Wednesday, February 24, 2010

Judge reads elegy for the Fourth Amendment

Last week, admonishing his colleagues, who had just turned away an important search-and-seizure case, Chief Judge Alex Kozinski, of the U.S. Ninth Circuit Court of Appeals, effectively pronounced the Fourth Amendment dead. After the court signed off on police search of an apartment without a warrant, probable cause or reasonable suspicion, Kozinski said, "Whatever may have been left of the Fourth Amendment ... is now gone."

In the case of United States v. Lemus, police peacefully arrested Juan Hernan Lemus of Calexico, California, outside his home "before he could fully enter the doorway and retreat into his living room." With Lemus in custody, and without a search warrant for the apartment, police then entered the dwelling for a look around.

From the majority decision (which is written like a crime novel):
Diaz, in the living room, got Detective Longoria’s attention. Wasn’t there something sticking out from the couch? Detective Longoria thought it looked like the butt of a weapon. Since Lemus was a felon, having a gun would be a crime. Detective Longoria lifted the couch cushion to make sure, and confirmed that it was a semi-automatic handgun. It was later determined to be a Sturm and Ruger, 9 millimeter.
Unsurprisingly, Lemus's attorneys challenged the search, which was the basis for subsequent charges unrelated to the original arrest. They pointed out that precedent permits search of the immediate area around suspects arrested in their home to assure the safety of the arresting officers, and limited protective sweeps of the full dwelling to make sure no potential allies of the arrestee are lurking in the shadows. But Lemus was already in custody, having been arrested outside. Police chose, on their own, to enter the residence.

No problem, said the district court. The majority of judges at the appeals level agreed.  "Lemus was arrested in an area 'immediately adjoining' the living room, a limited search of that room was proper without either reasonable suspicion or probable cause as a protective search incident to the arrest."

But Kozinski objects (PDF):
The panel's fig leaf for this clearly illegal search is that "at most Lemus was only partially outside" of his living room door when the officers seized him. Lemus, 582 F.3d at 963. So what? Under Buie, Lemus’s location at the time of arrest is irrelevant; it's the location of the police that matters. Buie authorizes a search incident to an in-home arrest because being inside a suspect's home "puts the officer at the disadvantage of being on his adversary’s 'turf,' " ...
Frankly, the majority's reasoning seems to suggest that police can conduct a full, warrantless search of your home if they arrange to arrest you within reach of your front door. Not that they would ever game such a legal rule, of course ...

Judge Kozinski points out the startling implications of the appeals court's decision to let the lower-court decision stand.
This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency -- in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun "in plain view" -- stuck between two cushions of the living room couch -- and we reward them by upholding the search. ...

The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.
Very well reasoned. Very strongly worded.

But the majority decision in favor of the "fish bowl"still stands.

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Tuesday, February 16, 2010

Tagged and tracked by your own cell phone

Last Friday, federal attorneys told the U.S. Third Circuit Court of Appeals that government officials should be able to track the location of Americans by following their cell phone transmissions -- without having to get a warrant. While the FBI and state and local officials have already obtained logs from mobile phone companies that reveal the locations of customers' telephones, the practice has never formally been endorsed by the courts. The latest federal arguments -- and rebuttals by civil liberties organizations -- give the courts the opportunity to either support or repudiate federal claims that Americans have no "reasonable expectation of privacy" so long as they carry cell phones.

In a lower-court decision (PDF) regarding an ongoing drug investigation, now being appealed by the federal government, Magistrate Judge Lisa Pupo Lenihan warned:
[T]he location information so broadly sought is extraordinarily personal and potentially sensitive; and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse.
Lenihan determined that the information sought by the Justice Department should be available only if the government could meet the usual probable cause standards necessary for a warrant -- a standard the Justice Department claims to find too burdensome.

Responding to the federal government's position that signing a cell phone contract implicitly gives the state the right to know your whereabouts, the American Civil Liberties Union says the government "should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool."

In a friend-of-the-court brief (PDF), the ACLU, along with the Electronic Frontier Foundation and the Center for Democracy and Technology, support Lenihan's refusal to allow federal access to what Justice Department attorney Mark Eckenwiler calls "routine business records held by a communications service provider." Since those records reveal people's locations, the civil liberties groups argue that they were properly withheld, and that their disclosure raises serious Fourth Amendment concerns. Specifically, they agree that revealing such information should require a warrant.

Lenihan's opinion was signed by four of her colleagues in a show of solidarity that seems, from records of the proceedings, to impress the appeals court judges. The civil liberties implications of the Justice Department move also seem to impress the judges; at one point, Eckenwiler was asked from the bench:
There are governments in the world that would like to know where some of their people are, or have been. For example, have been at what may be happening today in Iran, have been at a protest, or at a meeting, or at a political meeting. Now, can the government assure us that -- one, it will never try to find out that information, and two, whether that information would not be covered ...?
It's unclear, however, whether that's an omen of the final result.

The full oral arguments are available online in audio format at the court Web site (see files beginning with 08-4227)


Tuesday, December 29, 2009

Let's have some more of that failed security theater

It's worth noting that Umar Farouk Abdulmutallab was thwarted in his Christmas Day attempt to blow an airliner out of the sky, not by institutional security measures, but by an alert passenger and the cabin crew of the airplane in question. It's also worth noting that, rather than take inspiration from Jasper Schuringa's exercise of personal initiative, various government seatwarmers around the world plan more of sort of the sort of security measures that have long failed to do much more than make air travel an unpleasant chore.

Abdulmutallab, a 23-year-old Nigerian dubbed the "Fruit of the Loom bomber" by some wags, attempted to detonate a bomb he'd smuggled on board Northwest Airlines Flight 253 from Amsterdam to Detroit as it approached its destination. He'd been allowed to board even though he'd been placed on one of the U.S.government's myriad lists of suspicious persons with terrorist ties after his own father, a prominent Nigerian banker, warned U.S. authorities that Abdulmutallab is dangerous.

Abdulmutallab was brought up short only when passengers on the plane noticed flames after the terrorist ignited his explosive device. They jumped the would-be-bomber and doused the fire. Dutch video director Jasper Schuringa is credited with putting Abdulmutallab in a headlock and stripping and subduing the terrorist with the assistance of flight attendants.

"We had to do something," Schuringa told reporters. Well, yes -- they did. It's very likely that the passengers and crew escaped harm because they quickly reacted to circumstances that they couldn't have foreseen as they happened.

It's difficult, really, to imagine a better defense than people willing and able to take initiative. Dutch authorities have taken a lot of flack for letting Abdulmutallab slip his explosive device through security, but terrorists have had decades to adjust their techniques to ever-tightening security measures at airports. American officials have been called on the carpet to answer for allowing Abdulmutallab to board a U.S.-bound flight when he's listed as a terrorism suspect, but the list he's on -- the Terrorist Identities Datamart Environment list -- reportedly contains 550,000 names.

There comes a point of diminishing returns, when you've listed so many potential threats that there's no possible way to react to them in any effective manner. I suspect that point comes somewhere before you tally up a half-million terrorism suspects.

But Abdulmutallab was stopped -- on the plane, by passengers and crew. While the fact that the terrorist plot got that far is being treated as a failure in many quarters, it may have run up against the most effective security measures that there can ever be -- people at the scene who take responsibility and initiative as a threat materializes.

That's the most effective security measure there can ever be because its really the only measure that can't be easily anticipated or evaded by plotters. After all, if they want to harm people, terrorists have to be near people. And those people have the potential to react on the spot, as needed.

