, and so cannot claim their Fourth Amendment rights against search and seizure/privacy are being violated.
Also of interest would be an Apple claim that while they will cooperate, it is technically impossible to comply with the request, i.e., the phone simply cannot be modified as the FBI wishes. Could a court require Apple to turn over all of their code and engineering documents so that the NSA could have a shot at what Apple said it could not do on its own?
Equally interesting would be even if Apple can comply this time, would Apple run into future legal issues if they created a next generation phone that truly could not be modified no matter what, making it fully unhackable, even by their own engineers?
Either way, the suit against Apple sets a precedent, likely making it easier for the Feds to compel cooperation from tech companies in more legally hazy cases in the future.
Apple RespondsApple has vowed to aggressively fight the federal order to unlock the iPhone. CEO Tim Cook published a public response that said “We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”
So the good (?) news is in 2016 we are now depending on a private company to protect our privacy against the wishes of our own government.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
It is Legal for Terrorists to Buy Guns in America
Serial idiot Lindsey Graham, among too many others, stated that if only more people in Paris had been armed, the tragedy would have been lessened.
He echoed a popular right-wing meme in America, that “all it takes is a good guy with a gun to defeat a bad guy with a gun,” and that therefore any form of gun control in these United States would render us more vulnerable to attack.Such statements ignore multiple realities, one of which is that a bunch of would-be vigilantes would go to nightclubs and restaurants always armed, and that their blasting away inside a dark, crowded place in the midst of a panic would not kill more innocent people than the terrorists. Many people, for example, dramatically overestimate their own skills, never mind the accuracy of a handgun at distances of more than a few yards. Add in accidental shootings, deadly overreactions to things that are not threats, amateurs unsure who the bad guys are killing each other, stray rounds and that fact that many people in nightclubs and restaurants have had a drink or two, and you have a recipe for even more danger, not less.
But before we even worry about that, let’s enjoy the hypocrisy of this: it is perfectly legal in the United States for person on the FBI terrorist watch list to purchase guns and explosives, and many of them do.Who in America other than terrorists cannot legally buy guns. That list includes felons, fugitives, drug addicts and domestic abusers. Fair enough.
But not terrorists (unless they are also felons, fugitives, drug addicts or domestic abusers.) A report from the Government Accountability Office hilighted by the Washington Post says at least 2,043 known and suspected terrorists in the United States legally purchased firearms between 2004 and 2014.
“Membership in a terrorist organization does not prohibit a person from possessing firearms or explosives under current federal law,” the Government Accountability Office concluded. This includes persons on the FBI’s consolidated terrorist watchlist. Note that records for 2011 and 2012 are incomplete “because of a programming error the FBI subsequently fixed,” according to the GAO. So no one really knows how many terror suspects legally bought guns over the last 11 years.
A bipartisan bill offered this year (the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015”) is strongly opposed by the National Rifle Association (NRA). The NRA states the bill is “aimed primarily at law-abiding American gun owners,” and that the bill was “sponsored by gun control extremists.”Yes, yes, there are ways to purchase guns illegally on the street, and legally at gun shows, that bypass background checks and any other controls, so any would-be terrorists can still pick up some semi-automatic iron as needed.
At the same time, however, that our First, Fourth, and Fifth Amendment rights are being stripped away in the name of freedom and security, perhaps it is worth also taking another look at what might be done with the Second Amendment at the same time.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
NYPD Officer Convicted of Lying About Photographer’s Arrest
So this tells you about what you need to know about the cops’ respect for the First Amendment and the public’s right to know, as well as their contempt for the judicial system when caught in a lie.
A New York police officer who arrested a journalist/photographer on assignment for The New York Times in 2012 was convicted, albeit three years after the fact, in what was a simple, straightforward case, of falsifying a record to justify the unlawful arrest.
The officer, Michael Ackermann, 32, in the center of the photo above, was found guilty of a single felony count of offering a false instrument for filing. Officer Ackermann had claimed the photographer, Robert Stolarik, interfered with the arrest of a suspect by repeatedly discharging his camera’s flash in his face.
A subsequent “investigation” found that Stolarik did not own a flash or have one on his camera at the time. One does wonder how long such an investigation might have taken, considering it should have taken about 10 seconds after the arrest. Got a flash, sir? No? Ok, thanks, you are free to go.
“I think it’s important; it’s rare that people are held accountable for their actions,” the journalist said. “In this case, he lied, and he lied to protect himself, and it turned on him.”
Officer Ackermann testified during the trial that he had made an “honest mistake” when he claimed Stolarik’s camera partially blinded him as he helped fellow officers make an arrest. He said he had mistaken ambient light at the scene for a camera flash.Wait, could we stop right there for a moment? Who has ever had a flash photo taken of themselves? You know, like when you see spots in front of your eyes for a few moments? Is there anyone other than this cop who can say with a straight face that it is possible to mistake a flash for no flash? In the dark, for God’s sake?
The prosecutor rejected Officer Ackermann’s explanation and contended that his actions had interfered with the freedom of the press and had subjected Stolarik to unlawful search and seizure, violating his First and Fourth Amendment rights.
Stolarik was taking pictures for a story about the NYPD’s controversial stop-and-frisk tactics, themselves considered by many to be a violation of the Fourth Amendment, when he saw officers arresting a young black woman. He was thrown to the ground and arrested by Officer Ackermann, charged with obstructing government administration and, of course, resisting arrest. The charges were quickly dropped.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Snowden: NSA, GCHQ Using Your Phone to Spy on Others (and You)
You are a tool of the state, according to NSA whistleblower Edward Snowden.
The NSA in the U.S., and its equivalent in the UK, GCHQ, are taking control of your phone not just to spy on you as needed, but also to use your device as a way to spy on others around you. You are a walking microphone, camera and GPS for spies.Snowden, in a BBC interview, explained that for the most part intelligence agencies are not really looking to monitor your private phone communications per se. They are actually taking over full control of the phone to take photos or record ongoing conversations within earshot.
