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Secret Court Rules That the FBI’s Backdoor Searches of Americans Violated the Fourth Amendment – EFF

But the Court Misses the Larger Problem: Section 702s Mass Surveillance is Inherently Unconstitutional

EFF has long maintained that it is impossible to conduct mass surveillance and still protect the privacy and constitutional rights of innocent Americans, much less the human rights of innocent people around the world.

This week, we were once again proven right. We learned new and disturbing information about the FBIs repeated and unjustified searches of Americans information contained in massive databases of communications collected using the governments Section 702 mass surveillance program.

A series of newly unsealed rulings from the federal district and appellate courts tasked with overseeing foreign surveillance show that the FBI has been unable to comply with even modest oversight rules Congress placed on backdoor searches of Americans by the FBI. Instead, the Bureau routinely abuses its ability to search through this NSA-collected information for purposes unrelated to Section 702s intended national security purposes.

The size of the problem is staggering. The Foreign Intelligence Surveillance Court (FISC) held that the FBI has conducted tens of thousands of unjustified queries of Section 702 data. The FISC found that the FBI created an unduly lax environment in which maximal use of these invasive searches was a routine and encouraged practice.

The court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for peoples communications

But as is too often the case, the secret surveillance courts let the government off easy. Although the FISC initially ruled the FBIs backdoor search procedures violated the Fourth Amendment in practice, the ultimate impact of the ruling was quite limited. After the government appealed, the FISC allowed the FBI to continue to use backdoor searches to invade peoples privacyeven in investigations that may have nothing to do with national security or foreign intelligenceso long as it follows what the appeals court called a modest ministerial procedure. Basically, this means requiring FBI agents to document more clearly why they were searching the giant 702 databases for information about Americans.

Rather than simply requiring a bit more documentation, we believe the court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for peoples communications.

Ultimately, these orders follow a predictable path. First, they demonstrate horrific and systemic constitutional abuses. Then, they respond with small administrative adjustments. They highlight how judges sitting on the secret surveillance courts seem to have forgotten their primary role of protecting innocent Americans from unconstitutional government actions. Instead, they become lost in a thicket of administrative procedures that are aimed at providing thin veil of privacy protection while allowing the real violations to continue.

Even when these judges are alerted to actual violations of the law, which have been occurring for more than a decade, they retreat from what should now be clear as day: Section 702 is itself unconstitutional. The law allows the government to sweep up peoples communications and records of communications and amass them in a database for later warrantless searching by the FBI. This can be done for reasons unrelated to national security, much less supported by probable cause.

No amount of ministerial adjustments can cure Section 702s Fourth Amendment problems, which is why EFF has been fighting to halt this mass surveillance for more than a decade.

These rulings arose from a routine operation of Section 702the FISCs annual review of the governments certifications, the high-level descriptions of its plans for conducting 702 surveillance. Unlike traditional FISA surveillance, the FISC does not review individualized, warrant-like applications under Section 702, and instead signs off on programmatic documents like targeting and minimization procedures. Unlike regular warrants, the individuals affected by the searches are never given notice, much less enabled to seek a remedy for misuse. Yet, even under this limited (and we believe insufficient) judicial review, the FISC has repeatedly found deficiencies in the intelligence communitys procedures, and this most recent certification was no different.

Specifically, among the problems the FISC noticed were problems with the FBIs backdoor search procedures. The court noted that in 2018, Congress directed the FBI to record every time it searched a database of communications collected under Section 702 for a term associated with a U.S. person, but that the Bureau was simply keeping a record of every time it ran such a search on all people. In addition, it was not making any record of why it was running these searches, meaning it could search for Americans communications without a lawful national security purpose. The court ordered the government to submit information, and also took the opportunity to appoint amici to counter the otherwise one-sided arguments by the government, a procedure given to the court as part of the 2015 USA Freedom Act (and which EFF had strongly advocated for).

