Collaborators in a civil rights violation

Via Radley Balko comes the tale of Tunde Clement, a New York City resident stopped in the Albany, New York, bus terminal by police for no good reason, subject to a brutal search, and then billed for the cost of his own abuse.

He was quickly handcuffed and falsely arrested. He was taken to a station to be strip-searched and then to a hospital, where doctors forcibly sedated him with a cocktail of powerful drugs, including one that clouded his memory of the incident.

A camera was inserted in his rectum, he was forced to vomit and his blood and urine were tested for drugs and alcohol. Scans of his digestive system were performed using X-ray machines, according to hospital records obtained by the Times Union.

The search, conducted without a search warrant, came up empty.

In all, Clement spent more than 10 hours in custody before being released with nothing more than an appearance ticket for resisting arrest -- a charge that was later dismissed.

Clement was billed $6,792 by the Albany Medical Center Hospital for the cost of his forcible drugging and ... well ... anal rape.

The egregious misconduct by Albany County Sheriff's Department deputies in the case is obvious. The Times-Union article rightly expends much ink on the history of abusive and, apparently, racially motivated searches conducted by police at that bus terminal.

But what about the doctors and nurses who voluntarily participated in the violation of this man's rights?

[J]ust before noon, Clement -- fully shackled and still in custody for a minor offense -- shuffled into Albany Medical Center Hospital with a phalanx of cops at his side, hospital records show.

He was locked in a gurney and listened anxiously as a group of doctors and nurses debated the cops' request to have Clement forcibly sedated so his body could be searched for drugs.

The doctors asked Clement to sign a consent form, but he refused.

The medical records show one of the doctors placed a call to the hospital's risk management director to assess the liability exposure of what they were about to do.

In some cases, prisoners or people under arrest can be forcibly sedated without a court order if they are in imminent danger, such as when a bag of drugs bursts open inside them and they begin to have a seizure or fall unconscious. But the hospital's records indicate Clement was behaving normally and showed no signs of any medical emergency.

"Spoke to Shirley of Risk Management," a physician wrote, documenting the medical decision-making that afternoon. "OK to treat, sedate & remove FOB (foreign object body) against (patient's) will despite his personal refusal."

Note that police had no search warrant. Even if a warrant had been presented, medical personnel are under no obligation to cooperate with police in inflicting such an ordeal on a prisoner. The article refers to one San Francisco hospital's refusal to cooperate with police, and I quickly found another such incident from Davidson County, Tennessee in which doctors balked at even drawing blood without the subject's approval. There seems to be plenty of precedent for declining to forcibly administer powerful drugs and then insert equipment into an unwilling patient's rectum without a really good reason.

So what excuse do the medical personnel at Albany Medical Center Hospital have for committing battery upon Tunde Clement?

The hospital administration seems to have clammed up, but I can think of two different rationales for the actions of the doctors and nurses at that scene.

Most or all of the people present may have been the kind of creatures who think the police can do no wrong. They may have willingly collaborated in the brutalization of a fellow human being.

Or maybe the doctors and nurses were intimidated by overbearing police officers. Perhaps, surrounded by ticked-off deputies with a reputation for working outside the bounds of the law, they grudgingly cooperated with the egregious civil rights violation.

Dissenters in the room may have walked away and refused to participate, or else swallowed their pride for fear of their jobs.

I lean toward the willing-collaborators explanation. Emergency room docs -- and this was almost certainly in the emergency room -- are, by and large (yes, I'm generalizing here in a big way), cowboy adrenaline junkies with minimal empathy. They don't intimidate easily, and they don't spend loads of time agonizing over moral quandaries. They're also likely to laugh at cops who get in their faces. "Were you counting on anesthesia the next time a uniform shows up in my ER?" is a not-unlikely rejoinder to any police officer who tries to get emergency room staffers to do what they don't want to do.

But either way, medical personnel, like the rest of us, are responsible for their actions. In the absence of guns at their heads, doctors and nurses must answer for the things they do -- even if those things are performed at the request of state officials.

You don't get a moral get-out-of-jail-free card because the cops said "pretty please" before you agreed to participate in a horrible civil rights violation.

As much as I hope the Albany County Sheriff's Department is penalized for its conduct in this matter (and its overall history of conducting abusive searches) I also think the administration and some staff members at the Albany Medical Center Hospital also need to answer for their actions. As the Clement case makes abundantly clear, collaborators make possible rights violations that don't need to happen. Hospital personnel couldn't have undone Clement's arrest, but they could have refused to enable -- and had no right to participate in -- the rest of the man's ordeal.

Let's hope Tunde Clement's lawsuit against both institutions makes him a wealthy man -- and the cops and doctors of Albany just a little more thoughtful.

Sorry about that illegal search ...

... but we'll use the evidence anyway.

Mueller says FBI continues abuses

FBI Director Robert Mueller sat down before the Senate Judiciary Committee (incomplete testimony, minus the juicy bits here), and he continued the ongoing saga of his agency's abuse of the powers it has been delegated. According to the Associated Press:

The FBI improperly used national security letters in 2006 to obtain personal data on Americans during terror and spy investigations, Director Robert Mueller said Wednesday.

This comes after an Inspector General's testimony and report detailing similar abuses of authority earlier in the decade -- national security letters featured prominently in the earlier scandal too.

While Mueller's testimony produces no revelations, it does provide ample evidence that FBI violations of civil liberties aren't occasional missteps -- they're a chronic problem. Year after year, as the 2007 report (PDF) revealed, the feds improperly use their powers "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." Each time, FBI leaders promptly promise to reform practices and make sure due-process requirements and Americans' privacy rights are respected in the future -- and then off we go to the next round of reports and hearings.