That security officials appreciate the value of such flexibility is clear from the Transportation Security Administration's announcement that it will "surge resources as needed on a daily basis" and that "[p]assengers should not expect to see the same thing at every airport."

OK. Flexible is good.

But TSA officials aren't the targets. They're the people the terrorists are evading. No matter how many new checkpoints or measures they put in place -- millimeter-wave scanners, extra baggage checks at gates, behavior detection, dogs, bans on putting anything on your lap or moving around the cabin -- the most officials can do is create hurdles that terrorists must plan for, and that seriously inconvenience anybody who still chooses to travel through the police state that air travel has become.

That government officials know that they engage more in security theater than actual security is pretty clear. The Government Accountability Office has called the TSA on the carpet in the past for implementing procedures without ever bothering to investigate their effectiveness. In a 2007 report, the GAO recommended:
[T]he Secretary of Homeland Security should direct the Assistant Secretary of Homeland Security for TSA to develop sound evaluation methods, when possible, that can be used to assist TSA in determining whether proposed procedures would achieve their intended result...
In March 2009, the GAO followed up, finding (PDF):
TSA has taken some actions but has not fully implemented a risk management approach to inform the allocation of resources across the transportation modes (aviation, mass transit, highway, freight rail, and pipeline). ...
Without effectively implementing such controls, TSA cannot provide reasonable assurance that its resources are being used effectively and efficiently to achieve security priorities.
The latest measures will almost certainly be implemented with the same disregard for effectiveness, because they are and can only be primarily for show. Real security doesn't come from lumbering institutions, uniformed snoops and high-tech scanners, it comes from people who take responsibility for themselves.

But what bureaucrat wants to admit that there's only so much he can do? Who wants to put himself out of a job by telling scared travelers that real security comes from emulating Jasper Schuringa?

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Tuesday, November 10, 2009

Feds want to know: Just who are your readers?

The Electronic Frontier Foundation reports that, on January 30 of this year, the Justice Department not only demanded to know who was reading the IndyMedia alternative news site, but also forbade the site to publicize the demand.
[T]he government was asking for the IP address of every one of's thousands of visitors on that date — the IP address of every person who read any news story on the entire site. Not only did this request threaten every visitor's First Amendment right to read the news anonymously (particularly considering that the government could easily obtain the name and address associated with each IP address via subpoenas to the ISPs that control those IP blocks), it plainly violated the SCA's restrictions on what types of data the government could obtain using a subpoena. The subpoena was also patently overbroad, a clear fishing expedition: there's no way that the identity of every Indymedia reader of every Indymedia story was relevant to the crime being investigated by the grand jury in Indiana, whatever that crime may be. ...

... without any legal authority to back up their purported gag demand, the government ordered Ms. Clair not to reveal the existence of the subpoena, a subpoena that as already described was patently overbroad and invalid under the SCA.
Forewarned by an earlier Justice Department inquiry about where to send a subpoena, the EFF responded and the subpoena was subsequently withdrawn. The gag order  was dropped by default after the feds failed to respond to a legal challenge..

Indymedia wasn't prepared to obey the order anyway. Following EFF's advice to online service providers, the publication deliberately refuses to keep the sort of information the government wanted.

But not all online publications are so careful.

In the end, nobody's privacy was violated, but only because IndyMedia was willing and able to fight, and had the backing of a civil liberties organization. Faced with stubborn opposition and sophisticated legal resources, the government backed down.

This time.

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Saturday, October 3, 2009

FBI says: Shut your mouth

A federal appeals court may have slapped the Federal Bureau of Investigation last year for its misuse of gag orders to prevent discussion of government investigations conducted under the authority of National Security Letters, but that hasn't slowed the feds very much. According to the American Civil Liberties Union, despite a court's finding that such gag orders are constitutionally suspect and should be subject to judicial review, the FBI continues to muzzle recipients of the controversial letters, preventing them from participating in public debate over the Patriot Act and the security state.

National Security Letters are powerful tools that allow federal agents to obtain information about investigation targets from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies on their own say-so, without judicial review. Some 47,000 such letters were issued in 2005 alone, according to the Department of Justice's Office of the Inspector General (PDF). The letters don't receive much public discussion, probably because many of the recipients are also issued gag orders, forbidding them to discuss the experience.

Those gag orders were found to be constitutionally suspect exercises of "prior restraint" in a decision issued last year by the Second District U.S. Court of Appeals. In its decision, the court said:

The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity.

While the court stopped short of barring the gag orders, it did say each order should be subject to judicial review to allow the target a chance to object.

But, says the ACLU, the FBI is "continuing to unconstitutionally enforce its five-year-old gag order on a John Doe NSL recipient and his ACLU attorneys."

"The FBI's misuse of its gag power continues to prevent NSL recipients like Doe – who have the best first-hand knowledge of the FBI's use and abuse of NSL power – from participating in the Patriot Act debate in Congress," said Melissa Goodman, staff attorney with the ACLU National Security Project.

Unable to speak out about their experiences as the subjects of National Security Letters, recipients of such letters, including businesspeople and librarians, can only stand on the sidelines while the discussion is conducted in theoretical terms.

Worse, the ACLU maintains that the gag order on its John Doe client is being used to suppress the revelation that an NSL was used in a search for records it was not legally entitled to obtain.

The Senate Judiciary Committee is currently considering legislation (PDF) that could limit the use of National Security Letters.

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Thursday, June 25, 2009

Supreme Court says: Hey! Teacher! Leave those kids alone

A strip search of a high school student based on a tenuous tip that she possessed a legal painkiller -- forbidden under school rules -- violated the constitutional rights of that student and is unjustified under law. However, the school officials who ordered and conducted the search cannot be held legally liable for their actions. That's the decision of the United States Supreme Court in a much-anticipated decision (PDF) that further defines the Fourth Amendment protections available to public school students, and stands as a victory for Savana Redding, the student who waged a long battle after being humiliated by officials in Safford, Arizona.

In 2003, at the time of the search in question, Savana Redding was a 13-year-old eighth-grader at Safford Middle School in the small town of Safford, Arizona. School officials got a tenuous tip that Savana had given a friend some ibuprofen -- the stuff in Advil and Motrin. That was against school rules, so the girl was detained by Assistant Principal Kerry Wilson. She was subjected to a strip search by two female school employees. The search turned up nothing.

But the Redding family wasn't done. They fought the search through the courts, finally winning at the Ninth Circuit Court of Appeals (PDF) which ruled "A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil."

Today's Supreme Court decision, written by retiring Justice David Souter, and sparking notable dissent to its Fourth Amendment holdings only from Justice Clarence Thomas, says in part:

[T]he content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.

The court goes on to say:

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to thestudents from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

But while an intrusive search in search of a vague threat based on tentative suspicions fails to meet constitutional muster, the officials in this specific case can't be held liable for their transgressions. That's because of legal uncertainty over the extent of school officials' liability for constitutional missteps, providing officials, up until now, anyway, with conflicting guidance about just how far they can go. Because of that gray area, says the court, Wilson and company are entitled to qualified immunity for their actions.

That leaves Savana Redding with no clear path to seek redress for her abuse by school officials -- other, that is, than the knowledge that such searches are clearly off-limits in the future. Savana's fight has strengthened legal protections for students following in her footsteps.