According to Snowden, the UK’s spy agency, the Government Communications Headquarters, uses NSA technology to develop software tools to control almost anyone’s smartphone. He notes that all it takes is sending an encrypted text message to get into virtually any smartphone. Moreover, the message will not be seen by the user, making it almost impossible to stop the attack.
GCHQ calls these smartphone hacking tools the “Smurf Suite.” The suite includes:“Dreamy Smurf” is the power management tool that turns your phone on and off with you knowing.
“Nosey Smurf” is the hot mic tool. “For example,” Snowden said, “if the phone is in your pocket, NSA/GCHQ can turn the microphone on and listen to everything that’s going on around you, even if your phone is switched off because they’ve got the other tools for turning it on.
“Tracker Smurf” is a geolocation tool which allows spies to follow you with a greater precision than you would get from the typical triangulation of cellphone towers.
“Paranoid Smurf” is a defensive mechanism designed to make the other tools installed on the phone undetectable.
Snowden said the NSA has spent close to $1 billion to develop these smartphone hacking programs.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A Day in America
The Pope and the United Nations General Assembly were in New York on Friday.The entire metro area was thus designated by the Department of Homeland Security a “National Special Security Event (NSSE),” which offers law enforcement all sorts of semi-unConstitutional powers, for freedom.
Under an NSSE, the local authorities give up their lawful jurisdiction, as an NSSE puts the United States Secret Service in charge of event security, the Federal Bureau of Investigation in charge of intelligence, counter terrorism, hostage rescue and investigation of incidents of terrorism or other major criminal activities associated with the NSSE, and the Federal Emergency Management Agency in charge of recovery management in the aftermath of terrorist incident.
In other words, the Feds control your world. The practical result is a city put on lockdown, with streets closed and massive police presence.
Apparently some motorcade or another was scheduled to pass through my boring, residential neighborhood, and there were cops everywhere. Here’s what a day in America now sounds like:
COP: (semi-blocking sidewalk) Where you headed, sir?
ME: To the bus. May I go?
COP: Just wondering where you’re headed.
ME: To the bus. Am I free to leave?
COP: Do you have ID with you, sir?
ME: Yes.
(Silence. In New York, the police can only demand ID with probable cause, though they can ask for it anytime. I’m an older white male and so felt I might get away with not showing it “voluntarily,” and without a beating.)
COP: You have a nice day, sir.
If the cop had demanded my ID instead of letting me lawfully be on my way, I would have had the choice of standing my Constitutional ground, or likely spending a few hours in jail on some trumped up excuse, to teach me a lesson. Yep, freedom ain’t free. I was sweating balls.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
UK Police Scanned the Faces of 100,000 People at Music Festival
Hey, Big Brother? It’s me. Can we talk about facial recognition please?
The Download FestivalSee, the police used facial recognition technology to scan the faces of thousands of attendees at the Download music festival in the UK without their knowledge.
The excuse the Leicestershire Police used was that they were trying to catch “organized criminals” who specifically target music festivals to “steal mobile phones,” according to a report in Police Oracle. The collected footage is compared against a database of custody images to identify the criminals, in this case, an alleged music festival phone-robbing crime ring that nobody seemed to have heard about prior to it becoming the justification for searching an entire crowd who did nothing but show up to hear some tunes.
The festival saw 91 arrests out of 100,000 people. Most were for alcohol-related mishaps, none for phone theft.
Facial Recognition TechnologyFacial recognition technology is big business. The tech is evolving rapidly. Basically a computer digitizes an image of someone’s face in a way that makes fooling the system difficult, stuff like measuring the distance between eyes, the angle of one’s nose, ear lobe shape, the sort of stuff that can’t be thrown off by face paint, a hat, sunglasses or the like. And the software can be configured to zero in on someone who is wearing face paint, a hat and sunglasses, so nice try, you in the back row. You’re now a person of interest.
Facial recognition is increasingly being used by law enforcement. In the U.S., it’s used by the FBI and local police departments. The largest scale use of the tech in America is at major sporting events like the Super Bowl, supposedly because terrorists are flocking there, even though they never have.Reports suggest airports scan passengers, hotels scan lobbies, stores scan aisles, casinos scan their gambling floors and many police street cameras are tied into the systems. Another publicly-known example occurred after the Boston Marathon bombing of April 2013. The subsequent Boston Calling music fest was subject to heavy use facial recognition surveillance, one guesses in case there were more Tsarnaev brothers out there.
Nobody wants the World Series blown up by terrorists. And guess what — neither before nor after 9/11 has any terror group carried out a mass casualty attack (if you want to count the goofball Tsarnaev brothers in Boston as a terror group, and the [unfortunate] deaths of the three spectators there was “mass,” be my guest.) And of course neither facial recognition tech nor anything else seems to deter our regularly-scheduled mass shootings (been to the movies lately?)
Why It MattersThe concern over widespread and indiscriminate use of mass surveillance technology, such as facial recognition, is that it is widespread and indiscriminate, a form of search (your location) and seizure (your image and location data) that, in the U.S. at least, thumbs its nose at the Constitution’s Fourth Amendment protections against unwarranted actions. So it is simply wrong on its, well, face.
Someone inevitably will respond to all this with a hearty “Well, I’ve got nothing to hide.”
Good for you. You are quite a person if you indeed have nothing at all to hide. And maybe you really don’t, at least under today’s laws.
But information collected never goes away. Your “nothing to hide” argument has built into it your full and true faith that every government, every company, every hacker that can, will or might gain access to that data will never do anything with it against your self-interest. You are asserting that no new technologies will emerge to manipulate that data in a way you blearily can’t conceive of now.
That, my friend, is a lot of faith in Big Brother.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
UN Gives U.S. Flunking Grades on Privacy
For a nation that goes out of its way to tell everybody else what to do about freedomism, and which still has, on paper at least, Constitutional Fourth Amendment guarantees against unlawful search and seizure, America fails miserably in assuring its citizens their rights.