As the FBI provided more information to the secret court, it became apparent just how flagrant the FBIs disregard for the statute was. The court found no justification for FBIs refusal to record queries of Americans identifiers, and that the agency was simply disobeying the will of Congress.

Even more disturbing was the FBIs misuse of backdoor searches, which is when the FBI looks through peoples communications collected under Section 702 without a warrant and often for domestic law enforcement purposes. Since the beginning of Section 702, the FBI has avoided quantifying its use of backdoor searches, but we have known that its queries dwarfed other agencies. In the October 2018 FISC opinion, we get a window into just how disparate the number of FBIs searches is. In 2017, the NSA, CIA and National Counterterrorism Center (NCTC) collectively used approximately 7500 terms associated with U.S. persons to query content information acquired under Section 702. Meanwhile, the FBI ran 3.1 million queries against a single database alone. Even the FISC itself did not get a full accounting of the FBIs queries that year, or what percentage involved Americans identifiers, but the court noted that given the FBI's domestic focus it seems likely that a significant percentage of its queries involve U.S.-person query terms.

The court went on to explain that the laxand sometimes nonexistentoversight of these backdoor searches generated significant misuse. Examples reported by the government included tens of thousands of batch queries in which the FBI searched identifiers en masse on the basis that one of them would return foreign intelligence information. The court described a hypothetical involving suspicion that an employee of a government contractor was selling information about classified technology, in which the FBI would search identifiers belonging to all 100 of the contractors employees.

As the court observed, these compliance issues demonstrated fundamental misunderstandings about the statutory and administrative limits on use of Section 702 information, which is supposed to be reasonably likely to return foreign intelligence information. Worse, because the FBI did not document its agents justifications for running these queries, it appears entirely possible that further querying violations involving large numbers of U S.-person query terms have escaped the attention of overseers and have not been reported to the Court.

With the benefit of input from its appointed amici, the FISC initially saw these violations for what they were: a massive violation of Americans Fourth Amendment rights. Unfortunately, the court let the FBI off with a relatively minor modification of its backdoor search query procedures, and made no provision for those impacted by these violations to ever be formally notified, so that they could seek their own remedies. Instead, going forward, FBI personnel must document when they use U.S. person identifiers to run backdoor searchesas required by Congressand they must describe why these queries are likely to return foreign intelligence. Thats it.

Even as to this requirement which was already what the law required -- there are several exceptions and loopholes. This means that at least in some cases, the FBI can still trawl through massive databases of warrantlessly collected communications using Americans names, phone numbers, social security numbers and other information and then use the contents of the communications for investigations that have nothing to do with national security.

It is disturbing that in response to widespread unconstitutional abuses by the FBI, the courts charged with protecting peoples privacy and overseeing the governments surveillance programs required FBI officials to just do more paperwork. The fact that such a remedy was seen as appropriate underscores how abstract ordinary peoples privacyand the Fourth Amendments protectionshave become for both FISC judges and the appeals judges above them on the Foreign Intelligence Court of Review (FISCR).

But the fact that judges view protecting peoples privacy rights through the abstract lens of procedures is also the fault of Congress and the executive branch, who continue to push the fiction that mass surveillance programs operating Section 702 can be squared with the Fourth Amendment. They cannot be.

First, Section 702 allows widespread collection (seizure) of peoples Internet activities and communications without a warrant, and the subsequent use of that information (search) for general criminal purposes as well as national security purposes. Such untargeted surveillance and accompanying privacy invasions are anathema to our constitutional right to privacy and resembles a secret general warrant to search anyone, at any time.

The Founders did not fight a revolution to gain the right to government agency protocols

Second, rather than judges deciding in specific cases whether the government has probable cause to justify its surveillance of particular people or groups, the FISCs role under Section 702 is relegated to approving general procedures that the government says are designed to protect peoples privacy overall. Instead of serving as a neutral magistrate that protects individual privacy, the court is several steps removed from the actual people caught up in the governments mass surveillance. This allows judges to then decide peoples rights in the abstract and without ever having to notify the people involved, much less provide them with a remedy for violations. This likely leads the FISC to be more likely to view procedures and paperwork as sufficient to safeguard peoples Fourth Amendment rights. Its also why individual civil cases like our Jewel v. NSA case are so necessary.