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Monday, June 22, 2009

TSA encounter sparks lawsuit

In April, Transportation Security Administration agents detained Steve Bierfeldt at Lambert-St. Louis International Airport for no other reason than that he was carrying $4,700 in cash. The move immediately proved to be something of a public relations disaster, since the cash belonged to Rep. Ron Paul's libertarian-oriented Campaign for Liberty, of which Bierfeldt is the director of development, and the political activist used his cell phone to record the incident (mp3), including abusive language directed his way. Now the confrontation has sparked a lawsuit against the TSA, with the American Civil Liberties Union arguing Bierfeldt's case.

In the wake of Bierfeldt's detention, TSA brass made it clear they knew they had stepped in a PR mess as the confrontation immediately made the rounds of the Internet and television. On its official blog, the TSA conceded:

A Transportation Security Administration (TSA) employee and members of the St. Louis Airport Police Department can be heard on the audio recording. The tone and language used by the TSA employee was inappropriate. TSA holds its employees to the highest professional standards. TSA will continue to investigate this matter and take appropriate action.

But the TSA never backed down from the idea that carrying cash is enough reason to detail travelers or corrected its agents' refusal to answer Bierfeldt's pointed but polite questions about the legitimate scope of their authority. That suggests that the practice will continue, moderated only by the occasional apology directed to politically connected victims. That's not enough for Bierfeldt. He says:

"Most Americans would be surprised to learn that TSA considers simply carrying cash to be a basis for detention and questioning. I hope the court makes clear that my detention by TSA agents was unconstitutional and stops TSA from engaging in these unlawful searches and arrests. I do not want another innocent American to have to endure what I went through."

The ACLU is involved for the same reason -- to make sure the TSA goes beyond an embarrassed mea culpa and alters its procedures so that other travelers are no longer at risk of suspicionless detention and questioning. Larry Schwartztol, a staff attorney with the ACLU National Security Project, protests, "Mr. Bierfeldt's experience represents a troubling pattern of TSA attempting to transform its valid but limited search authority into a license to invade people's privacy in a manner that would never be accepted outside the airport context."

The ACLU's complaint (PDF) against Janet Napolitano, in her capacity as Secretary of Homeland Security, points out that the TSA's authority to search airline passengers is limited to specific threats such as guns and bombs. Suspicionless searches of people who pose no apparent danger fall outside that limited, court-recognized exception to the Fourth Amendment.

The lawsuit asks the court to declare the TSA's actions to be in violation of the Constitution and to permanently enjoin the government "from authorizing or conducting suspicionless pre-flight searches of passengers or their belongings for items other than weapons and explosives."

The suit also seeks legal costs and any other relief deemed proper by the court.

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Monday, June 1, 2009

New passport hassles at the border

A few years ago, when I rented a house in Mexico's Puerto Penasco, my friends and I crossed the border with nothing more than a flashed driver's license and answers to a couple of curt questions. As of today, that same trip requires a show of official travel documents. It's the latest step in the century-long process of closing the world's borders. Travel to America's neighbors, until recently a casual matter, now requires the permission of the state.

The whole world used to resemble a Mexican summer rental circa 2005. Actually, traveling much of the world was an even more casual matter as recently as the days of our grandparents and great-grandparents. In a 2004 article for The Globalist, David Fromkin, a professor of history and law at Boston University, wrote:

According to the historian A. J. P. Taylor, "until August 1914, a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the state." You could live anywhere you liked and as you liked. You could go to practically anywhere in the world without anyone's permission.

For the most part, you needed no passports -- and many had none. The French geographer André Siegfried traveled all around the world with no identification other than his visiting card -- not even a business card, but a personal one.

John Maynard Keynes remembered it, with wonder, as an era without exchange controls or customs barriers. You could bring anything you liked into Britain or send anything out.

Real financial freedom

You could take any amount of currency with you when you traveled, or send (or bring back) any amount of currency -- your bank did not report it to the government, as it does today.

And if you decided to invest any amount of money in almost any country abroad, there was nobody whose permission had to be asked, nor was permission needed to withdraw that investment and any profits it may have earned when you wanted to do so.

Contrast this with Friday's U.S. State Department press briefing, conducted by Deputy Assistant Secretary Bureau of Consular Affairs Brenda Sprague:

Implementation of the land and sea border crossing requirements of the Western Hemisphere Travel Initiative, better known as WHTI, begins Monday, June 1st. This is the day that Americans will need WHTI-compliant documents in order to cross land and sea borders into the United States. WHTI-compliant documents verify both the identity and citizenship of the individual in a single document, which must be presented to the border official.

Travel document requirements for air travelers were tightened back in 2007. Today's deadline means that once-casual ground transit across America's northern and southern borders, and easy puddle jumps to the island nations of the Caribbean, are things of the past. From now on, if you want to drink in Tijuana, dine in Montreal, or sun yourself in Bermuda, you'll need to carry a passport, a passport card, a trusted traveler card, or an enhanced driver’s license (Real ID-style license that's effectively a national ID card).

Government officials tell us that the world has changed, so the rules have to change with them. International terrorism, espionage, smuggling and other dangers mean that we need to abide by tighter regulations regarding when and how we can cross borders.

Somehow, oddly, those new rules always seem to transform travel from a right into a privilege.

The terrorism concern seems a valid one, but it's not as new as the security-staters pretend. An attempt to blow up the British Parliament was thwarted over 400 years ago (and has made for bonfire-lit parties every Guy Fawkes days since). The faces and terminology change over time, but not the will to do harm.

Espionage is nothing new either. Spies have been around since there was something to spy on.

And smuggling is equally ancient. Despite the hysteria of modern drug-warriors, the existence of smugglers has historically been a sure sign that a government's tariffs are too high or that it's engaged in the doomed project of trying to ban stuff that many of its subjects are determined to have.

But we're all much safer because you now need passports to return to the country from Mexico and Canada.

Well ... maybe not. After all, it was only a few months ago that a hacker drover around San Francisco, reading data from passport cards in people's pockets using a homemade scanner.

And respected security expert Bruce Schneier has written of the Trusted Traveler program, "there are so many ways for the terrorists to get trusted traveler cards that the system makes it too easy for them to avoid the hard path through security."

So maybe we're not getting much more safety in return for having to show our papers. But show them you must -- even if, like two former presidents, you were caught unaware by the changed rules.

It'll probably be a while before I rent another house in Mexico.

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Sunday, April 26, 2009

Constitutional lessons I learned at school

Earlier this month, sheriff's deputies in Harford County, Maryland, showed up in the parking lot of Harford Technical High School with drug-sniffing dogs and set the animals to sniffing for contraband. The search was random -- suspicionless and warrantless -- but hardly unique in American public schools. Across the country, students have long labored in an environment where many Fourth Amendment protections magically don't apply. Now, though, a case before the Supreme Court may help establish just how far school officials can go in pawing through the possessions -- and even the underwear -- of their youthful charges.

"Reasonableness" is the standard that guides those parking lot searches, and "reasonableness" is at issue before the Supreme Court in the case of Safford United School District No. 1, et al., v. Redding. The problem, as always, is that what strikes some school administrators and law-enforcement officers as reasonable may strike students and parents as completely insane.

Which brings us to Savana Redding.

In 2003, at the time of the search in question, Savana Redding was a 13-year-old eighth-grader at Safford Middle School in the small town of Safford, Arizona. School officials got a tenuous tip that Savana had given a friend some ibuprofen -- the stuff in Advil and Motrin. That was against school rules, so the girl was detained by Assistant Principal Kerry Wilson. She was subjected to a strip search by two female school employees. The search turned up nothing.

And Savana and her family sued.