In fact, according to a UN study, the self-proclaimed “Exceptional Nation” ranks with China, Bolivia and Djibouti. Yea us!A United Nations Human Rights Committee issued midterm report cards for several countries based on how well they adhered to and implemented its recommendations related to the International Covenant of Civil and Political Rights, an international treaty outlining the rights of all individuals. The U.S. performance overall was “not satisfactory.”
In particular, the committee noted that the U.S. government failed to establish an adequate oversight system to make sure privacy rights are being upheld, and failed to make sure that any breaches of privacy were regulated and authorized by law, such as requiring a warrant. The lowest grade reflected America’s failure to “ensure affected persons have access to effective remedies in cases of abuse.”
The committee also expressed dismay at the U.S. failure to “establish the responsibility of those who provided legal pretexts for manifestly illegal behavior.”
Last year, the Human Rights Committee submitted recommendations to the United States on areas where it could improve the privacy rights of its citizens, following revelations made by NSA whistleblower Edward Snowden. But according to the midterm review, many of those suggestions were not addressed.
So shut the hell up Americans. You’ll get your freedom when and if the authorities decide to give any to you.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Cops Slam Pregnant Black Woman to Ground, Let White Woman go Free
The cops admit there had been no crime committed. They arrived at the scene to discover two women, one white and one black, unhappy over some minor parking lot thing at their children’s elementary school.Everyone admitted no damage had been done to either car. The women had already separated themselves, and neither had committed or threatened any violence.
There was nothing to see or do, and in fact no reason for the cops to even be there.
Yet within minutes (the action begins around 4:40 into the video, below) the scene involved two cops throwing the pregnant black woman, Charlena Michelle Cooks, to the ground, cuffing her and arresting her for resisting arrest. All because she did not identify herself quick enough for the cops. FYI: the cops did not ask the white woman for ID in the video.
Nonetheless, officials with the city of Barstow, California insisted officers had acted properly when they used force to arrest a pregnant woman who refused to show them her identification, even though the charges were later dismissed.
“I actually do have the right to ask you for your name,” the officer replies.
“Let me make sure,” Cooks says as she makes a phone call to someone.
The officer says he will give Cooks two minutes to verify his right to ask for her identification. But less than 20 seconds later, the officer and a colleague are performing a painful wristlock takedown on Cooks. The pregnant woman screams as she is forced belly first into the ground.
American Civil Liberties Union attorney Adrienna Wong pointed out that Cooks had a right to refuse to show her ID.
“Even if an officer is conducting an investigation, in California, unlike some other states, he can’t just require a person to provide ID for no reason. Officers in California should not be using the obstruction law, Penal Code 148, to arrest someone for failing to provide ID, when they can’t find any other reason to arrest them,” Wong added.
“Imagine getting wrestled to the ground and handcuffed in front of your child’s elementary school,” another ACLU attorney remarked. “Imagine interacting with other parents afterwards. Imagine what kids who saw the incident tell your child. And if you think the whole incident happened because of your race, how does that impact your view of police?”
To make matters worse, Cooks was banned from her daughter’s school until the charges were dismissed.
In a separate settlement with the ACLU prior to the Cooks incident, the City of Barstow had already agreed to provide training to its officers after two brothers were arrested for refusing to provide identification. Charges against the brothers were dropped and the city agreed to pay $30,000 in damages.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Judge Sets Limits on Some Invasive Border Searches
Only a scant 14 years after 9/11 opened the door to unprecedented government violations of the rights of American citizens, what has come to be known as the Post-Constitutional Era, there are small signs that our somnolent courts are slowly rousing.
Slowly.
The Case of Jae Shik KimA federal judge determined the search of a traveler’s laptop without a warrant as he was leaving the country was unreasonable, in a ruling that could help derail the government’s long-held search criteria for international travelers.
In the case, the U.S. District Court of the District of Columbia allowed defendant Jae Shik Kim to suppress key evidence the government found after searching his laptop at Los Angeles International Airport. The Department of Homeland Security suspected Kim of illegally selling aircraft parts to Iran and seized his computer before allowing him to board a flight home to Korea in December 2012. The government cloned Kim’s hard drive, shipped it off to a forensic lab, and searched it, uncovering a series of alleged “incriminating emails” that formed the basis for the government’s case against Kim.
The court concluded the government not only conducted an unreasonable search, but further violated the Fourth Amendment by shipping the computer to a second location where they continued the extensive search.
The judge wrote:
The government points to its plenary authority to conduct warrantless searches at the border. It posits that a laptop computer is simply a container that was examined pursuant to this authority, and it submits that the government’s unfettered right to search cargo at the border to protect the homeland is the beginning and end of the matter.
But to apply those principles under the facts of this case would mean that the border search doctrine has no borders. The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport [at the forensics lab]. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so.
There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search — neither its location nor its scope and duration — that resembled a routine search at the border.”
The Constitutional Borderline
Begin at America’s borders. Most people believe they are in the United States as soon as they step off an international flight, or as long as they are waiting for their outbound flight, as Mr. Kim was in the case above, and are thus fully covered by the Bill of Rights.
Wrong. And the irony that a person can be separated from his Constitutional rights by a border marked by a pane of glass is not to be missed.
The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering or leaving the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
The same process works in reverse; at some point as you depart the U.S., the government believes you are “outside” and thus lack any Constitutional protections. That’s what happened to Mr. Kim.
What once were modest exceptions in Constitutional America morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
Back to the Kim Case
Hanni Fakhory, for Electronic Frontier Foundation, said the opinion in the Kim case wasn’t binding like an Appellate or Supreme Court decision that requires other courts have to follow suit. “But it’s persuasive because it adds to the growing body of case law that says digital devices are different,” he said.
That means the next time the government searches someone’s phone, tablet or laptop on suspicion of criminal activity, a defense attorney can use the case as an example of an invalid forensic search, a deeply invasive search that reveals old emails, call records and other information that can’t be obtained just browsing through one’s device. It is a start.
BONUS: The Supreme Court ruled last year in Riley v. California that law enforcement cannot search a cell phone during an arrest without a warrant.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
New ACLU App Auto-Uploads Video of Police Encounters
It comes down to things like this as citizens fight to preserve their basic rights in the face of militaristic police encounters. So let us use technology to fight back.