It should be clear by now that government officials can't be trusted with the kind of power they've been given. If the same powers are abused year in and year out, then those powers need to be taken away and increased oversight has to be put in place. We'll probably still get violations of rights under a regime of reduced authority, but those violations will be less dangerous and more easily revealed than the tens of thousands of national security letters that have flown around the country in recent years under current law.

As I pointed out in an earlier post:

"A Review of the Federal Bureau of Investigation’s Use of National Security Letters" (PDF) 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.

As matters stand now, are we really any safer because the FBI can't keep its prying eyes out of our personal business? Or are we just under the nosy stares of an agency staffed with tax-funded voyeurs?

Arizona pols meddling in pediatrics

It's not at all unusual for politicians to consider themselves better stewards of the people's health than the people themselves or the medical providers that people choose to treat their ills. The fact that such meddling isn't unusual doesn't mean you want to encourage it, so I'm passing along an emailed heads-up about two bills being considered today by the Arizona Senate Health Committee that would compromise the privacy of patients and the independence of physicians:

SB 1213 AHCCCS; children; psychiatric medications; information

This is basically the same bill as last year, which we defeated. The bill would require AHCCCS to release an annual report to the legislature and the public containing the following information for all children receiving behavioral health care through the state system including children in the Arizona Long Term Care system and Foster Care and children receiving services through DDD:

1. THE TYPE OF PRESCRIBED PSYCHIATRIC MEDICATION.
   
2. THE AGE OF THE CHILD RECEIVING THE MEDICATION.
   
3. THE DRUG NAME AND DOSAGE.
   
4. THE COUNTY OF THE CHILD'S RESIDENCE.
   
5. THE CITY OF THE CHILD'S RESIDENCE.
   
6. THE NAME AND PROFESSIONAL LICENSE NUMBER OF THE HEALTH PROFESSIONAL WHO PRESCRIBED THE MEDICATION.
   

The sponsor and the supporters of this bill will testify that they are concerned about the number of children who are receiving multiple medications and this is their way of tracking that information. The problem with that argument is that this information is already tracked by both AHCCCS and DBHS as well as the RBHA's. This information, (without the personally identifying information), is available to the legislature but not the public and should not be made available to the public.

AT ISSUE:

• The information provided includes personally identifying information (age) as per HIPPAA and therefore would be in violation of Federal and state law.
  
• The information would not provide an accurate picture of the treatment plan for the child. The name and dosage of the drug without a diagnosis is useless information. Treatment plans do not consist of drug therapy alone.
  
• By making the report public they would be releasing information that, if taken out of context, could be used inaccurately to inflame an already controversial issue thus fueling the further stigmatization that children with mental health disorders and their families have to deal with everyday.
  
• Knowing that their child would be included in such a public report could prevent families from seeking needed treatment.
  
• Publishing the names of doctors and making them available to the public is wrong for the following reasons:
  
  
  
  • Anyone with a personal agenda or and organization with a national agenda against psychotropic medications would be able to access the names of doctors who are prescribing to young children. This information could be taken out of context and used against the doctors in a public forum.
    Doctor's should not have to defend themselves, to the public, for using evidence based, standard in the industry, medical practices.
    
  • These doctors treat the medicaid and foster care population. We already have a shortage of pediatric psychiatrists, both state wide and nationally. This type of pubic reporting would prevent doctors from agreeing to treat these very vulnerable populations who have no other options.
    
  • Primary care physicians and pediatricians who also treat the medicaid population and prescribe psychotropic medications to children would be discouraged from doing so knowing that their names would be published in a publicly accessible report.
    
  • The state already has a mechanism in place for tracking this information and investigating doctors who may be prescribing inappropriately. The public does not have the knowledge or expertise in these issues and should not become part of this process.
    
  
  

SB 1399 doctors; prescriptions; nonindicated use

This bill would add language to the definition of unprofessional conduct for a licensed medical professional to include the prescribing of medication for "off label" use to anyone under the age of 18 unless that prescription has been confirmed in writing by a consulting physician who must examine the patient and the patient's medical records.

Prescribing of medications for "off label" use (a use other than the FDA approved use) is a common practice among the medical profession. Many drugs are used for purposes they were not originally intended but were later found to be effective treatments for. Such as: Retina A; approved by the FDA as an acne treatment but now also used to correct sun damage and for cosmetic reasons, Beta-blockers for the prevention of migraine headaches and benzodiazepines for the treatment of pain in cancer patients.

AT ISSUE

1. The bill is too broad

• The bill does not indicate if the "consulting" physician must be licensed in the same specialty as the original prescribing doctor.
  
• Emergency room doctors would also have to comply, which could delay life saving treatment.
  

2. The bill would create additional expense

• Requiring a second opinion which includes a physical exam by a second physician would result in additional costs which insurance companies would most likely not cover if the need did not fall under their definition of medical necessity.
  
• The state budget for AHCCCS would have to be dramatically increased in order to provide payment to a consulting physician.
  

3. The bill would create delays in treatment

• Requiring a second opinion on all off label prescription would delay treatment in a state that is already suffering from a shortage of doctors.
  
• Parents would have to take additional time off work to meet the consulting physician requirement.
  
• The small towns and rural communities in AZ who often have a shortage of doctors, would be more adversely impacted.
  
• Emergency rooms would delay life saving treatment.
  

4. The Arizona Medical Board already monitors physicians prescribing practices and has rules, as well as punishments for breaking those rules, in place. This additional requirement is not needed.

PLEASE CONTACT THE MEMBERS OF THE SENTATE HEALTH COMMITTEE. (The names with the asterisk before them are especially important.)