As the Supreme Court stated in Riley v. California, the Founders did not fight a revolution to gain the right to government agency protocols. Yet such abstract agency protocols are precisely what the FISC endorses and applies here with regard to your constitutionally protected communications.

Third, because Section 702 allows the government to amass vast stores of peoples communications and explicitly authorizes the FBI to search it, it encourages the very privacy abuses the FISCs 2018 opinion details. These Fourth Amendment violations are significant and problematic. But because the FISC is so far removed from overseeing the FBIs access to the data, it does not consider the most basic protections required by the Constitution: requiring agents to get a warrant.

We hope that these latest revelations are a wake-up call for Congress to act and repeal Section 702 or, at minimum, to require the FBI to get individual warrants, approved by a court, before beginning their backdoor searches. And while we believe current law allows our civil litigation, Congress can also remove government roadblocks by providing clear, unequivocal notice, as well as an individual remedy for those injured by any FBI or NSA or CIA violations of this right. We also hope that the FISC itself will object to merely being an administrative oversight body, and instead push for more stringent protections for peoples privacy, and pay more attention to the inherent constitutional problems of Section 702.

But no matter what, EFF will continue to push its legal challenges to the governments mass surveillance program and will work to bring an end to unconstitutional mass surveillance.

See the rest here:

Secret Court Rules That the FBI's Backdoor Searches of Americans Violated the Fourth Amendment - EFF

Editorial: FBI caught breaking the rules | Editorials – Charleston Post Courier

A federal court rightly rebuked the FBI last year for breaking the law and violating the Fourth Amendment prohibition against unreasonable searches in its use of government records of communications collected without a court warrant.

Making the court finding revealed Tuesday all the more striking was that the violations were carried out under the Trump administration, which has made quite an issue about FBI surveillance of the Trump campaign in 2016. Indeed, FBI Director Christopher Wray argued, unsuccessfully, that complying with the law would put an unacceptable administrative burden on the agency.

The finding breathes life into the contention that there may be a culture within the FBI that verges on contempt for the law. If so, it must be thoroughly stamped out.

The Justice Department appealed the secret ruling of the Foreign Intelligence Surveillance Court to a special appeals panel and rightly lost, leading to the publication this week of the heavily censored 2018 court decision.

Although the Justice Department has agreed to abide by the courts order that it keep meticulous records of any request to extract information from a secret database of millions of telephone calls and other communications, the Foreign Intelligence Surveillance Court decision raises serious questions about the agencys ability to monitor abuses.

The communications database is maintained by the National Security Agency, the nations collector of electronic communications for intelligence use. It is authorized by law, but the NSA was ordered in 2017 to purge millions of records collected in violation of the law and was only authorized to resume collection in 2018. The NSA is said to be reconsidering the usefulness of the bulk collection program, which sweeps up communications by foreign intelligence targets including those that might involve U.S. citizens and residents.

The collection process is known as upstream intelligence gathering. The use of the data by the CIA, FBI and other federal intelligence agencies is known as downstream intelligence work. The downstream exploitation of the data is supposed to be governed by the Fourth Amendment and require a court order before communications by U.S. citizens and residents can be queried by intelligence analysts.

The intelligence court found that the FBI was the only downstream data user not in compliance with a new law requiring detailed record-keeping. It cited examples of FBI abuse that included asking for data on all 57,000 FBI employees and contractors and the use of the database by one contractor employee to keep tabs on his relatives.

These examples may only be the tip of an iceberg of unauthorized snooping. The court found that the FBIs system for monitoring potential abuses of the communications database examined only a fraction of the occasions when the database was used by one of its employees or contractors.

Until better controls are put in place, the excessively large number of people and contractors entitled to query the database is bound to make it hard for the FBI to verify that it is complying with the law and the Constitution as directed by the intelligence court.