A new smartphone app from the ACLU (available in iPhone and Android versions) does two very good things. It allows citizens to exercise their right to video police encounters in the public space, and it guards against the cops unlawfully destroying that video to cover up their own crimes. The ACLU app accomplishes this by allowing people to auto-upload cellphone videos of police encounters to the ACLU. The ACLU will then review and preserve the video footage, even if the cops seize the phone and delete the video or destroy the phone.
In addition, once the video is uploaded, the user can delete the information from his/her phone, lessening the chance of retaliation by the cops if they discover the “evidence” during a post-arrest search.
The app features a large red “Record” button in the middle of the screen. When it’s pressed, the video is recorded on the phone and a duplicate copy is transmitted simultaneously to the ACLU server. When the “stop” button is pressed, a “Report” screen appears, where information about the location of the incident and the people involved can also be transmitted to the ACLU. The video and the information are treated as a request for legal assistance and reviewed by staff members. No action is taken by the ACLU, however, unless an explicit request is made, and the reports are treated as confidential and privileged legal communications. The videos, however, may be shared by the ACLU with the news media, community organizations or the general public to help call attention to police abuse.
The app is available in English and Spanish. It includes a “Know Your Rights” page, a library of ACLU materials in your pocket.
“People who historically have had very little power in the face of law enforcement now have this tool to reclaim their power and dignity,” said the director of the Truth and Reinvestment Campaign at the Ella Baker Center, which is working with the ACLU of California to support the launch of the app.
Who will guard the guards? We will.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
FBI Monitored Peaceful Demos in Baltimore with High-Tech Surveillance Planes
The FBI surveilled peaceful protests in Baltimore following the police killing of Freddie Gray, protest acts protected by the First Amendment, from the air, using high-tech monitoring aircraft.The surveillance aircraft can be equipped with infrared and other surveillance gear that extend the intrusion into privacy far into unconstitutional territory.
When violence rocked Baltimore recently, local Police Captain Jeff Long told reporters “When you’ve got something like this, you’ve got people running all over the place, throwing rocks and looting and starting vehicles on fire and destroying vehicles like this, really the best vantage point you can get is from the air.”
Which is why city and state police took to the air in helicopters and small planes, all clearly marked.
Eyes in the Skies
Less obvious was a single engine prop Cessna and a small Cessna jet flying over the city, not during the worst of the violence, but during periods of peaceful protest. Who did they belong to?
In response to media inquiries, the Baltimore police referred questions to the FBI. The FBI initially refused to comment. They eventually released a statement claiming the aircraft worked for the Bureau, saying also “The aircraft were specifically used to assist in providing high altitude observation of potential criminal activity to enable rapid response by police officers on the ground. The FBI aircraft were not there to monitor lawfully protected first amendment activity.” The local FBI spokesperson also noted any aviation support supplied to local police must be approved at the highest levels of the FBI.
The aircraft, however, are not owned, overtly at least, by the FBI. Research done in part by the Washington Post shows the ostensible owners as NG Research, located near Manassas Regional Airport, just outside of Washington, DC. Searches of public records revealed little about the company, which could not be reached by the Post.
Understanding the TechnologyThe key to understanding the constitutionality of the FBI’s dragnet search is knowing what sensors were mounted on each aircraft.
According to Cessna, “when you choose Citation [the jet believed to have been overhead in Baltimore] for your surveillance and patrol aircraft, we customize your jet to fit your exact mission requirements. For example, jets can be equipped with a securely mounted EO/IR device, technology specially suited to carry out territory surveillance work such as border patrol, land-use patrol, and general policing.”
EO/IR refers to electro-optical and infrared capabilities. In this context the former can be any type of laser or telescopic device used for visible light, the latter measuring “heat,” allowing one to “see” in the dark. Stingrays, electronic devices which can monitor and/or disrupt cell phone communications, can also be mounted on such aircraft.
The FBI is also known to employ aircraft with the Wescam stabilized surveillance sensor pod, allowing high quality images to be taken under bumpy flight conditions.
Such technology has been used extensively by the U.S. military in general, and by Special Forces in the particular, in their hunt for terrorists abroad, and represents another example of the weapons of war coming to the Homeland, now aimed at Americans instead of “the enemy.”
Here’s a sample image via Ars Technica of what a zoomed out nighttime IR image can show:
ACLU ActionsThe ACLU has filed a request with the FBI to learn what video and cell phone data was collected during the flights.
It is possible that the FBI was simply duplicating the visual search capabilities likely to have been employed by regular Baltimore cops and their prop aircraft. However, such duplication of effort seems unlikely. One can reasonably suppose the FBI joined the aerial surveillance with something new to bring to the party, such as more advanced observation tech.
For example, on May 1 and May 2, what is believed to be the FBI Cessna Citation V jet made nighttime flights (path recorded below), orbiting Baltimore at the relatively low altitudes for a jet aircraft of 6,400 and 9,400 feet, based on records from Flightradar24. That action would be consistent with the use of any of the surveillance devices noted above.
Constitutional QuestionsThe constitutional questions are significant.
Civil libertarians have particular concern about surveillance technology that can gather images across dozens of city blocks, tracking the travel, actions and associations of people under no suspicion of criminal activity.
“A lot of these technologies sweep very, very broadly, and, at a minimum, the public should have a right to know what’s going on,” said Jay Stanley, a senior policy analyst at the ACLU specializing in privacy and technology issues.
If the FBI was using infrared (IR) devices overhead, that use may have constituted an unlawful search.
In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held that the use of a thermal imaging, or IR, device from a public vantage point to monitor the radiation of heat from a person’s home was a “search” within the meaning of the Fourth Amendment, and thus required a warrant.
Perhaps the ACLU can check if the FBI was issued warrants for most of the city of Baltimore. And then stick a fork in it people, ’cause this democracy is about done.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Body Blows Against the First Amendment
Two recent cases show the contempt with which our government, at the federal and state levels, views the First Amendment.