* Carolyn Allen, Chairman (Dist 8)
callen@azleg.gov
(602) 926-4480


Tom O'Halleran, V. Chairman (1)
tohalleran@azleg.gov
(602) 926-5584

* Thayer Verschoor (22)
tverschoor@azleg.gov
(602) 926-4136

* Barbara Leff (11)
bleff@azleg.gov
(602) 926-4486

Meg Burton-Cahill (17)
mburtoncahill@azleg.gov
(602) 926-4124

Amanda Aguirre (24)
aaguirre@azleg.gov
(602) 926-4139

* Paula Aboud (28)
paboud@azleg.gov
(602) 926-5262

If any of these members are your Senator be sure to indicate that you are a constituent in the subject line.

Supremes to review Arizona search case

Says the Associated Press:

The Supreme Court agreed Monday to decide when police without a warrant can search the vehicle of a person who is under arrest.

Rodney Joseph Gant was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car.

A sharply divided Arizona Supreme Court ruled that the search violated the Constitution's Fourth Amendment. The state asking the U.S. high court to overturn that ruling.

The justices said they will hear the case next fall to decide whether officers must demonstrate a threat to their safety or the need to preserve evidence to justify a warrantless search in cases like Gant's.

On its face, the Arizona Supreme Court decision makes excellent sense. Gant was arrested "about 10 feet away from his parked car." Secured as he was he posed no threat to police and there was nothing other than curiosity to draw law enforcement attention to his vehicle. It seems like a no-brainer to say that police had no business searching the car without a warrant.

It seems, I say but we're talking about cars, the Fourth Amendment and the Supreme Court -- three things that don't mix well.

In Maryland v. Dyson, the Supreme Court held that police can pretty much search automobiles at will. In Florida v. White the court ruled that a parked car can be seized by police without a warrant if they believe (but haven't legally proved) it is "contraband" under local law. There are other cases along these lines, too, but the gist is that, when it comes to automobiles, the Fourth Amendment is dressed-up, rouged and lying in a pine box.

Will the fact that Gant was arrested ten feet from the car make a difference?

I wouldn't count on it, unless the court is set to make a dramatic break with the trend of its recent rulings (Dyson and White both date to 1998). And don't look to Arizona law to provide a bulwark against weakened federal search and seizure protection -- the Arizona Supreme Court's Gant decision (PDF) was based on the Fourth Amendment and federal precedent, so stronger state protections won't be forthcoming.

I'm afraid that we're due for another Supreme Court ruling that we're all ripe for the plucking by the nearest uniformed government employee the moment we set foot in our cars.

Real ID guidance

With the first deadline for compliance with federal Real ID standards looming on May 11, 2008, and several states outright refusing to comply, it's worth noting how this implementation of a de facto national identification card threatens to transform everyday life. CNet's Declan McCullagh has the answers to your questions.

Anonymous travel takes another hit

Rail travel in the U.S. has suffered no terrorist attacks of any note, and even around the world the sort of trains that have drawn terrorist's attention have been commuter trains that regularly carry large numbers of passengers at predictable times and which have the potential to disrupt life throughout major cities if targeted. Given that American inter-city rail travel hasn't popped up on anybody's threat radar, and that the hassle-free anonymity it offers has won some privacy-conscious passengers away from the airlines for the red-ink drenched rail system, what's the logical move for Amtrak to make? Why, to trade away its comparative advantage for airport-style security hassles, of course!

The new procedures draw heavily on measures being used in the New York City subways, Rooney said. That model has been upheld in court challenges, he noted.

Amtrak plans to roll out the new "mobile security teams" first on the Northeast Corridor between Washington and Boston, the railroad's most heavily used route, before expanding them to the rest of the country.

The teams will show up unannounced at stations and set up baggage screening areas in front of boarding gates. Officers will randomly pull people out of line and wipe their bags with a special swab that is then put through a machine that detects explosives. If the machine detects anything, officers will open the bag for visual inspection.

Anybody who is selected for screening and refuses will not be allowed to board and their ticket will be refunded.

Passengers purchasing tickets from station agents are now being carded, but it's still possible to purchase tickets without showing ID at self-serve kiosks -- for all the good that will do you if you're chosen for a random inspection.

But won't it make us all a bit safer to be treated like Cubans trying to exchange ration cards for a few ounces of meat? Well ... I doubt it. After all, even the most "secure" train with the most harassed passengers has to travel over thousands of miles of unwatched track.

Even before the post-9/11 hysteria, I often preferred to travel the Northeast by bus or rail because of the ability to preserve privacy and to travel without having your belongings pawed by strangers. Even when asked for a name to purchase a ticket, I always gave a fake name -- sometimes preposterously so -- and nobody batted an eyelash.

But nowadays, even travelers on the nation's private bus lines are increasingly subject to security screenings and random searches. The days of purchasing a ticket with cash, using whatever name pleases you and traveling in anonymity are rapidly drawing to a close.

Cars remain an option if you ignore the need for driver's licenses and plates; if you drive you can still pack what you want and go from point A to point B without justifying yourself to the authorities. But how much longer will that happy state of affairs remain the case before we suddenly find ourselves routinely opening our trunks at roadblocks and explaining what business we're on?

Can you even pretend it's still a free country when you can't go from town to town without showing identity papers and letting uniformed goons judge the propriety of the contents of your luggage?