That should be an issue for Congress as it considers renewing a different surveillance authority known as Section 215 of the Patriot Act that expires at the end of December. It allows the government to obtain a secret court order requiring telephone companies to hand over any records or other tangible thing if deemed relevant to international terrorism or undefined clandestine intelligence activity.

The Foreign Intelligence Surveillance Court has raised some serious red flags about the FBIs use and abuse of it surveillance authorities. Its important that the FBI follows the law and the Constitution.

See the article here:

Editorial: FBI caught breaking the rules | Editorials - Charleston Post Courier

The FISA Court’s 702 Opinions, Part I: A History of Non-Compliance Repeats Itself – Just Security

Last week, the Office of the Director of National Intelligence released three redacted opinions of the Foreign Intelligence Surveillance Court (also known as the FISA Court) and the FISA Court of Review (FISCR). In the first opinion, the FISA Court held that the FBIs procedures for accessing Americans communications that are incidentally collected under Section 702 of FISA violated both the statute and the Fourth Amendment. The government appealed, and in the second opinion, the FISCR upheld the FISA Courts decision. The FBI was forced to revise its procedures to conform with the Courts ruling, and in the third opinion, the Court approved the revised procedures.

The government will no doubt try to sell this as an oversight success story. After all, the Department of Justices audits had detected instances of FBI non-compliance with legal requirements, and the Department reported those instances to the FISA Court. The Court solicited the assistance of amici and adopted their position in significant part. It ordered remedies that the FBI is now required to implement. And all of this became public because Congress in 2015 required the disclosure of significant FISA Court opinions. The system worked, right?

I see a very different story. This is now the fourth major FISA Court opinion on Section 702 in 10 years documenting substantial non-compliance with the rules meant to protect Americans privacy. The opinion, moreover, reveals that the FBI is conducting literally millions of backdoor searchesincluding so-called batch queries that rest on the same discredited legal theory used to justify the NSAs bulk collection of Americans phone records. Despite the enormous implications for Americans privacy and the governments dismal record, the remedy suggested by amici and imposed by the Court was just more record-keeping. And the government sat on the opinion for a year, hoping for an appellate victory that would help mitigate the PR damage from disclosure.

Background: Section 702s Troubled History

To put the Courts recent opinions in context, some background is necessary. Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), passed in 2008, the National Security Agency (NSA), operating inside the United States, is authorized to collect communications of foreigners overseas for foreign intelligence purposes. No warrant is required for this collection because courts have held that foreigners have no Fourth Amendment rights. Instead, each year, the FISA Court must sign off on the procedures that govern the surveillance.

Although ostensibly targeted at foreigners, Section 702 surveillance inevitably sweeps in massive amounts of Americans communications. Recognizing the impact on Americans privacy, Congress required the NSA to minimize the sharing, retention, and use of this incidentally collected U.S. person data. But the government and the FISA Court have embraced an interpretation of minimize that is remarkably maximal. The NSA shares raw data with multiple other agenciesincluding the FBI and the CIAand all of them retain the data for a functional minimum of five years. Moreover, the FBI routinely combs through it looking for Americans communications to use in purely domestic cases, even in situations where the FBI lacks a factual predicate to open a full investigation.

In 2011, the government disclosed to the FISA Court that it had misrepresented the nature of its upstream collection activities under Section 702. (Upstream collection takes place as the communications are transiting over the Internet backbone; downstream collection acquires stored communications, usually from the servers of Internet Service Providers.) When conducting upstream surveillance, the government was acquiring, not just communications to or from the targets of surveillance, but communications that simply mentioned certain information about them (known as abouts collection). As a result, the government was acquiring packets of data containing multiple communications, some of which had nothing to do with the target. This included tens of thousands of wholly domestic communications.

The Court was not pleased to learn about this significant issue three years into the programs operation. It held that the governments handling of the data violated the Fourth Amendment, and it required the government to develop special rulesapproved by the Court in 2012for segregating, storing, retaining, and accessing communications obtained through upstream collection.