First Amendment Semi-Win After Military Police Harass, Sexually Threaten JournalistA very basic tenet of our democracy is that a free press exists to report to The People on the actions of their government, and that government is prohibited by the beautiful words of the First Amendment from interfering. In a small instance in Ohio, after the government had military police officers in the United States harass and confiscate the cameras of journalists, the journalists went to court and won back their rights.
The U.S. government agreed to pay The Toledo Blade newspaper $18,000 for seizing the cameras of a photographer and deleting photographs taken outside the Lima Tank plant last year. In turn, The Blade agreed to dismiss the lawsuit it filed U.S. District Court on behalf of photographer Jetta Fraser and reporter Tyrel Linkhorn against Chuck Hagel, then Secretary of Defense and the military police officers involved in the March 28, 2014, incident.
An attorney for The Blade said the settlement was made under the First Amendment Privacy Protection Act, which prohibits the government, in connection with the investigation of a criminal offense, from searching or seizing any work product materials possessed by a journalist. “The harassment and detention of The Blade’s reporter and photographer, the confiscation of their equipment, and the brazen destruction of lawful photographs cannot be justified by a claim of military authority or by the supposed imperatives of the national security state.”
The government admits no wrongdoing, however, and just paid off the settlement.
Here’s what happened. The reporter and photographer were in Lima to cover a news conference at another facility and had been tasked to take photos of area businesses for future use, including pictures of the tank plant, known as the Joint Systems Manufacturing Center.
As the pair were leaving they were detained by three military police officers and questioned. Fraser showed the officers her Blade identification, but initially declined to provide her driver’s license as she was not driving. She was removed against her will from her vehicle and handcuffed for more than an hour.
During the confrontation, the officers repeatedly referred to Ms. Fraser in the masculine gender. She objected and was told by one officer, “You say you are a female. I’m going to go under your bra.”
The officers then confiscated two cameras, memory cards, a pocket-sized personal calendar, and a notebook in clear violation of the First Amendment.
Philly Cop Arrests Man for Photographing Philly Cop Harassing Homeless Woman
A college student arrested as he photographed a Philadelphia police officer harass a homeless woman in a public park was put into handcuffs and held for an hour. Federal jurors must now decide whether the cop had cause to cuff Coulter Loeb, 24, and charge him with disorderly conduct.
The case, however, is about far more than a simple disorderly conduct rap. At issue is how the Philadelphia government sees the First and Fourth Amendments to the Constitution, and how it views people fulfilling their responsibilities as citizens to provide oversight to government employees performing their jobs. And it does not look good for all that in Philly.
Things went south almost from the get-go, after the trial judge dismissed any connection between the arrest and the First Amendment.
In a pretrial order that covered two similar cases, the judge ruled that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011, when this incident occurred. “Whether the Third Circuit will eventually decide to follow what appears to be a growing trend in other circuits to recognize a First Amendment right to observe and record police activity is, of course, not for this court to decide, even if there are good policy reasons [to] adopt that change,” U.S. District William Yohn wrote. He therefore threw out Loeb’s free-speech claim, leaving a jury to weigh only the Fourth Amendment issues of false arrest and malicious prosecution.
Moving on to how the city of Philadelphia views these issues, we turn to the city attorney working the case, who described arrestee Coulter Loeb, in front of his ACLU attorney, as “a meddlesome 24-year-old” with “very high-minded ideas about government” and the role of media. The Assistant City Solicitor told jurors that Loeb was interfering with police work by photographing police work in a public place.
But what was in the mind of the arresting officer? “He [Loeb ]looked me up and down, and then took one step back. That to me was being a wise guy,” said the cop.
Irony Alert: Yes, yes, it was in Philadelphia in 1787 that the Constitutional Convention was held. How far we have fallen.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Defining Post-Constitutional America
As regular readers of this blog know, a central theme of mine is Post-Constitutional America, the third great era of our history.
The Way It Was
In the first era, the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. As imperfect as all that was, it represented a concept of moving toward the better. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
The Way It Is
Now, we are wading into the ever-deeper waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism.
America has entered its third great era: the post-constitutional one. Here we have only the rights the government allows us to have. Think of it as a variable totalitarian system. Free speech is not outlawed, but can be restricted at will — a punk cop Tasers a legitimate protester, the Federal government slams a prominent journalist away. Privacy exists, but only as the government doles it out, often as a reward for not being a troublemaker, while retaining the “right” to pull it away. The Stasi and 1984‘s Big Brother sought total control over every aspect of peoples’ lives; today’s power is used as needed, though the mechanisms of broad application exist and grow.
In a review of the new book Guantánamo Diary
by Mohamedou Ould Slahi, writer Mark Danner gets it. Here’s what he said:
Not by Any Recognizable RulesOn or about Sept. 11, 2001, American character changed. What Americans had proudly flaunted as “our highest values” were now judged to be luxuries that in a new time of peril the country could ill afford. Justice, and its cardinal principle of innocent until proven guilty, became a risk, its indulgence a weakness. Asked recently about an innocent man who had been tortured to death in an American “black site” in Afghanistan, former Vice President Dick Cheney did not hesitate. “I’m more concerned,” he said, “with bad guys who got out and released than I am with a few that, in fact, were innocent.” In this new era in which all would be sacrificed to protect the country, torture and even murder of the innocent must be counted simply “collateral damage.”
At its root is a maddening ambiguity born of a system governed not by any recognizable rules of evidence or due process but by suspicion, paranoia and violence.
That sums it up for me about as well as anything else I’ve been allowed by the government to read.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
I Wonder What Dr. King Would Say
There will be many, many articles today speculating what Dr. Martin Luther King would say about this event or that. There is much to talk about — the police killings of young black men, crippling economic inequality (today the 85 richest people on the planet have the same wealth as the poorest 3.5 billion combined), the use of gerrymandering and election day tricks to disenfranchise people — the list is a long one.Dr. King’s most powerful message revolved around freedom. Freedom for blacks, freedom for whites, freedom for Americans, freedom. Writing from jail, in his famous letter from Birmingham, King said “Injustice anywhere is a threat to justice everywhere.” King was rightly focused primarily on the injustices of segregation. But his concept of freedom extended far beyond simply race. He understood the word in the broadest possible sense, and so I’ll add one more article to the stack today putting words into Dr. King’s mouth, seeking to bring his message forward.