Warrantless wiretaps and telecom immunity move forward

How much impact did the Democratic takeover of Congress have on ... oh ... let's say, protecting Americans against intrusive wiretapping? Not a whole hell of a lot, to judge by the Senate vote on an extension of expanded federal wiretapping powers. Not only is the Democrat-led Senate gung-ho to "update" the Foreign Intelligence Surveillance Act of 1978, granting law-enforcement authorities awesome power to conduct electronic surveillance without bothering with the formality of securing a warrant first, but it voted 67-31 to reject an amendment that would have stripped out a provision immunizing telecommunications companies against liability for past violations of customers' privacy during the course of wiretapping operations.

Why does the government want to give telecommunications companies what amounts to a get-out-of-jail free card? Because at least some telecoms have been the feds' willing accomplices. Says the Electronic Frontier Foundation, which is acting as co-lead counsel in lawsuits against the guilty companies:

Reporting from every major American media outlet and undisputed whistleblower evidence show that AT&T and other phone companies were complicit in the NSA's warrantless surveillance. This included the records and full content of the private domestic communications of millions of ordinary Americans. The President and the phone companies hid this information from Congress and the American people for at least six years.

That doesn't sit well with everybody. As Caroline Fredrickson, director of the ACLU Washington Legislative Office, said in a statement posted on the Web:

When companies break the law they should be held accountable by our government – not given a multi-million dollar favor. The millions of Americans who are telecom customers deserve to know that their phone conversations are private. The telecommunications providers illegally turned over private customer call information to the government. Instead of having faith in the U.S. court system to fairly handle these cases; the U.S. Senate is poised to give the telecom providers a get-out-of-jail-free card.

So the Senate is dead-set on establishing the precedent that, when private companies violate their customers' privacy rights at the behest of government authorities, they'll be protected by their powerful buddies. Left implicit is the threat that if they don't play along with the feds, bad things could happen. So the telecoms' have a choice between breaking the law on behalf of the government without consequence, or sticking up for their customers' privacy and pissing off the regulators who exercise enormous power over their bottom lines.

What do you think most companies will choose to do in the future?

And who do you turn to to change things when both major political parties seem to think this all constitutes wise public policy?

Olbermann slams Bush on FISA

If you missed it, last night MSNBC's Keith Olbermann laid off the tired Bill-O'Reilly-sucks shtick long enough to make an impassioned attack on President Bush and his ongoing attempt to link open-ended power to conduct wiretaps without judicial oversight to immunity from legal liability for telecommunications companies who break the law while assisting the government with its eavesdropping schemes.

See the full rant here:



Specifically, Olbermann challenges Bush's claim that we're doomed -- doomed -- unless the government is free to monitor electronic communications at will (so long as it invokes the words "foreign intelligence"), followed by his threat to reject any legislation that grants him the oh-so-necessary power he wants, but that excludes legal immunity for his corporate collaborators.

For the record, I hope that Bush does veto any expansion of wiretapping powers sent his way -- and that Congress then declines to pass any further legislation on the matter beyond the 15-day extension that's already law. That would spare us the fallout from such easily abused power, and leave Bush with egg on his face.

Who says we shouldn't require warrants for wiretaps?

In the pages of the Wall Street Journal, Cato Institute staffer and supposed libertarian Roger Pilon made the case for granting President Bush's request for essentially unlimited surveillance power free of any significant oversight.

Wait. That can't be right.

Crap -- it is. Read Pilon's own words:

Today the Senate takes up a bipartisan surveillance authorization measure that's already passed the Intelligence Committee. The clock is ticking. This Friday a temporary law called the Protect America Act will expire. If Congress does not act before then, the president's statutory power to prevent terrorist attacks will be seriously compromised.

This dangerous situation should never have arisen. From the beginning, presidents have exercised their Article II executive power to gather foreign intelligence — in war and peace alike, without congressional or judicial intrusion. As our principal agent in foreign affairs, the president is constitutionally bound to protect the nation. For that, intelligence is essential.

The rest of the column lays out the case for why Congress and the judiciary should butt out and leave the executive branch to the serious business of eavesdropping on people's phone calls -- at least, when the words "foreign intelligence" can be invoked. It's a breathtakingly imperial argument of the sort I expect to see coming from the pen of an AEI staffer or a Weekly Standard scribe -- not somebody who heads up constitutional studies for Cato.

To give Cato its due, the whole place hasn't gone blood-and-soil on us. On Cato's blog yesterday, Timothy Lee, explicitly rebutting Pilon, argues that Congress should definitely provide for judicial oversight of surveillance operations, if only to make sure that the president doesn't engage in wholesale civil rights violations under the screen of "foreign intelligence":

Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals. This is no hypothetical scenario. The FBI conducted extensive surveillance of Martin Luther King Jr. and other civil rights and anti-war leaders in the 1960s and 1970s, which was one of the reasons Congress enacted new safeguards in the first place.

Lee didn't have to dig too deeply to uncover abuses committed by the executive branch in the past; surely Pilon is just as aware of why Congress imposed judicial oversight on eavesdropping operations to begin with. Yet, in the Journal column, Pilon makes it sound as if Congress was just being spiteful by requiring that Fourth Amendment protections apply to electronic searches as well as to physical pawing through people's sock drawers.

If Roger Pilon is going to abandon the cause of liberty, can't he come up with a better argument to make his case?

Bush closer to snooping approval

This from the Wall Street Journal:

The Senate rejected an attempt by a number of Democrats to strip from surveillance legislation a provision that would bar lawsuits against phone companies alleged to have helped the government's warrantless spying, handing President Bush a small initial victory.

Congress seems poised to renew the extraordinary wiretapping powers allowed by the Foreign Intelligence Surveillance Act, which would otherwise expire on February 1. Such renewal could effectively make permanent some of the police-state powers granted to the government in the panic-stricken wake of the 2001 terrorist attacks.