In 2015, the Court was under the impression that these rules were being followed. However, in approving Section 702 surveillance that year, it noted several incidents of non-compliance with other rules designed to protect Americans privacyincluding FBI violations of protections for attorney-client communications, a failure of access controls by the FBI, and the NSAs failure to purge certain improperly collected data. Once again, the Court expressed displeasure at being notified of infractions long after they occurred.

In 2016, the FISA Court learned that the NSA had been violating the rules established in 2012. Because those rules were designed to remedy a Fourth Amendment violation occurring since the start of the program, the NSAs non-compliance meant that its upstream collection activities had been operating unconstitutionally for eight years. Moreover, the government did not report this issue for several months after discovering it. Unable to bring itself into compliance, the NSA made the only decision it could: In the spring of 2017, it abandoned abouts collection, which was at the root of the problem.

When Section 702 came up for reauthorization in late 2017, civil liberties advocates pointed to this troubled history. They also pointed to a growing body of case law holding that searches of government databases can, in certain circumstances, constitute a separate Fourth Amendment event. They argued that government agencies should be required to obtain a warrant before searching Section 702-obtained data for the communications of Americans (a practice formally called U.S. person queries and informally dubbed backdoor searches). They also urged Congress to ban abouts collection, lest the government attempt to resume it.

Congress rejected these proposals. Although Congress did require the FBI to obtain the FISA Courts permission to conduct U.S. person queries in a tiny sliver of cases, it blessed the vast majority of these searches, which previously had no foundation in the text of Section 702. It simply required the FBI to develop querying procedures that the FISA Court would have to approve. It also required the FBI to keep records of each U.S. person query it conducted. With respect to abouts collection, Congress required the government to obtain FISA Court approval and to give Congress advance notice before resuming the practice.

The Courts October 2018 Ruling

In March 2018, the government submitted its annual certifications and procedures to the FISA Court for its approval. In a decision dated October 18, 2018, and released last week, the FISA Court held that the FBIs minimization procedures violated both the statute and the Fourth Amendment. The Courts opinion addresses three main practices by the FBI: downstream collection of certain communications; the FBIs failure to record USP queries; and the FBIs improper use of USP queries.

Downstream collection and abouts communications. Although this section of the opinion is highly redacted, it appears that the government is engaged in a new form of downstream collection that raised a flag for the FISA Court. The Court solicited amicis advice about whether the statutory preconditions for resuming abouts collection apply to downstream collection, and whether certain activities in the governments 2018 certifications involve the acquisition of abouts communications. Amici argued that the answer to both questions was yes; the governments answer was no in both cases. The Court split the baby, holding that the statutory requirements apply to any kind of abouts collection, but that no such collection would occur under the governments certifications.

The heavy redactions make it difficult to assess the significance of this part of the opinion. However, on its face, the definition of abouts collectionbasically, anything other than a communication to or from the targetshould not be difficult to apply. It is worrisome that the government and amici reached different conclusions about whether a certain form of collection merited the label abouts. The uncertainty strongly supports a suspicion civil liberties advocates have held for some time: that the selectors the government uses to identify the communications to be collected are not necessarily unique identifiers (such as email addresses), but can sweep in people other than the intended targets (as would, for instance, IP addresses).

The statutory requirement to count U.S. person queries. In its January 2018 reauthorization of Section 702, Congress ordered the government to adopt querying procedures that included a technical procedure whereby a record is kept of each United States person query term used for a query. Instead, in the querying procedures that the FBI submitted to the FISA Court, the Bureau announced that it intends to satisfy the record-keeping requirement by keeping a record of all queriesin other words, the FBI would lump together U.S. person queries and non-U.S. person queries, without distinguishing between them.

The government defended this approach with a weak argument that the statutory text was somehow ambiguous, and that both the legislative history and policy considerations weighed against requiring the FBI to document U.S. person queries. In a refrain often heard when an intelligence or law enforcement agency is asked to devote time or resources to safeguarding civil liberties, the government claimed that requiring the FBI to figure out whether a particular investigative subject was a U.S. person would divert resources from investigative work . . . to the detriment of public safety.