Following a singular day — one day — of terror attacks, we set fire to the whole world. Willingly, almost gleefully, we invaded Afghanistan and Iraq, the former on the promise of bloody revenge and the latter based on flimsy falsehoods that today seem as real as childhood beliefs. We reinvaded Iraq in 2014, and brought war to many other places. But we want to believe and so it is easy to lie to us, just like with the Tooth Fairy.Worse yet, we turned on ourselves. With a stroke of a pen, we did away with 226 some years of bitterly fought for civil rights — silence the First Amendment and do away with critics and whistleblowers, cow journalists and use the police to break up the peaceful assembly of citizens seeking to address their government, rip open the Fourth Amendment and allow the government to spy into our lives. Plumbing for the depths of evil, we as a nation torture men, create an archipelago of secret prisons and make excuses to keep them still open, build a regime of indefinite confinement and rendition to feed our concentration camps, hungering for flesh. When even that was not enough, we unleashed death from the sky, smiting people who bothered us, maybe occasionally threatened us, often times simply people who were near by or looked like our possible enemies. In the calculus of the day, we kill them all without a concern that any deity would sort the bodies out later. How much would be enough for revenge?
That our nation can be both vengeful and impersonal at the same time horrifies. I wonder what Dr. King would say.
We thought we had a chance at change in 2008 but instead were proven again to be just dupes and amateurs. He could have turned it all around, in those first weeks he could have asked the rivers to flow backwards and they just might have. He could have grounded the drones, torn up the Patriot Act, held truth commissions to bring into the light our tortures, re-emancipated America in ways not unlike Lincoln did in the 1860s. Slam shut the gates of Guantanamo, close the secret prisons that even today still ooze pus in Afghanistan, stop the militarization of Africa, bring the troops home, all of it, just have done it. What a change, what a path forward, what a rebirth for an America who had lost her way so perilously. One man could have made a difference and when he did not even try, he helped solidify in America a sense of cynicism and powerlessness that empowers evil people further. I wonder what Dr. King would say.Today, this day, we are left with only ironic references to where we were and what we had been. We now today go through the motions of a celebratory day like an old married couple dutifully maintaining civility where joyous lust once was. We are raising a new generation who accept that their nation tortures, invades, violates and assassinates, all necessary evils requiring us to defame democracy while pretending to protect it.
On this same day we celebrate the legacy of Dr. Martin Luther King, who wrote to us all from a jail cell in sweltering Birmingham. King’s guidance in that letter was that the “means we use must be as pure as the ends we seek.” We cannot fight wrongs by committing wrongs. For what noble crusade do we allow the torturers to walk free? To claim the right to kill people, even Americans, anywhere in the world simply because we can do so? Why do we prolong wars, long ago not just lost but rendered pointless, in Afghanistan and Iraq and elsewhere? For what crusade do we keep our enemies in Guantanamo? These are the features and questions of Post-Constitutional America. I wonder what Dr. King would say.
I’ve been accused of over-romanticizing America’s Constitutional Era, 1789-9/11/2001. Indeed, didn’t the worst of the abuses Dr. King fought against take place during that time, as King describe them “vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity.”The horrors ranged from those depths to the smallest of examples; again, from Birmingham, King wrote “when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people.”
America’s Constitutional Era was grossly imperfect. Yet for its obvious failings, there was a sense of the possibility of progress; halting, awkward, unfinished, but, well, for lack of a better word and to use a word that has become a symbol of modern times’ irony, Hope. Dr. King believed in Hope, and indeed based the soul of his movement on it — things could be made better, saying “If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail.” I wonder what Dr. King would say today about America.
Lots of talk today, Martin Luther King Day. But those are some of the questions Dr. King would demand answers for from his grave.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Adding Up Eric Garner
The argument you hear a lot is about not taking one case — Eric Garner for us now — and extrapolating too much from it. A cop killed an African-American man. That is one case, with its own unique circumstances, so you can’t claim it is just another example of a broad pattern of racism. Or, racism aside, that police violence and deadly force against citizens has become unmanageable.Maybe. At least until you add it all up. Here are some numbers, so as they say, you do the math.
Three
The New York police officer who killed Eric Garner has been sued three times for allegedly violating the constitutional rights of other blacks he and fellow cops arrested.A 2013 federal court lawsuit alleges that Daniel Pantaleo and other officers subjected Darren Collins and Tommy Rice to “humiliating and unlawful strip searches in public view.” They said Pantaleo “slapped and tapped” their testicles. The officers insisted they acted reasonably and exercised their discretion, but the lawsuit was settled last year for $30,000.
Rylawn Walker’s 2012 lawsuit alleged Pantaleo and other officers falsely arrested him for marijuana. The charges against Walker were dismissed.
A third suit involved Kenneth Collins, who alleged Pantaleo violated his rights during a 2012 marijuana arrest, including “a degrading search of his genitals” (disposition unknown)
59 PagesA 59-page report released by the United States Department of Justice on Thursday reveals widespread, excessive use of force by police officers in Cleveland. Cleveland is the city where cops recently killed 12-year-old Tamir Rice while he was carrying a toy gun. Before that, Tanesha Anderson died in police hands when cops were supposed to be transporting her for mental health treatment.
In another incident from the report, a 300-pound officer sat on a 13 year-old boy and punched the boy in the face repeatedly while the boy was handcuffed in the back of a police car. In another incident, police used their stun gun on a juvenile suspect, despite the fact that the boy was being held on the ground by two officers. In a third incident, an officer fired upon a man who fled after repeatedly asking the officer to produce his badge in order to prove that he was, in fact, a cop. The cop did not do so.