The case worked its way up to the Ninth Circuit Court of Appeals, which examined the facts and concluded (PDF), "A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil."

We hold that Savana’s rights were clearly established at the time that Assistant Principal Wilson, in his official capacity, initiated and directed the strip search. The record before us leaves no doubt that it would have been clear to a reasonable school official in Wilson’s position that the strip search violated Savana’s constitutional rights...

The case of Redding before the Supreme Court is an appeal by the school district from the Ninth Circuit decision.

The "reasonable" standard for schools, so different from the "probable cause" standard that guides most search and seizure cases, was established in New Jersey v. T.L.O. In that case, the Supreme Court ruled that, while the Fourth Amendment does apply to school officials, they're held to a lower standard than law-enforcement officers. That's because "[a]gainst the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds." The court added, "The warrant requirement, in particular, is unsuited to the school environment."

So, if the Fourth Amendment applies, but not so much, what constitutes an acceptable search? To answer that question, the court created a new standard out of whole cloth:

[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S., at 20 ; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid.

Looking askance at what his colleagues had wrought, Justice Brennan warned in dissent:

Today's decision sanctions school officials to conduct fullscale searches on a "reasonableness" standard whose only definite content is that it is not the same test as the "probable cause" standard found in the text of the Fourth Amendment.

He was right. "Reasonableness" is in the eye of the beholder, and what we behold largely depends on whether we're in positions of authority, or among those subject to authority. That's how we ended up with K-9 patrols in school parking lots and teenage girls shaking out their bras during searches for headache tablets.

Loose guidelines for searches have actually been institutionalized. The Harford County suspicionless searches are conducted well within the advice formally provided by the U.S. Department of Education.

If drug-sniffing dogs can be unleashed to alert with a "a bite, bark or scratch" on any car that contains a roach (or a hamburger wrapper), it's not that far a step to pawing through a student's underwear based on a vague assertion by another student.

The Supreme Court itself, in another case involving the power of school officials, once warned:

That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

That's a fine sentiment. Too bad the court didn't hold it to heart in T.L.O. We have now raised just about two generations of public school students in an environment in which vague standards and meaningless restrictions on officials' power are considered "reasonable." Those students are now adults, applying the lessons they learned in school to the world around them.

There's no guarantee that the Supreme Court will set tougher standards in Redding. It may set no standards at all, and side-step the issue entirely by granting the Safford officials qualified immunity from lawsuits without touching on the constitutional questions.

But Redding is the best chance in a long time to draw a line that firmly establishes some indignities committed by state officials upon public school students as beyond the pale. With school officials increasingly conducting random, warrantless searches of their charges, we need to know whether our schools are subject to constitutional protections, or whether they are just little police states.

Really, if it's acceptable to strip-search Savana Redding, there's no place else to go.

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Thursday, April 23, 2009

Car search decision makes driving look better than ever

If you're unlucky enough to get arrested, the police can only use your handcuffed plight as an excuse to search your car and its contents if you're close enough to touch the thing, or if they reasonably believe evidence of your crime might be rattling around the coin tray or the glove compartment. That's the gist of yesterday's U.S. Supreme Court decision returning an iota of privacy protection to the vehicles in which we spend so much of our time -- a small shield against state power that largely sets automobiles apart from the competition.

The be-robed nine's decision in Arizona v. Gant (PDF) limited the scope of a 1981 ruling in New York v. Belton that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."

In Gant, Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Antonin Scalia, upheld an earlier Arizona Supreme Court ruling that a warrantless search of Gant's car after he had already been arrested for driving with a suspended license was unreasonable. Handcuffed and confined to the back of a police car, Gant had no access to any weapons in his car, or to any evidence of his crime that he might destroy. As a result, say Stevens and company, police had no good reason to bypass the process of getting a warrnt. The cocaine discovered during the warrantless search, therefore, can't be used as evidence against him.

Writing for the majority, Stevens notes that the court accepted the case to clarify the law about vehicle searches. He quotes Justice O'Connor's observation in Thornton that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.”

Basically, in most jurisdictions, vehicles have been treated in recent years as rolling exceptions to the Fourth Amendment.

The Arizona Supreme Court decision was a rare break from the prevailing expansive application of the search rule established in Belton, and gave the U.S. Supreme Court a chance to revive search and seizure protections on the roads.

Stevens and company take the opportunity to endorse the Arizona interpretation, with Stevens writing:

[W]e reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” ... In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.

It's noteworthy that the justices themselves acknowledge that this decision is a rare one in which search and seizure protections are expanded rather than contracted for occupants of automobiles. They took the case for that very reason.

As a result, if you're unlucky enough to be arrested for a traffic violation, it's not carte blanche for the cops to go pawing through your backpack or purse for stray joints or an unlicensed pistol.

Contrast this decision with the growing scope accorded to police to conduct suspicionless searches of passengers and their belongings on airplanes, buses, trains and in urban mass transit systems like the New York City subway. All airline passengers are, of course, subject to sometimes humilating inspections of their persons and property, as well as limitations on what they can carry. Passengers on Amtrak and on subway systems in some cities must also submit to random searches or else abandon hopes of travel. Technically, passengers on private bus lines can refuse police requests to search luggage (common in some areas), but few people know that and fewer still are willing to stare down a cop while standing on the Constitution.

With photo ID requirements now the rule for Amtrak, It's increasingly difficult to even travel anonymously, without leaving an electronic trail indicating your whereabouts.

Automobiles then, imperfectly shielded though they are from intrusive officials, provide the best degree of privacy and protection from unreasonable search and seizure available to travelers. Yesterday's decision reinforces that special status for cars and trucks as relatively dignified means of transportation for people who don't care to expose their lives on demand to the authorities.

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Friday, March 27, 2009

Concern over highway spy-eyes goes national

The Wall Street Journal clues in to a concern near and dear to our Arizona hearts: traffic cameras.
Once a rarity, traffic cameras are filming away across the country. And they're not just focusing their sights on red-light runners. The latest technology includes cameras that keep tabs on highways to catch speeders in the act and infrared license-plate readers that nab ticket and tax scofflaws.

Drivers -- many accusing law enforcement of using spy tactics to trap unsuspecting citizens -- are fighting back with everything from pick axes to camera-blocking Santa Clauses. They're moving beyond radar detectors and CB radios to wage their own tech war against detection, using sprays that promise to blur license numbers and Web sites that plot the cameras' locations and offer tips to beat them.
That's an issue I've given a nod or two in the past myself, of course.

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Friday, February 13, 2009

Brits show Yanks how a police state is done

In years to come, those of us mourning the erosion of liberty in America will probably turn to each other from time to time and sigh, "It could be worse; we could be British." Actually, we can do that right now. Maybe it's something in the water over there, but the government of the UK seems to have watched the former Bush administration's abuses of due process and privacy (and the Obama administration's "nothing to see here" attitude toward maintaining much of the same), sneered "pikers," and set about to show the world how a democracy is really turned into a police state.

Things like this rarely happen over night, and sure enough, Britain's descent into the world of V for Vendetta has been building for a long time. There have been creeping restrictions on free speech, closed-circuit TV cameras on every corner, national ID cards on the way, and the like for many years.

But over the past two weeks ... Well, let's just look, shall we?

The Daily Mail reports:

A secret police intelligence unit has been set up to spy on Left-wing and Right-wing political groups.

The Confidential Intelligence Unit (CIU) has the power to operate across the UK and will mount surveillance and run informers on ‘domestic extremists’.

Its job is to build up a detailed picture of radical campaigners.