The FISA Court has historically yielded to such pleas, and on this occasion, the Court seemed sympathetic. Ultimately, however, the Court concluded that it had no choice. It stated: Regardless of how persuasive the FBIs considerations may be, the Court is not free to substitute its understanding of sound policyor, for that matter, the understanding of the Director of the FBIfor the clear command of the statute. The law, the Court held, was unambiguous in its directive to count U.S. person queries.

On appeal, the FISCR upheld the Courts ruling on this question. The FISCR, however, seemed somewhat less sympathetic to the governments position. Under the FBIs querying procedures, U.S. person query term is defined as a term that is reasonably likely to identify one or more specific United States persons. This definition does not require a high level of certainty. Moreover, the procedures provide for the application of default assumptions in cases where specific information is lacking. Under these circumstances, it is hard to argue with the FISCRs assessment that counting U.S. person queries is not a burdensome substantive requirement, and that it would simply mean adding one (largely ministerial) item to the checklist that FBI personnel most likely already work through when conducting queries for investigative purposes.

Somewhat oddly, the FISCR did not resolve the other major issue on appeal: whether the FBIs repeated violations of its own querying and minimization procedures rendered those rules unlawful and unconstitutional as implemented. Those violations, and the FISA Courts failure to require an adequate remedy for them, will be the subject of Part II of this post.

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The FISA Court's 702 Opinions, Part I: A History of Non-Compliance Repeats Itself - Just Security

ACLU Sues Worthington For Arrest That Left Man With Nearly $150K In Medical Bills – WCCO | CBS Minnesota

MINNEAPOLIS (WCCO) A lawsuit against a southern Minnesota city and its police department alleges that excessive force was used in an arrest earlier this year, leaving a man with several broken bones and nearly $150,000 in medical bills.

The American Civil Liberties Union (ACLU) filed the lawsuit Monday against the city of Worthington and its police department. The suit names the police chief, Troy Appel, officer Mark Riley, and Rileys friend, Evan Eggers, who was on a ride-along at the time of the arrest.

The victim is identified as Kelvin Francisco Rodriquez, an Iowa man who works in Worthington.

During the arrest on Jan. 12, he suffered four broken ribs and internal bleeding due to lacerations to his pancreas and liver, according to the ALCU. The lawsuit alleges that he told officers multiple times that he needed to go to a hospital but they refused to take him to one for several hours.

By the time Rodriquez got medical attention, he had to be airlifted to a hospital in South Dakota, where he was hospitalized for five days, incurring close to $150,000 in medical bills.

The lawsuit alleges that Rodriquezs Fourth Amendment rights were violated by the use of excessive force and his Fourteenth Amendment rights were violated by the delay in medical treatment.

Dashcam Video Of Kelvin Rodriquezs Arrest

In a statement released by the ACLU, Rodriquez says hes speaking about what happened to him because its happening to other people in the Worthington.

As a human being, I ask that the police be held accountable for not adequately doing their job and respecting me as a human being, he said. My wife and children saw me going in and out of life and death. I think it is fair to ask for justice.

According to the lawsuit, Rodriquezs arrest came after he noticed a squad car trailing him and, out of fear of how police treat minorities in Worthington, tried to avoid them by turning into a parking lot.

The squad car followed Rodriquez into the lot, where he quickly parked his car and started to run. But when the squad cars emergency lights flashed, he stopped and put his hands up. This can be seen in police dashcam video.

Riley ordered Rodriquez to get on the ground and put his hands behind his back. While out of view of the dashcam video, Riley places his knee and full body weight on Rodriquezs ribs, the lawsuit alleges. Rodriquez can be heard on the video moaning in pain.

The lawsuit is seeking damages to be paid to Rodriquez, although no specific dollar amount was listed.