Feds look for wiggle room on Real ID

The Department of Homeland Security has pushed back deadlines that states must meet in order to comply with the federal "Real ID" scheme to convert state-issued driver's licenses and IDs into by-any-other-name national identification cards. According to the Electronic Privacy Information Center:

The REAL ID Act of 2005 creates a de facto national identification card. Ostensibly voluntary, it would become mandatory as those without the card would face suspicion and increased scrutiny. It is a law imposing federal technological standards and verification procedures on state driver's licenses and identification cards, many of which are beyond the current capacity of the federal government, and mandating state compliance by May 2008. In fact, REAL ID turns state DMV workers into federal immigration officials, as they must verify the citizenship status of all those who want a REAL ID-approved state driver's license or identification cards. State DMVs would far move away from their core mission -- to license drivers.

REAL ID was appended to a bill providing tsunami relief and military appropriations, and passed with little debate and no hearings. The REAL ID Act repealed provisions in the Intelligence Reform and Terrorism Prevention Act of 2004, which contained "carefully crafted language -- bipartisan language -- to establish standards for States issuing driver's licenses," according to Sen. Richard Durbin. After more than two years, the Department of Homeland Security issued draft regulations for state compliance on March 1, 2007.

The National Conference of State Legislatures estimates (pdf) that that the cost to the states will be more than $11 billion over five years. This is more than 100 times the $100 million cost that Congress initially estimated. For 2006, $40 million was allocated for start-up costs. No more funding has been allocated, and it is likely that the cost will be shouldered by the public. The Department of Homeland Security has estimated that REAL ID will cost $23.1 billion over 10 years.

Many states have been resistant to the plan because of the expensive unfunded federal mandate it represents and also because of the potential threat it represents to privacy. The deadline delay would reduce short-term costs to a claimed $3.9 billion (still far above initial estimates), helping to defuse opposition, and give the feds more time to strong-arm state officials into submission.

Technically, states can't be forced to adopt federal standards or connect their license databases to a federally controlled network, but driver's licenses issued by states that don't comply will no longer be accepted as valid ID for federal purposes after the new deadline of December 2014. The residents of holdout states wouldn't even be able to board commercial airliners.

Unless ... enough states refuse to turn their driver's licenses into tools of a security state. New Hampshire is among the states that have flat-out refused to go along with Real ID, as have Maine, Idaho, Montana, Oklahoma, South Carolina and Washington. Other states have condemned the law without explicitly refusing to abide by its requirements. If enough of the population lives in places that issue non-compliant driver's licenses, it's going to be very difficult for the feds to carry out their threat to bar millions of people from federal offices and airports.

Which, no doubt, is a big part of the reason that the deadline has been allowed to slip a few years. That's plenty of time to fight behind the scenes -- or to allow the whole offensive ID of Real ID to die a quiet death on somebody else's watch.

Spy amnesty bill gets yanked

As a former Connecticut resident, I know that Sen. Christopher Dodd isn't good for much other than competing in the liver-damage Olympics with his buddy, Sen. Kennedy. But those of us who care enough to want to rein-in the surveillance state owe him a vote of thanks for his threat to filibuster a bill that would have shielded telecommunication companies from lawsuits over their collaboration with the government in schemes to spy on Americans. The threat worked; Senate Majority Leader Harry Reid has pulled the bill from consideration for the time being.

The Electronic Frontier Foundation has the lowdown on the spying scandal, and the effort to make telecoms de facto deputies of the NSA.

More fun at the airport

Get ready to cough up more information to the feds when you reserve your airline tickets.

The Transportation Security Administration wants to start collecting your full name, birth date, and gender when you reserve an airline flight. The TSA says it will mean fewer travelers are mistaken for terrorists. Right now travelers only have to provide a last name and a first initial.

United Airlines calls the new info sought by the TSA "useless data" and says it will "create a new level of complication for completing air reservations." Oh goody, just what we need -- more complications between purchasing tickets and boarding a (late) flight.

Left unaddressed by the TSA is whether the new information will ease the plight of people unjustly added to the no-fly list and subjected to lengthy and demeaning extra scrutiny -- or just create new grounds for confusion.

Who needs a warrant?

The Washington Post reports that at least one telecommunications company -- Verizon -- has been routinely surrendering information about its customers to government officials without court orders for years. The surrender of personal data has occurred in situations where investigators invoke the word "emergency" as a magic spell to summon instant compliance in the post-9/11 world.

From January 2005 to September 2007, Verizon provided data to federal authorities on an emergency basis 720 times, it said in the letter. The records included Internet protocol addresses as well as phone data. In that period, Verizon turned over information a total of 94,000 times to federal authorities armed with a subpoena or court order, the letter said. The information was used for a range of criminal investigations, including kidnapping and child-predator cases and counter-terrorism investigations.

What's worse, Verizona and AT&T say it's not their job to ensure that requests from the government for customer information are legal and above-board. As a result, the telecoms default to deference to any government request so long as it's not embarrassingly illegal.

AT&T and Verizon both argued that the onus should not be on the companies to determine whether the government has lawfully requested customer records. To do so in emergency cases would "slow lawful efforts to protect the public," wrote Randal S. Milch, senior vice president of legal and external affairs for Verizon Business, a subsidiary of Verizon Communications.

"Public officials, not private businessmen, must ultimately be responsible for whether the legal judgments underlying authorized surveillance activities turn out to be right or wrong -- legally or politically," wrote Wayne Watts, AT&T's senior executive vice president and general counsel. "Telecommunications carriers have a part to play in guarding against official abuses, but it is necessarily a modest one."