The overarching conclusion of the report is that Cleveland police “too often use unnecessary and unreasonable force in violation of the Constitution,” and that “supervisors tolerate this behavior and, in some cases, endorse it.”
HundredsMore than 550 homicides by police officers between 2007 and 2012 were missing from the federal statistics or not attributed to the law enforcement agency involved, the Wall Street Journal reported.
This makes it nearly impossible to figure out how many people cops kill — justifiably or not — every year. To compile the report, the Journal looked at the internal figures of killings by police from 105 of the nation’s 110 largest police departments. Five declined the request for access. The internal records show at least 1,800 deaths during the aforementioned timeframe. That is about 45 percent higher than the FBI’s tally of 1,242. Some law enforcement agencies are not reporting all the police killings that happen on their watch.
ThousandsYoung black males in recent years were at a far greater risk of being shot dead by police than their white counterparts – 21 times greater, according to a ProPublica analysis of federally collected data on fatal police shootings.
One way of appreciating that stark disparity is to calculate how many more whites would have had to have been killed for them to have been at equal risk. The number is jarring – 185 – more than one per week over the three year period the statistics cover.
ProPublica’s risk analysis on young males killed by police supports what has been an article of faith in the African American community: Blacks are being killed at disturbing rates when set against the rest of the American population.
Details matter. Did police always list the circumstances of the killings? No, there were many deadly shootings where the circumstances were listed as “undetermined.” 77 percent of those killed in such instances were black.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Cop Slaps Man Exercising Rights
The Fourth Amendment to the Constitution guarantees your right against an illegal search by the police. Basically, you can only be searched under two conditions: a “lawful” search as defined by decades of Supreme Court decisions and with a warrant.(Of course none of this is legal advice and I am not a lawyer. Never make decisions without the advice of a lawyer.)
Lawful vs. Warranted Search
What is and is not a “lawful” search can get complicated, and has been the subject of much case law. A really basic example is after you have been properly arrested and are on the way to jail, the cops can search you for weapons without your permission. A warranted search is everything else; the police need to go to court and get permission from a judge to search you. The latter especially applies to enclosed spaces such as your home and car.
If the cop thinks he has a clear lawful search that will stand up in court, he’ll just go ahead and do it. He does not need your permission. If the cop thinks he would otherwise need a warrant, he will ask your consent to search. If you grant such permission, the search automatically becomes “lawful.” You do not have to consent, and many lawyers will tell you never to do so without legal advice. The cops can be tricky, saying things like “Hey, you don’t mind if I just take a look?” or “So it’s cool if I just check inside, right?” If you nod, shrug or in some cases say nothing in response, that is often seen as granting permission. Some courts have held if you even open a door, or leave one unlocked, or allow the cops into your home “just to talk out of the rain,” that is “permission.” The clearest thing is to say “NO, I do not consent to a search” if that is your intent.
But the cops don’t always play by the rules. The video shows what happens when they don’t, and now, in America, what happens when you simply exercise your Constitutional rights.
What Really Happens
In yet another example of how police officers act today if they don’t know there’s a camera on, a New York sheriff’s deputy was suspended without pay after a video that appears to show him slapping a young man went online. The cop is seen quickly losing patience with a man who did not want his car searched, as is his right under the Fourth Amendment. The cop was suspicious of the two men when he saw a .22-caliber rifle on the back seat of the car. Note that the right to lawfully possess a firearm is also protected by the Second Amendment to the Constitution. The men involved stated they had parked their car at a local business and were walking to a nearby party when confronted by the cop. The man stated his friend had purchased the .22-caliber rifle earlier that day, had a receipt for the weapon.
“We’ll get a f*cking search warrant,” the cop says, apparently as a response to the man’s insistence that he did not consent to a search. “I wasn’t in my car when all this was happening,” the man says. “Why don’t you want to search my house or something?” The cops then replies “Let me see your f*cking keys.” When the man asks why, the cop is direct: “I’m going to search your f*cking car, that’s why… You wanna f*cking resist?” And that’s when the slap can be heard, although not seen.
The second man, who was filming, tells the officer what just happened was “intense,” and the cop answers: “You like that, huh? I can get a lot more intense, believe me.” The man replies “Slap me around?” The cop’s answer: “Yeah, I’ll rip your f*cking head off and sh*t down your neck.”
The cop was unapologetic when contacted by the media. He insisted he “was concerned [about] a public safety issue” and that if he “had to it all over again… I’d probably do the same thing.”
So there you go, simply another story of what life is like for citizens in Post-Constitutional America. Your rights? You’ll get them when the cops are darn well ready to let you have them.
Learn more about your right to video the police at Photography is Not a Crime.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
U.S. Post Office Spying on Americans Without Oversight
The United States Postal Service disclosed it approved nearly 50,000 requests, called “mail covers,” last year alone from law enforcement to secretly monitor the snail mail of Americans.
An audit shows the surveillance program is more extensive than widely known and that oversight protecting Americans is lax: 21 percent of the covers examined were approved without even the minimal required written authorization and 13 percent that did have authorization “were not adequately justified.” The Post Office has no standing review procedures.
Mail Cover is Nothing New, But…
The Post Office helping spy on Americans per se is nothing new; its program to record your mail’s “metadata,” who sent what to whom, complete with addresses and date/time stamps, has existed in the form of an overt program detailed in federal law called “mail cover” since well before the term metadata was even invented. As mail cover does not involve reading the mail’s contents, only information on the outside of the envelope or package that could be read by anyone seeing the item, it is not considered by precedent a violation of the Fourth Amendment’s protections against unwarranted searches.
Official versions of mail cover are acknowledged as far back as World War I. But like many such things– wiretapping, border detentions, searches and seizures, old Executive Orders, signing statements– its former existence, restrained in theory and often in practice in Constitutional America, is largely irrelevant now to all but historians. What has happened post-9/11 to mail covers is what has happened to America.
How Did Mail Cover Use to Work?
A mail cover has to be requested by a state or federal law enforcement agency. Following internal approval, postal workers intercept the target’s mail before delivery, and record the names, return addresses and any other information from the outside of letters and packages before they are delivered to a person’s home. The Post Office does not notify the recipient or the sender that the cover is in place.