Targets will include environmental groups involved in direct action such as Plane Stupid, whose supporters invaded the runway at Stansted Airport in December.

The unit also aims to identify the ring-leaders behind violent demonstrations such as the recent anti-Israel protests in London, and to infiltrate neo-Nazi groups, animal liberation groups and organisations behind unlawful industrial action such as secondary picketing.

The paper based its report on "[a]n internal police job advertisement," and it didn't take that much effort to find an expired (but still cached) relevant job listing at

Head of Confidential Intelligence Unit (CIU) National Public Order Intelligence Unit (NPOIU
City London
Career Level Senior Manager / Head of Department
Industry Public Sector/Public Authority, Local Government, State/Internal Security, National Security

Job Description Organisation: ACPO Business Area: Terrorism and Allied Matters Job Title: Head of Confidential Intelligence Unit (CIU) National Public Order Intelligence Unit (NPOIU) Rank: Detective Chief Inspector Reports to: D/Supt Head of NPOIU Salary: Chief Inspector range + allowances Type: Full time police officer Location: London Main purpose of Role: To manage the covert intelligence function for domestic extremism, and the confidential intelligence unit. The post carries membership of NPOIU Senior Management Team and you will be expected to make a significant contribution to the overall performance of the police service of England and Wales and the

Rather chillingly, The Daily Mail reports,"The CIU will also use legal proceedings to prevent details of its operations being made public."

Britain, like the U.S. has a history of such domestic spying, and it always ends badly. Intelligence units tasked with watching terrorists inevitably include mere radicals among their targets, then simple political protesters and, ultimately, pretty much anybody who says something critical about the government. Among the past targets in the UK of domestic surveillance were Ewan MacColl, a Pete Seeger-ish folk singer with communist sympathies, John Lennon, and the band UB40.

The new British unit actually appears to be starting out with that far-reaching mission.

Then there's The Daily Telegraph's report that pending legislation would allow just about every governing body in the UK to see who is communicating with whom, and how often.

Towns halls, along with police, security services and other public bodies will be able to view "communications" details of any one suspected of crime.

But critics fear the move will simply pave the way for authorities to spy on millions of citizens and taxpayers. ...

Bodies will not be allowed to see the content of communications but will have access to data such as who was called or texted and when or which websites were visited. ...

Since 2007, phone companies have had to retain data about calls for 12 months and hand it over to more than 650 public bodies.

Parliament approved the powers, described as a vital tool against terrorism, under the Regulation of Investigatory Powers Act 2000.

But under the latest order that is to be extended to all communications, including the internet.

The move appears to be a revival of an effort to extend electronic surveillance powers that was shelved amidst public fury back in 2002. At the time, press reports described the retreat as "a humiliating climbdown," but the state is nothing if not patient.

Speculation at the time was that the government was dissuaded as much by technical hurdles as by widespread resistance. The new bill suggests that technology has advanced enough in seven years to make the surveillance scheme more feasible.

And electronic surveillance is at least as popular with British authorities as with their American counterparts. The European Court of Human Rights ruled last summer that the UK government went too far with its years-long wiretapping of civil rights groups.

If you were planning to keep tabs on the domestic snoops and wiretappers in Britain, don't plan on including photographs in your files. Taking snapshots of police officers is about to become a serious crime. According to the British Journal of Photography:

Set to become law on 16 February, the Counter-Terrorism Act 2008 amends the Terrorism Act 2000 regarding offences relating to information about members of armed forces, a member of the intelligence services, or a police officer.

The new set of rules, under section 76 of the 2008 Act and section 58A of the 2000 Act, will target anyone who 'elicits or attempts to elicit information about [members of armed forces] … which is of a kind likely to be useful to a person committing or preparing an act of terrorism'.

A person found guilty of this offence could be liable to imprisonment for up to 10 years, and to a fine.

The law is expected to increase the anti-terrorism powers used today by police officers to stop photographers, including press photographers, from taking pictures in public places. 'Who is to say that police officers won’t abuse these powers,' asks freelance photographer Justin Tallis, who was threatened by an officer last week.

The Home Office doesn't deny the possible application of the new law to photographers, saying that interpretation will be up to police and the courts.

Even before the new law, photographers have been challenged in Britain (as in America) by police officers unhappy about being the target of a lens. Last year, photographer Lawrence Looi was forced to delete images from his memory card by a police sergeant, and Andrew Carter was actually dragged off to jail for a similar "offense." Such incidents are bound to increase when police officers can point to new legal authority.

I'd like to say that's it, but it's not. There's the small matter os the creeping national ID program in the UK. And then Dutch rabble-rousing politician Geert Wilders was detained at Heathrow airport before being ejected from the country for his political views.

After years of depressing civil liberties violations here in the United States, it's astonishing to be able to say that the UK makes America look good.

Just what kind of country is the British government trying to create?

And is it time to break out those Guy Fawkes masks?

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Wednesday, February 4, 2009

How long before this is a big business in Tijuana?

In an astonishing display of the vulnerability of modern identification technology, Chris Paget, an "ethical hacker," assembled $250 worth of electronic equipment that allowed him to scan and copy the information stored on radio-frequency identification (RFID) chips embedded in new passport cards (but not the traditional passport books), as well as in some enhanced drivers' licenses, while he drove around San Francisco. According to Paget, whose 20-minute experiment was captured on video by The Register, it would be "trivial to program" blank tags with the skimmed identification numbers -- a key part of the process of creating counterfeit cards.

Paget was able to scan passport cards from a moving car since the embedded RFID chips broadcast their information. This is a feature the State Department advertises as a convenience, saying, "With RFID technology, Customs and Border Protection inspectors will be able to access photographs and other biographical information stored in secure government databases before the traveler reaches the inspection station."

The State Department emphasizes that the passport card contains no sensitive data itself, only "a unique number linking the card to a secure database maintained by DHS and State." You need to have access to that database to pull up more information using the identifying number.

The State Department also issues sleeves with the passport cards that block their transmissions. That the sleeves are not universally used is evidenced by the two passport cards Paget scanned during his brief drive.

Paget also points out:

If you combine the reader that I've got, at a chokepoint like a doorway, with another kind of RFID reader, one that reads credit cards say, you can correlate the ID number that you get from the passport card with the identity that you can retrieve from the credit cards. So instead of just tracking a passport card around the city, you can then track an actual identity around the city."

Similar RFIDs are beginning to appear in enhanced drivers' licenses, such as those issued by Washington State. As they become pervasive, it's possible that such identification could make it possible for police to determine the identities of attendees at, for instance, demonstrations and rallies simply by scanning the crowd and cross-referencing the skimmed identifying numbers with relevant databases.

RFID-embedded ID could also exacerbate concerns about anonymous travel that have already been raised by electronic toll-paying systems like FasTrak and E-ZPass. Travel patterns recorded by the toll systems have become something of a hot commodity in divorce cases and criminal investigations. Putting a traceable RFID in every pocket has the potential to make everybody a blip on somebody's radar screen.

Of course, Paget's experiment raises the likelihood that some of those blips won't be who they claim to be.

Below is the video of Chris Paget's RFID-skimming experiment.

Last year, a joint research project by the University of Washington and RSA Labs uncovered exactly the sort of vulnerabilities in passport cards and enhanced drivers' licenses that were exploited in Paget's experiment. A FAQ for that effort states:

The major risk, in our view, is that of clandestine device cloning. An attacker can in principle harvest the data from a Passport Card or EDL and create an identity document that transmits identical information (even if it does not appear identical upon inspection). If border control agents do not exercise sufficient vigilance in the passenger screening process, e.g., physical inspection of all cards, the result could be a heightened risk of passenger impersonation.