This is the second time that the ACLU has sued Worthington and its police department over what it claimed was the use of excessive force. In 2016, Anthony Promvongsa was pulled over by a drug task force and punched and kneed while he was still seat-belted in his car.

That case ended with a $60,000 settlement for Promvongsa, and the city agreeing to a number of policy changes dealing with use of force.

Among the policy changes was a requirement for Worthington officers to document when they see officers using force. The lawsuit filed on behalf of Rodriquez accuses the police department of not following this and other policies related to use of force.

WCCO reached out to the Worthington Police Department for comment.

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ACLU Sues Worthington For Arrest That Left Man With Nearly $150K In Medical Bills - WCCO | CBS Minnesota

Is smell enough to justify search warrant? Bloomfield Township man appealing decision on marijuana case – The Oakland Press

Nearly a year after voters approved adult use of recreational marijuana, Oakland County resident Kevin John Carlson continues to fight a possession/intent to deliver case, which he believes stems from a search warrant that should never have been granted.

Carlson, 30, was charged in early 2018 after police searched his Bloomfield Township home and reportedly found marijuana and other evidence months prior to cannabis being legalized in Michigan. At the time Carlson was a registered marijuana patient and caregiver, legally allowed to have a certain amount of cannabis.

The magistrate who issued the search warrant based on police reportedly smelling marijuana outside the home was wrong to do so because it wasnt based on probable cause, Carlson claimed.

When police executed the search warrant, they reportedly found much more than the allowable amounts 155 pounds of marijuana in packages and jars, scales, $82,000 in cash and other evidence to pin the possession and drug delivery/manufacturing charges on Carlson. Yet Carlsons trial in Oakland County Circuit Court was put on hold last year while he appealed Judge Phyllis McMillens ruling there was no issue with the search warrant, and the evidence that turned up was admissible.

Carlsons claim that the smell alone wasnt sufficient for a search warrant recently got shot down by the Michigan Court of Appeals, who sided with McMillens decision not to quash the evidence.

The opinion, in part, states: the strong odor of marijuana that the officer smelled provided a substantial basis to infer a fair probability that contraband or evidence of a crime would be found inside the defendants home.

The court further found that the 2008 Michigan Medical Marihuana Act didnt shield Carlson from the search, stating the police were not obligated to determine, before obtaining a search warrant, the legality of the marijuana-related activities inside the defendants home and whether the defendants activities complied with the MMMA.

The opinion was signed by COA Judges Mark J. Cavanaugh, Jane M. Beckering and Michael F. Gadola.

However, Carlsons defense attorney Michael Komorn said the judges failed to address if current Michigan marijuana law can be applied retroactively and are wrong in not considering its relevancy, as well as the state reclassification of medical marijuana as a Schedule II drug permitted for some use. Carlsons case is next headed to the Michigan Supreme Court for consideration, which earlier had remanded it to the Court of Appeals.

This case is important for Fourth Amendment issues (regarding protection against unreasonable search and seizure) for constitutional reasons, Komorn said, and for the citizens of Michigan...just because somebody is doing something suspicious, thats not enough for probable cause.

Komorn also said with police often relying on smell in dealing with citizens and the law regarding marijuana and alcohol, for example how this case ultimately plays out will have pervasive impact.

People have a right to know what to expect...certainly, they should have a definite answer, he said.

It will likely be several months or more before the Supreme Court decides whether or not to take Carlson's case. That keeps it pending in Oakland County Circuit Court.

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Is smell enough to justify search warrant? Bloomfield Township man appealing decision on marijuana case - The Oakland Press

Former court reporter’s theft trial pushed back again – Kokomo Perspective

Its been more than four years since an investigation was launched into whether a former Howard Superior II employee illegally overcharged for work, allegedly accruing nearly $10,000 in illegal payments.

The case against former Howard Superior II court reporter Rachael Roberts has moved at a glacial pace since it began in the investigative stages in early 2015. Some time later, in May 2017, three level D felony charges of theft were filed for the alleged overbilling of transcription work, which by law is limited to a certain amount.