Prior to 9/11, the process had an old-timey feel to it, almost quaint. In a 2006 leaked instruction manual, agencies seeking a mail cover were told to first fill out a paper form, the External Law Enforcement Request for Mail Cover Template. Law enforcement was reminded to include the Zip +4 for all subjects. An electronic version of the form was supposedly available, but you had to telephone the Post Office personally to get one.
The template required a paper cover letter requesting the action on agency letterhead, signed by the requesting agent’s supervisor. The form would then need to be put into an envelope marked Restricted Information, with that sealed inside a second envelope, and then snail-mailed via the regular first class, unclassified, mail system, to the appropriate section of the Post Office. Information obtained by the Post Office would be sent back on a Form 2009.
Implementation was largely also a paper process. One subject learned his mail was being covered after he received a handwritten card, apparently delivered by mistake, with instructions for postal workers to pay special attention to the letters and packages sent to his home. “Show all mail to supv for copying prior to going out on the street,” read the card. The word “confidential” was highlighted in green. Another subject was told he was being covered by his regular mail delivery person.
The standards for law enforcement to request a mail cover were low; “reasonable grounds that demonstrate the information from the mail cover is necessary to develop evidence in a criminal investigation.” Covers were not to be used as the first step in an investigation (on an honor system) and could not include attorney-client mail if the attorney of record is known (on an honor system.)
The key point is that absent a specific request to monitor a specific person, the mail was simply delivered as it had been since the time of the pony express.
Mail Isolation Control and Tracking (MICT)
Sometime after the anthrax attacks of 2001, when the mail was used to send the poison letters, and its public acknowledgement is 2013, the Post Office created the Mail Isolation Control and Tracking (MICT) system.
Under the new MICT system, an imaging tool is used to photograph of the exterior of every piece of paper mail processed in the United States. The images are kept, the Post Office says, for 30 days, allowing them to retroactively track mail at the request of law enforcement. There are no stated limits on how long law enforcement may store any information they receive from the Post Office. In addition, mail covers can be extended indefinitely, meaning a flow of data-in for years can be done if desired. MICT is the companion program to the NSA’s efforts: collect everything, store it, and then dig in retroactively. As has been said of the NSA , why look for the needle now, when you can collect the whole haystack? Collect it all, tag it, store it and later, whatever it is you want, search for it.
Like the metadata obtained from cell phone records, mail covers are “a treasure trove of information,” James Wedick, a former FBI agent, told the New York Times. “Looking at just the outside of letters and other mail, I can see who you bank with, who you communicate with, all kinds of useful information that gives investigators leads that they can then follow up on with a subpoena.”
As for those subpoenas, and any warrants thought to be needed to actually open and read mail of interest, George W. Bush asserted in a 2007 signing statement that the federal government had the authority to open mail without warrants in emergencies or in foreign intelligence cases. Others have argued such authority has existed since 1978 as part of the original FISA legislation.
Abuse
It should be blindingly obvious how the mail cover system, particularly with the broad, digital sweep of MICT available, stands ready to be abused (examples of past abuses are the alternate, secret, mail cover program [HTLINGUAL] run for twenty some years by the CIA, and the FBI’s COUNTERINTELPRO work against Vietnam War opponents.) The current mail cover system operates under no judicial or outside oversight. It relies on numerous assertions, an honor system if you will, by law enforcement that the Post Office cannot verify. The system touches the mail of every American.
How many Americans have their mail subjected to this scrutiny? In 2013 alone, the Postal Office processed about 50,000 mail covers.
Abuse? A sample examined by the Postal Service Office of Inspector General (OIG) “found some controls lacking.” For example, 21 percent of the covers examined were approved without even the minimal required written authorization and 13 percent that did have paper requests “were not adequately justified.” The audit also found hundreds of mail covers in active status even though their cover periods had ended. Part of the problem is that the Post Office has no standing review procedures for its own program.
Other than the referenced OIG report, the Post Office refuses to disclose how many requests for mail covers it has received, nor will it break down the requests by local law enforcement versus federal law enforcement, nor will it specify how many requests are related to criminal investigations and how many deal with national security investigations. In fact, the Post Office has provided false information to some of those questions to the media.
Conclusion
On a oddly positive note, the Postal Service Office of Inspector General’s report did find handling of mail cover requests tended to be sloppy and slow, and the case management software ineffective. Such are the things that stand now between Americans and the Post-Constitutional Dark State.
While small in size compared to the global operations of the NSA, the Post Office mail cover program shares many of the same hallmarks. It grew in size, complexity and technology post-9/11 without adequate safeguards built in, and has operated without those safeguards ever since. It is a secret program affecting all Americans, only disclosed by accident, Freedom of Information Act requests and a few journalists willing to look into the government’s actions. The program moved very quickly from targeting a select few Americans to covering every one of us. Like the actions of the NSA against Americans, the mail cover program at the very least rubs rough against the edges of the Fourth Amendment’s guarantees against unlawful searches, relying on legal precedents created in another era while using secrecy to thwart new legal challenges.
There are the “it’s just metadata” faux arguments. Can’t someone look over my shoulder at the Post Office anyway? Big deal. Actually, it is a big deal. What is significant about the many disparate elements of a global surveillance system is not pieces of data in isolation (I got a letter today) but how those small elements can be combined to create a comprehensive picture of someone. Location data from phones + credit card transactions + license plate trackers + text messages sent and received + pharmacy purchases + Facebook posts + mail sent and delivered… well, you get it.
And on perhaps a more personal note, one is left thinking, aw c’mon, now the Post Office too? The Post Office used to be one of the good guys, bringing packages and Christmas cards, creating a kind of a miracle that for about half a buck, a letter with details of Aunt Tillie’s surgery could journey from Ohio to Montana in just a few days. At some level, a lot of Americans were long-suspicious of the NSA, CIA. Sadly, post-9/11, the Post Office now too is just another tool of the surveillance state.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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