This is exactly backwards, of course. Companies have an obligation to protect their customers' privacy from intrusions by any unauthorized party. There's no good reason for treating a request from a government official any differently from a request from a divorce lawyer or a reporter; in the absence of a legal compulsion to surrender the data, it should remain private. If customers' privacy is willfully violated, the company should be held liable.

Not surprisingly, telecoms face a host of lawsuits for cooperating so eagerly with the government's warrantless surveillance efforts. Also unsurprisingly, Congress is moving to grant blanket immunity to anybody who helps the government spy on private citizens.

But why are the telecoms so quick to roll over for government investigators?

Honestly, such cozy arrangements are probably inevitable when the state has regulatory power to wield as a club. Telling government officials "no" could have dangerous results when the next antitrust hearing is held or future spectrum allocations are approved. There's always that fear that regulators will remember who's cooperative -- and who's not.

Add in the rah-rah post-9/11 political environment (however attenuated it's becoming), which has had much of the population cheering on even the most ridiculous government claims in the name of national security, and it's been a tough time for a corporate executive to decide that he's going to be the guy to tell the FBI to go fuck itself.

But that's all the more reason to work to kill efforts to immunize the private sector against lawsuits over privacy violations resulting from kowtowing to intrusive government demands. Lawsuits might at least make corporate executives think twice; immunity makes instant surrender the easy choice for all but the rare idealist in the boardroom.

And if private companies find it easy to surrender to government officials, we're just going to see more of this.

Justice--a bit delayed

The infamous Patriot Act--parts of it, anyway--just may, finally, be on the ropes. I hope you haven't been holding your breath.

The scandal over the FBI's abuse of national security letters has reaped appropriate rewards. Last week, U.S. District Judge Victor Marrero ruled (PDF) that the use of the letters, without a warrant, to snoop through e-mail and telephone data is unconstitutional. Specifically, Marrero said the letters violate the separation of powers, since there's little judicial oversight, and the First Amendment, since the FBI can forbid recipients of the letters to reveal that they've received the nasty things.

Not mincing words, Marrero said the use of NSLs is "the legislative equivalent of breaking and entering."

Ain't that right.

As court challenges go, this is relatively fast work--only half a decade, give or take, for the courts to find (for the second time) that the Patriot Act's national security letters are an outrageous invasion of our rights. That really is about as fast as the judicial system is capable of moving--which is not a particularly encouraging thought as we tally up the tens of thousands of national security letters the FBI issued every year after the passage of the Patriot Act.

If you're looking for quick solutions to civil liberties violations, lawsuits are probably not the way to go. Even now, the federal government is expected to appeal Marrero's decision and further drag out the process.

On another front, Oregon attorney Brandon Mayfield--he of wrongly-fingered-by-the-FBI -as-a-terrorist fame--is in court with his own challenge to the Patriot Act provisions that resulted in his incarceration in the wake of the Madrid bombings. He spent two weeks in stir before the feds admitted they'd made a mistake.

Note, the Madrid attack, and Mayfield's resulting incarceration, were three years ago.

Once again, the legal system proves to be a circuitous route for righting a wrong inflicted by government officials.

I'm heartened that the courts are still capable of being outraged by some government actions. But when I consider how much officials can get away with during the long process of lawsuits and appeals, I'm not sure that such civil liberties decisions are much more than hollow victories.

You can trust us. Really

It sounds like the federal securi-crats tripped over their own assurances to the public about the safeguards inherent in the government's data-mining schemes:

The Homeland Security Department scrapped an ambitious anti-terrorism data-mining tool after investigators found it was tested with information about real people without required privacy safeguards. ...

Pilot tests of the program were quietly suspended in March after Congress' Government Accountability Office warned that "the ADVISE tool could misidentify or erroneously associate an individual with undesirable activity such as fraud, crime or terrorism."

Since then, Homeland Security's inspector general and the DHS privacy office discovered that tests used live data about real people rather than made-up data for one to two years without meeting privacy requirements. The inspector general also said ADVISE was poorly planned, time-consuming for analysts to use and lacked adequate justifications.

But it's just an isolated screw-up, you say. The potential benefits of such an intelligence program certainly off-set the chance of the occasional error.

Ah, but were it so.

This is the second such error at DHS.

The Secure Flight program to screen domestic air travelers was blocked by Congress after it acquired live personal data for testing. That program has since issued a privacy impact assessment, dropped use of commercial data such as personal credit card histories, and will begin tests this fall.

In fact, federal officials seem overwhelmingly prone to give rather cavalier treatment to sensitive data about individuals and businesses. At least these abuses came during the test phase of these data-gathering operations, at a time when they're likely to be subject to much more scrutiny than they would be during routine operation, and when they have access to less information than they would when in their full glory.

These programs are also more vulnerable now. How likely is it that the feds would shut down data-mining operations once they've become an established part of the bureaucracy--even in the face of a much larger scandal about the abuse of information?

let's just take this as a warning about what the government should not be allowed to do.

Reason 931 why I'm glad I left New York

The Gotham Gazette covers a new government scheme to create a "ring of steel" in lower Manhattan that would place people in the street under an unprecedented degree of intrusive surveillance by law enforcement agents.

The New York City Police Department will soon launch a new counter-terrorism surveillance program named the "Lower Manhattan Security Initiative." It will include some 3,000 cameras – both public and private – below Canal Street to monitor people and cars moving through Lower Manhattan, along with license plate readers, a command center and movable roadblocks. The program is generally seen as having been modeled on London’s so-called ring of steel, a security and surveillance system that keeps many eyes on London’s financial district and historic sites. Some counts estimate that with this system the average London resident is photographed 300 times a day.