That risk appears to remain in place.

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Friday, January 23, 2009

I'm sure I'm on some kind of list now

This morning I did a brief (audio-only) segment with Russia Today, an English-language television news operation that broadcasts world-wide. The channel is state-owned and puts Moscow's spin on the day's news, but I figure that can't be any worse than last year's Fox News or this year's MSNBC.

The topic was wiretapping -- in particular, recent revelations about the NSA's eager eavesdropping schemes when it comes to Americans, with a super-special emphasis on journalists.

Not surprisingly, we didn't get into the Russian government's own enthusiastic endeavors in that realm, but it was fun to be able to say my piece. I'll have to wait and see how much gets on the air.


Thursday, January 15, 2009

A warrant? Sure we have a warrant ... Don't we?

The Fourth Amendment allows police officers to conduct searches if they have a warrant based on probable cause, right? But what if the cops only think they have a warrant, but it doesn't actually exist? Well, that's all right, says the Supreme Court. The occasional inadvertent Bill of Rights boo-boo shouldn't stand as an impediment to the enforcement of the law.

The ruling, penned by Chief Justice John Roberts, came in the case of Herring v. United States (PDF). Bennie Dean Herring had driven to the sheriff's department in Coffee County, Alabama, to retrieve something from his impounded truck. Since Herring was apparently a regular acquaintance of local law enforcement, officials ran a check for outstanding warrants. One popped up from neighboring Dale County. Herring was searched, revealing methamphetamine and a gun, which the convicted felon wasn't allowed to possess.

But the warrant had been recalled five months earlier -- an error that was revealed only after Herring's pockets were turned inside out. Its listing in the computer database was a mistake. Police actually had no legal authority to stop Herring. Not surprisingly, his attorney made an issue of the non-warrant.

The matter worked its way up to the highest court, where Roberts and company were unimpressed by a (however unintentional) warrantless search.

"The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable— does not necessarily mean that the exclusionary rule applies," Roberts wrote. Later, he continued, "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."

Petitioner’s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not “go free because the constable has blundered.”

Roberts's reasoning that the exclusionary rule has meaning only so far as it can deter deliberate misconduct is clear, but it seems remarkably naive coming from a jurist with extensive knowledge of the criminal justice system. It assumes that police are always diligent and don't respond to perverse incentives. In this case, the court has created an incentive for police to conduct warrantless searches so long as they can credibly claim that they thought that they had warrants because of poor recordkeeping. That is, the Herring ruling rewards sloppy and inaccurate records that over-report the number of warrants that are in play.

Without even engaging in overt fraud, police can put this ruling to bad use just by using sloppy databases -- especially if they're sloppy in the "right" way.

Roberts was joined in his ruling by Justices Scalia, Kennedy, Thomas and Alito.

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Tuesday, December 23, 2008

Merry Christmas, surveillance state

In Tempe, Arizona, a merry band of liberty-loving Santas gift-wrap speed cameras -- with special attention to the lenses.

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Tuesday, December 16, 2008

Federal court gags on gag orders

National security letters have been a stain upon the U.S. criminal justice system for several years now, permitting, as they do, federal investigators to go on a fishing expedition through private records -- and then forbidding the recipients of the letters to publicly complain about the treatment they've received. Now, after a decision by the U.S. Court of Appeals for the Second Circuit, the use of the letters will finally be subject to some judicial oversight.

Some oversight, implying a bit of restraint.

In a 2007 report (PDF) revealing widespread abuses of National Security Letters, the Department of Justice's Office of the Inspector General described the documents:

Four federal statutes contain five specific provisions authorizing the Federal Bureau of Investigation (FBI) to issue national security letters (NSLs) to obtain information from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies. In these letters, the FBI can direct third parties to to provide customer account information and transactional records, such as telephone toll billing records.

Before the Patriot Act, NSLs could be used only to gain information "involving a foreign power or an agent of a foreign power." The Patriot Act allowed the use of NSLs in pretty much any case where the words "espionage" or "international terrorism" were invoked. By 2005, 53% of NSLs involved Americans rather than foreigners.

And invoked they have been.

The Inspector General's report points out that the use of these letters soared from 8,500 in 2000 (before the Patriot Act) to 39,000 in 2003, 56,000 in 2004, and 47,000 in 2005. Each letter may contain more than one request for information, so even those figures understate the matter.

And the FBI apparently engaged in poor recordkeeping. The report dug through the files and found 17% more NSLs than had been officially recorded.

This is all important because NSLs allow federal agents to engage into far-reaching probes through sensitive private information, on the say-so of federal law enforcement officers, without judicial review.

And if you're an ISP or a phone company and don't like being on the receiving end of an NSL, tough luck. You can't complain in public about the letter, inform the ultimate subject of the investigation or do much at all but fume -- in private -- about the situation. The gag order, like the NSL, is on the say-so of the agents conducting the investigation.

In the words of Title 18, Section 2709(c):

... no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

Until now.

Last year, a federal district court judge found the gag order provisions of the national security letters to be offensive to the First Amendment and to separation-of-powers language in the Constitution. That decision was appealed.

The Second District U.S. Court of Appeals agreed to a large extent (PDF), although it was much more deferential to the government's "national security" mantra than was the lower court. The appeals court noted that the gag order served as a constitutionally suspect "prior restraint" on speech, even if it's one that operates in a specific area of speech.

The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity.

The court also dismissed the government's argument that judges should simply accept FBI officials' assurances that national security would be at stake if NSL recipients were allowed to air their complaints in public, saying that such a role would reduce judges to "petty functionaries."

Ultimately, the court let the NSL gag orders stand, but required that the FBI initiate judicial review of each order to determine if it's justifiable and to give the recipient an opportunity to contest the order in court. This is a much less sweeping decision than the one reached in the lower court, but it's a real challenge to the "just trust us" security state philosophy that has prevailed through the Bush years.

After all these years and tens of thousands of national security letters, it's about time that somebody got a chance to take a look at what the investigators have been doing under cover of legally imposed silence.

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Friday, November 21, 2008

Will Obama take Janet Napolitano off Arizona's hands?

Secretary of Homeland Security is a lightning rod position, charged as it is with harassing air travelers, chasing brown people across the border and preventing hurricanes from being inconvenient. That said, Janet Napolitano, the governor of Arizona, is a perfectly competent choice for the person tasked to tell us if today's threat level is "orange" or "mauve" and to, more seriously, shake out some of the organizational difficulties at DHS. But she's unlikely to represent any sort of softening in policy at the department in terms of immigration or civil liberties. And let's hope that somebody other than her has control of the checkbook.

By Arizona standards, Napolitano is a moderate on immigration. That means she's capable of vetoing a bill requiring her to dispatch National Guard troops to monitor the state's southern border while, at the same time, dispatching National Guard troops to monitor the state's southern border of her own accord. Napolitano eventually persuaded the federal government to provide funding for about 2,400 soldiers. She also signed into law a measure that threatens to strip state businesses of their licenses to operate if they're caught hiring undocumented workers more than once.

This nails down the moderate position in a state where high-profile Maricopa County Sheriff Joe Arpaio, a cartoonish bully, has gone so far as to raid city hall in Mesa in a search for illegal immigrants. Napolitano has gone head-to-head with Arpaio in battles that are roughly equally about philosophy and ego, and it will be interesting to see if she continues that feud from a D.C. perch.