As always, the plan is being sold as a necessary means of preserving public safety in these unfortunate days post-9/11. Unmentioned is any matching scheme to protect New Yorkers from the folks running the ring of steel. And, as the article explains, the abuses of such a surveillance system are far from theoretical.

In a television interview, George Washington University law professor Jeffrey Rosen recalled sitting in a camera control room one night. When boredom set in after midnight, the workers focused not on miscreants but on attractive women and people making out in the park. During the 2004 Republican convention in New York, Rosen recalled, "surveillance cameras on airplanes took pictures of a couple making love on a roof garden, followed them, watched this whole thing and then actually trailed the woman as she left."

Now multiply such petty intrusions by the thousands of planned new cameras and the fallible people hired to monitor them--as well as the officials bound to "discover" new uses for their
data--and you have a recipe for disaster.

Will New Yorkers stand for it? I'll bet they will. Long famous for their stubborn rebelliousness, New Yorkers have proven every bit as receptive as anybody else to phony promises of safety in return for a little liberty.

New fans for wiretapping

Not surprisingly, questions are being raised (by me, among others) about Congress's approval of the Bush administration's wiretapping bill. The conventional wisdom is that Democrats won control of Congress on a wave of public revulsion toward the war in Iraq and related incursions into civil liberties here at home. The Republicans got booted so that Democrats could at least provide some legislative opposition to the Bush administration's excesses.

So why did the Democrats vote to expand the government's power to spy on Americans' without warrants?

It's one thing for Congress to be unable to actively bring the troops home; President Bush would veto any such measure (although the symbolic value would be important, I think). The most Congress can do about the war is refuse to approve funding--not that Congress critters have even gone that far. (In fact, I think Democrats like the continuation of the war so they have an issue with which to bludgeon Republicans.)

But the wiretapping vote was completely unnecessary. Congress could have voted the measure down, pleasing many Americans, especially among the Democratic Party's core constituents.

The answer, I think, lies in Democrats' anticipation of victory in next year's presidential election. All of the powers and precedents accumulated through eight years of George W, Bush's presidency will be available to the new resident of the White House. Quite clearly, Democrats--the party's leadership, anyway--aren't so much opposed to civil liberties violations as they are opposed to civil liberties violations by their enemies. The possibility of wielding such powers themselves is too tempting a prospect to resist.

It's true that the law "sunsets" after 180 days, but I won't be surprised to see yet another extension of wiretapping authority when that time is up. Democrats will allow themselves to be dragged--kicking and screaming, of course--into creating new powers that they themselves will ultimately use.

Whichever of the major parties you look at, the constituency for liberty as a value in and of itself is vanishingly small.

Look for the next administration to be roughly as nosy and intrusive as the one currently in power.

Setback for privacy

The Sixth Circuit Court of Appeals tossed out an ACLU lawsuit against an NSA snooping program. The decision came on "narrow procedural grounds" and doesn't address the legality of the wiretapping scheme.

Search and seizure victory

Good news on the Fourth Amendment front:

The Supreme Court on Monday extended to automobile passengers the same right that drivers have: the right to challenge the validity of a decision by the police to stop the car.

The unanimous ruling was based on the justices’ “intuitive conclusion,” in the words of the opinion’s author, Justice David H. Souter, that passengers in a car stopped by the police do not feel free to get out and walk away.

Unanimous, even. Who would've guessed?

Real ID reaction

The Wisconsin State Journal does a little roundup on the four states that, so far, have told the federal government where to stick its Real ID regulations.

WASHINGTON -- Defying Uncle Sam, four states have passed laws refusing to comply with federal rules to make state-issued driver's licenses more secure, casting further doubt on the future of the 2005 Real ID Act.

Although it is rare for states to reject an act of Congress, New Hampshire and Oklahoma in May joined Montana and Washington state in passing statutes this year refusing to go along with Real ID. The refusals mean those states' driver's licenses eventually won't be accepted as official identification when boarding airplanes or entering federal buildings.

In addition, the Idaho Legislature purposely left out any money to comply with the act. The Georgia Legislature passed a law giving Gov. Sonny Perdue authority to ignore the measure, but he is hoping the federal government will make the act more affordable, said his spokesman, Bert Brantley. ...

States have rebelled at the $14 billion in costs the act imposes on states, as well as worries that the new security system will invade residents' privacy and create what amounts to a national ID card.

It's good to see the Real ID requirements become more controversial as time goes on--especially since they were snuck into law without debate as an addendum to an emergency spending bill. Overt defiance of federal law is an all-too-rare occurrence, so the resistance campaign is going to need all the encouragement we can muster.

Smell that evidence

Do you smell something?

Sniff.

Why yes, I believe that's the Fourth Amendment smoldering.

Burnsville police acted properly in using a narcotics-detection dog outside the apartment door of a man suspected of illegal drug activity, the Minnesota Supreme Court ruled.

In a 5-2 decision, the court found that police needed only reasonable, articulable suspicion - not probable cause - that the defendant was engaged in illegal activity to conduct the dog sniff. Moreover, information from a private citizen informant - that maintenance workers believed they saw marijuana-growing lights in the apartment and that the defendant would not let the workers in to fix a water leak - supported a finding that the police had reasonable suspicion that there was illegal drug activity inside the apartment.

If police need only "reasonable, articulable suspicion" to use drug-sniffer dogs to remotely search an apartment, can they get away with the same standard when using infra-red cameras? How about other search techniques that don't require physical entry into a premises?

Technology marches on and search and seizure protections need to keep up--or else they'll become irrelevant relics of a simpler age.