In civil liberties circles, Janet Napolitano gets some credit for formalizing Arizona's rebellion against the federal "Real ID" scheme to convert state-issued drivers licenses into standardized national ID cards. While she did sign the bill blocking the state from complying with the federal ID law, that was only after it became clear that her own "3-in-1" ID plan for bringing Arizona into compliance with Real ID was a no-go with the legislature and with state voters.

Even in putting her name on Arizona's pro-privacy rebellion, Napolitano framed her support in budgetary terms, saying:

My support of the Real ID Act is, and has always been, contingent upon adequate federal funding. Absent that, the Real ID Act becomes just another unfunded federal mandate.

Napolitano's rise to head Homeland Security may mean the end of Real ID -- or it may mean that she'll continue the push for a national ID card, but this time with more federal dollars attached.

Speaking of federal dollars ... Money management just might become an issue if Janet Napolitano is approved for the Homeland Security post. A new report (PDF) from the Government Accountability Office reveals that spending oversight is a shambles at DHS. "15 of the 57 DHS major investments reviewed by GAO were designated by the Office of Management and Budget as poorly planned and by DHS as poorly performing."

But Napolitano won't just leave fond memories behind in Arizona -- she's washing her hands of a financial catastrophe. The state's budget, already bloated at $9.9 billion, is conservatively projected to suffer a $1.2 billion deficit this year. That's on top of a $2 billion shortfall passed forward from last year. Tom Jenney of Americans for Prosperity, an organization that has been tough on the governor's financial habits, flat-out says, "[Napolitano is] going to get off the Titanic as it slips under the water. I think Obama’s got a life boat for her, and if I were her, I’d probably get off the ship."

Of course, fiscal irresponsibility will be no more of a change of pace in D.C. than Napolitano's lines on immigration and privacy.

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Monday, October 20, 2008

Bare it all for the fine folks at the TSA

I've written before about the whole-body imaging scanners finding their way into the nation's airports. A relatively new innovation, they're theoretically being implemented in a way that give airline passengers a choice between ... well ... Honestly, a choice between offering TSA agents a peep show or a grope session at airport security checkpoints.

Hey, everybody wins -- as long as you're in uniform.

But even that unpleasant dilemma may be overstating the options available to travelers. Robyn Blumner, a columnist for the St. Petersburg Times, describes her experience returning to the U.S. from Europe through the Dallas-Fort Worth Airport:

The TSA agent hadn't bothered to explain that I had the right to decline and submit to a pat-down by a female agent instead — a choice I would have taken.

Yet [Sari Koshetz, a spokeswoman for the TSA] insists that being given that choice verbally is protocol.

When I objected to having had a photo taken under my clothes, the agent snapped "it's not a nude picture" but then couldn't explain what it is.

Koshetz claims that all security officers "understand" the technology and are "able to explain it."

Either I got the most incompetent TSA agent of the bunch, or there's a gaping chasm between official claims and reality.

The image taken by the millimeter wave scanners and revealed to TSA agents (you can see an example above) isn't exactly the stuff that porn is made of. Well, it's actually not all that different from 19th-century naughty photographs, but it's not the stuff that modern porn is made of. But the images leave nothing to the imagination. If you cling to any vestigial thoughts of privacy and dignity as you enter a U.S. airport these days, whole-body scanners are certain to strip them from you -- along with your clothes.

Concerns about being bared to the skin are only exacerbated, Blumner points out, by revelations that NSA technicians -- a more elite group than the TSA personnel drowsing their way through each workday at the airport -- entertained themselves by listening in on phone sex and romantic calls between overseas military personnel, journalists and aid workers and their loved ones at home. As one NSA whistleblower told ABC News:

"Hey, check this out," Faulk says he would be told, "there's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out. It would be some colonel making pillow talk and we would say, 'Wow, this was crazy'," Faulk told ABC News.

And in Britain, that much-surveilled country, government workers and police have repeatedly been caught using that nation's extensive network of security cameras for entertainment purposes. In one incident in Merseyside, technicians directed a camera intended to monitor streets to peer through the windows of a woman's apartment. Camera personnel in Tyneside were caught trading nude images they'd captured in local pubs.

If NSA techs can get off on pillow talk, and British cops on candid shower shots, the idea that TSA agents aren't going to have a little fun with the naked images of passengers streaming before them is preposterous.

Look, all powers are abused. All of them. The only way to approach any expansion of state authority and additions to its armory of tools and toys is to assume that they'll all be misused in the most foolish, most egregious way conceivable.

And even then, some enterprising flunkies will develop even more damaging applications than you could ever imagine.

"You can trust us, we're professionals," should be greeted with a restrained giggle and an expectation of trouble to come.

Along those lines, expect Robyn Blumner's ordeal to be a glimpse of the future.

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Friday, October 10, 2008

Same old spying, different day

The once super-secret National Security Agency has again been caught spying on the international phone calls of Americans. An ABC report anticipating the release of NSA expert James Bamford's latest book about the agency says that "US military officers, American journalists and American aid workers were routinely intercepted" and their telephone conversations recorded by the NSA.

"These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.

Kinne described the contents of the calls as "personal, private things with Americans who are not in any way, shape or form associated with anything to do with terrorism."

While some important information, including planned terrorist attacks, was scooped up, most of the intercepted phone calls were banal, and personal conversations -- including phone sex -- became entertainment fodder for the intelligence workers.

As disturbing as these allegations are, it should be noted that they're not exactly new. In fact, the interceptions detailed by Kinne and fellow whistleblower David Murfee Faulk bring back talk of the Echelon surveillance system reported by several journalists in the 1990s. Echelon was (or is) reportedly a joint project of intelligence agencies in the U.S., Australia, Canada, New Zealand and the U.K. It is said to have existed for several decades, with increasing sophistication over that time, and to be able, by the end of the 1990s, to intercept email, faxes, telephone calls and other electronic communications.

U.S. intelligence officials publicly denied the ability to conduct such surveillance, while wishing the capability existed, and some technical experts were doubtful that the government had the ability to do anything as far-reaching as what critics claimed. But the European Parliament issued a lengthy report (PDF) in 2001 concluding "[t]hat a global system for intercepting communications exists, operating by means of cooperation proportionate to their capabilities among the USA, the UK, Canada, Australia and New Zealand under the UKUSA Agreement, is no longer in doubt." The report found that Echelon's abilities had probably been exaggerated in the press, but that it was an extensive system that was being used for, among other purposes, industrial espionage.

The report also assumed that France and Russia had similar capabilities of their own.

During the 1990s, the niece of a U.S. Navy admiral told me of applying for a job at the NSA. She claims that during the course of an interview, the people conducting the meeting played back a recording of an international phone call she had made some time before. Her impression was that they were showing off a bit because of her family connection. She was suitably impressed.

The decades-long existence of both the intent and the ability of the NSA to intercept Americans' international comunications (and domestic communications too, limited only by the uncertain constraints of the law) makes it clear that this is no aberration to be dismissed by taking a broom to the White House. Presidents and their appointees from both parties have overseen intelligence agencies engaged in such surveillance for as long as it has been possible.

That intelligence gathering of some sort is a necessary evil is clear -- especially post-9/11. Whistleblower David Faulk told ABC, "IED's were disarmed before they exploded, that people who were intending to harm US forces were captured ahead of time."

But any power that can be used can also be abused. We should be glad that the abuses reported to-date have been on the level of fraternity pranks, and not official policy.

Of course, those are the reported abuses. We don't know what else is going on behind the scenes.