Whoops! Sorry I shot your dog

Via Radley Balko's The Agitator comes word of a heavily armed Stockton, California, "code enforcement" team that arrived at the wrong address in the course of responding to a complaint about drug use--and ended up shooting the family dog and injuring a mother and her five-year-old daughter.

Yes, you heard that right; a code enforcement team which, according to the article, "addresses unsafe living conditions and includes armed deputies for the safety of environmental health workers... A team includes a sergeant, two deputies, two environmental health workers and two code enforcement officers, and often a California Highway Patrol officer." What are code inspectors doing tagging along on a drug raid? Conversely, what are cops doing tagging along for a home inspection?

Balko suggests that such teams have been assembled as an end-run around the Fourth Amendment. The inspectors can gain access to homes that would require warrants for police officers alone. While the article isn't clear on whether the team had a warrant, I think he's probably right; other jurisdictions--notably, Belleville, Illinois--have pulled similar stunts explicitly to get around the search-and-seizure protections that usually shield people from unwarranted intrusions into their homes.

But such stunts are almost certainly unconstitutional. In 1967, in the case of Camara v. Municipal Court of San Francisco, the U.S. Supreme Court ruled:

In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections.

The Supreme Court allowed an exception for "emergency situations," which Stockton may have invoked as a creative interpretation of the drug complaint. Or Stockton may simply have ignored the standard set by the Supreme Court as Belleville has done. The idea that
home inspectors have super-constitutional powers seems to be stuck in the minds of certain government officials, never to be dislodged by mere legal precedent. That's dangerous enough, but the full extent of politicians' contempt for constitutional protections becomes clear when they attempt to piggyback police officers on the special powers they imagine to be possessed by code enforcers.

Unfortunately, the importance of constitutional protections is emphasized most strongly by incidents like the one in Stockton. Any encounter between citizens and government officials is fraught with legal risk for the citizens. Who can keep track of all the laws on the books and be sure that they've run afoul of none? But add armed police officers to the mix and the potential for violence becomes very real. That's especially true as police have become increasingly aggressive in their tactics.

A warrant requirement at least places some restraints on the encounter. At the very least, there must be suspicion of criminal activity and probable cause to persuade a judge (although too many judges these days are nothing but rubber stamps). Searches done by the book, with warrants, are sufficiently subject to abuse and mistake that loosening restraints on the state clearly opens the door for horrific results.

Like arriving at the wrong address, shooting a harmless dog and wounding a mother and her daughter with bullet fragments.

Did you hear that?

You have to give them credit for utter shamelessness. Even after recent revelations that the FBI abused national security letters to collect private information to which it wasn't entitled, federal intelligence officials don't flinch from requesting expanded wiretap powers.

Claiming that federal investigators are missing key information on terrorists because of an outdated spying law, the top U.S. intelligence official called on lawmakers on Tuesday to revamp the foreign surveillance act and make it easier to eavesdrop on non-citizens in the United States with suspected links to terrorism.

Congressional Democrats don't seem too keen on the idea. The Bush administration's misuse of existing surveillance powers gives them pause and, besides, they just don't like the Republican-led executive branch.

You gotta love divided government.

Feds fail privacy test--again

Oh joy. Yet another fumbling breach of personal privacy by our fearless leaders:

The Social Security numbers of up to 63,000 people who received Agriculture Department grants have been posted on a government Web site since 1996, but they were taken down last week.

Since 1996? The feds posted identity-theft bait for over ten years, even while burdening the private sector with burdensome and bureaucratic privacy "protections" like HIPAA?

Why am I not surprised?

The problem, of course, isn't just that some federal bureaucrats blindly went about the business of posting personal information, including Social Security numbers, without thinking about the consequences. That, frankly, is only to be expected of the sort of people who make a life of government employment. The real problem is that Social Security numbers have become such potent identifiers for tagging and tracking Americans that simply revealing them can be potentially dangerous.

If you were to deliberately devise a scheme more fraught with peril for privacy, it would be hard to beat a system that links all of the legally revealing and financially sensitive data of people's lives through a common identifying number that can be exploited by anybody who gains its possession. But we can't even point to a clear-cut villain. As far as I know, nobody set out to make the Social Security number as all-powerful and malignant as it is; we just sort of stumbled into that situation. Government officials have a seemingly innate desire to centralize their control and oversight of information about the world through which they stumble, and the Social Security number was a handy for achieving that end.

The fact that it was a really stupid idea was just an added bonus for people accustomed to meeting the "good enough for government work" standard.

I don't know that the situation is fixable short of weaning the government off its urge to control everything and everyone--and really, I don't see that happening anytime soon.

Maybe the only solution at hand is to feed the government's bottomless appetite for information with as much inaccurate nonsense as possible. The Social Security number might be a bit less of an inviting target for thieves and bureaucrats if the information it reveals can't be relied upon.

Montana bucks Real ID

With a stroke of the pen, Montana has thrown the gauntlet down to the federal government over D.C.'s contentious Real ID requirements. Gov. Brian Schweitzer signed legislation that forbids the state's Department of Motor Vehicles to implement the national rules, which are intended to turn state-issued driver's licenses into de facto national ID cards.

While Montana is the first state to take the plunge, as many as 30 states are considering moves of some sort or another against the Real ID requirements. The more states the merrier, because non-compliant driver's licenses won't be accepted as legitimate ID for transactions with the federal government. The feds will probably let one hold-out state dangle in the breeze, but if a significant percentage of the national population is non-compliant, D.C. will be forced to back down.

Pssst! Wanna buy a hot computer?

As if you didn't have enough to worry about during this festive tax season, now it turns out that the Internal Revenue Service is practically giving away sensitive data -- and expensive computer equipment on which to read it.

According to a report (PDF file) is