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Thursday, September 11, 2008

Euro-snoops put U.S. to shame

Catch more news and commentary about personal freedom at
Civil Liberties Examiner.

The U.S. government gets rapped frequently for its growing tendency to use wiretaps, engage in surveillance and compile information about people who are doing nothing more than exercising their right to criticize political leaders -- or even people who are just going about their daily, apolitical business. Especially since 9/11, but even for decades preceding that event, government officials have engaged in a disturbing frenzy of nosiness about the communications, activities and opinions of private citizens.

But, in certain circles, it's become the norm to assume that the U.S. government is the worst of the worst. That it practices control-freakery to an extent that shocks, shocks our friends overseas. Would the sophisticated French ever engage in such abusive shenanigans.

Well, yes, they would. And so would the Germans, and the Dutch, and ...

This week come reports that French President Nicolas Sarkozy is backing off a bit from plans for a new security database called EDVIGE. Says the BBC:

Civil liberties groups complained it would turn France into a police state, spying on its own citizens.

The new system, known by its acronym EDVIGE, was set up to allow security officials to monitor anyone considered a possible threat to public order.

But there were also concerns the database could collate personal information, such as sexual orientation.

EDVIGE doesn't actually come out of the blue -- it's just an improvement on a database that's already in place. Still, the French government's step-down is a rare victory on a continent where state officials traditionally do as much snooping as they please (although it's not clear whether the EDVIGE retreat also applies to the less-well-known CRISTINA database, which is equally intrusive).

Addressing France's peculiar history, Charles Bremner of the Times of London wrote last year:

Scandal over the antics of police spies are a regular feature of French elections. The air is once again thick with malicious leaks and charges of dirty tricks by the Renseignements Généraux, the police intelligence service. Unusually, though, this time the boss of the shadowy RG has emerged to explain why France needs to keep secret tabs on its citizens.

Let's look at this old exception française: the way that France considers it normal that 4,000 agents and many more thousands of part-time informers, are busy in their midst reporting on them. Even in these times of "homeland security" (awful expression) and wars on terror, no other democracy runs a domestic spying service on this scale and few would tolerate it.

But France is hardly the only transgressor. In 2006, Slate's Eric Weiner reported:

The three worst offenders are not countries you would suspect of playing fast and loose with civil liberties: Britain, Italy, and the Netherlands. Italian officials conduct tens of thousands of wiretaps each year. Technically, judicial approval is needed but since judges in Italy are "investigative," meaning they act more like our prosecutors, there is essentially no check on law enforcement's ability to eavesdrop. ...

The Netherlands has the highest rate of wiretapping of any European country—a surprising fact, given the country's reputation for cozy coffee bars, not invasive police tactics. Dutch police can tap any phone they like, so long as the crime under investigation carries at least a three-year jail term.

This isn't old news, either. In June, the Swedish government approved a new law permiiting surveillance of e-mails and phone calls that cross the country's borders. And government officials filed a complaint against a blogger who published documents revealing that Swedish authorities have long engaged in domestic surveillance.

And Germany, this summer, played host to large street protests against the growing surveillance of everyday life by state officials.

A new report (PDF) from Statewatch, an organization that monitors civil liberties in Europe, points out:

In 2006 a Directive on the mandatory retention of all communications data across the EU was adopted. Service providers are obliged to keep and give agencies access to records of all phone-calls, mobile phone calls (and their location), faxes, e-mails and internet usage. This year most EU states that had not done so are implementing this at national level. In short, records of all communications by everyone in the EU are held and can be accessed by agencies in connection with “serious crime, as defined by each Member State in its national law” which varies from member states to member state or for suspicion of a “serious crime”.

In 2004 a Regulation on EU passports required the taking of fingerprints (biometrics) from all applying for one. Again there was a time-lag in the implementation at national level. But from 2009 onwards millions of people across the EU will have to attend special centres to be interviewed (to prove who they are) then compulsorily finger-printed.

The finger-printing of everyone applying for a visa to visit the EU from third countries is already underway and fingerprinting of resident third country nationals has been agreed. Discussions are underway on extending the taking of fingerprints for national ID cards as these are used for travel within the Schengen area.

It is sobering to note that the mass surveillance of all telecommunications and mass fingerprinting of all are two proposals that have not been proposed in the USA – thus the EU is set to become the most surveilled place in the world.

None of this should be taken as an excuse for the U.S. government's compulsive snoopiness. But it's just an unfortunate truth that America's domestic spooks are boldly going down a path Europeans blazed a long time ago.


Thursday, September 4, 2008

I'm not myself today, or, manufacturing a new you

Over at Wired, Bruce Schneier has an interesting piece that starts by musing how a foreign intelligence agency could have entered the United States in the 1980s, created a crop of phony, but perfectly documented identities, and now have a "crop" of mature, but manufactured, lives for agents to don like a suit of clothes.

So far, it sounds like the plot for an espionage novel.

But he then goes on to make the interesting point that such a tactic is possible because the records we leave in filing cabinets and databases have become more important than our physical selves as evidence of who we "really" are.

The point isn't to create another movie plot threat, but to point out the central role that data has taken on in our lives. Previously, I've said that we all have a data shadow that follows us around, and that more and more institutions interact with our data shadows instead of with us. We only intersect with our data shadows once in a while -- when we apply for a driver's license or passport, for example -- and those interactions are authenticated by older, less-secure interactions. The rest of the world assumes that our photo IDs glue us to our data shadows, ignoring the rather flimsy connection between us and our plastic cards. (And, no, REAL-ID won't help.)

I think he's right and, for good and ill, this is the major weakness of the security state into which our country is being transformed.

Proof of identity, once upon a time, meant that credible people could vouch for your name, credentials and character. Personal contacts were important, as were letters of introduction and letters of credit.

These days, though, an identity check means squinting at a bad photograph on a piece of plastic and, maybe, making sure the data on thet piece of plastic squares with an entry in a database. In a few years, the check will also include matching thumbrints, retina scans and other biometric data.

But the check is only as reliable as the information in the database. If files get corrupted or deleted, you can't prove who you are. Of equal importance, bogus data, once in the database, is holy writ -- fully acceptable as "proof" that you are who you say you are.

Manufacturing false ID has long been a lucrative business, for every use from buying beer underage to allowing illegal immigrants to seek employment. Modern technology has put effective forgery within easy reach. But most such efforts produce nothing more than cards unconnected to matching entries in databases. As such they're relatively easy to bust.

Better IDs are those that are actually issued by the state based on false information. When I was in college I ahem knew people who altered their birth certificates and then applied for non-driving proof-of-age IDs from the Department of Motor Vehicles. Once issued, these were solid gold, since they could survive the most thorough check.There was no risk to using them and no risk to accepting them since, as far as the government was concerned, they were real. The fact that they essentially manufactured new identities that didn't square with reality was irrelevant. A new reality was created.

Not surprisingly, some government employees have learned that they can make a nice income on the side by selling their access to identification databases and creating entries that back official IDs under bogus names.

As the United States moves increasingly toward tracking movement, employment status, tax compliance and the like with government databases like E-Verify, the money to be made by corrupting or manufacturing data entries is going to soar. Who you are in the system will increasingly matter much more than who you are in your skin.

The coming security state may be more annoying and intrusive than any that has gone before. But it offers no guarantees that the people you're talking to are who they say they are. And because of its near-total faith in whatever data is retrieved by a computer, it may actually offer small opportunities for those who can exploit the system's weaknesses to carve out greater freedom than the state ever intended.

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