In total, investigators claimed Roberts overbilled by $9,476 for three transcriptions. As the case has dragged on after being assigned to a special prosecutor and languished in Boone Superior Court I after being reassigned to the court, yet another trial date has been pushed back in the case. The development came as Roberts defense attorney also moved to suppress evidence in the case.

Until just a few weeks ago, the case against Roberts finally was set to be heard before a jury in Boone County on Wednesday. That trial date represented the fourth for the case, and the date even had been emblazoned with no continuances in online records. That is before the court, according to court records, moved to cancel the trial due to concerns as to whether enough time [had] been allotted for this trial and to hear substantive pre-trial motions.

The case originally was scheduled to go to trial on April 18, 2018.

A partial reason for the delay may be due to a motion to suppress filed by Roberts attorney. In that motion her attorney claimed the former court reporters rights were violated by investigators.

According to the filing, on Feb. 13, 2015, police searched Roberts Russiaville home as well as her work premises in Superior II. Then investigators applied for a second warrant a few days later to search Roberts bank records. In the motion to suppress its argued that it does not appear that the warrant or subpoena was issued for a search of [Roberts] bank records and a return was not prepared for that warrant either.

The former court reporters attorney, in the filing, goes on to argue that the searches were warrantless, violating her Fourth Amendment rights. The filing states that police elicited statements from Roberts in violation of her Miranda and Fifth Amendment rights and that, because the warrants did not specifically list items to be searched for and seized, they were overly broad.

Furthermore, its claimed the warrants were not issued by a neutral and detached magistrate. This claim references Howard Superior I Judge William Menges, who issued the search warrants, and its argued that since he was a witness in the investigation, initiated the investigation in part, and also is related to Roberts, then that constitutes a violation of Roberts Fourth Amendment rights.

Together Howard County Auditor Martha Lake and Menges played a role in bringing the alleged overbillings to the attention of investigators. As such, Roberts defense counsel requested that all items seized, observations, and statements gathered during the execution of the search warrants be suppressed.

The court granted the motion to supress last week, but the courts decision could not be procured prior to deadline. The trial is set now for Feb. 24, 2020.

Read more here:

Former court reporter's theft trial pushed back again - Kokomo Perspective

My Family Story of Love, the Mob, and Government Surveillance – The Atlantic

On June 16, 1975, when I was 12 years old, my mother, Brenda, married Charles Chuckie OBrien, who a few weeks later would become a leading suspect in the notorious disappearance of Jimmy Hoffa, the former president of the Teamsters union.

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Chuckie had known Hoffa since he was a boy, loved him like a father, and was his closest aide in the 1950s and 60s, when Hoffa was the nations best-known and most feared labor leader. Soon after Hoffa went missing, on July 30, 1975, the FBI zeroed in on Chuckie. Chuckie had been by Hoffas side during Attorney General Robert F. Kennedys long pursuit of Hoffa for Mob ties and union corruption, and in 1967 it was Chuckie who had accompanied Hoffa when his boss reported to federal marshals and began a nearly five-year prison term. But in late 1974, Chuckie and Hoffa had had a falling out, and a slew of circumstantial evidence connected Chuckie to the disappearance. The FBI quickly concluded that Chuckie had picked up Hoffa and driven him to his deatha theory that has currency to this day, at least in the public mind.

The government never proved Chuckies involvement, and Hoffas remains have never been found. But the Hoffa investigation enveloped Chuckie and eventually ruined his life. In the midst of this maelstrom, Chuckie and I grew close. He formally adopted me when I was 13, and found time despite his legal troubles to give me the love and attention I had never received from my biological father. I revered Chuckie in my teens. The wise guys I met through him were kind and, to my young eyes, upright gentlemen. And it was thrilling to be associated with the Teamsters union in an eratypified by C. W. McCalls hit song Convoy and the adventures of Burt Reynolds in Smokey and the Banditthat glorified trucker defiance of authority.

When I left home for college, I read for the first time books that confidently pinned Hoffas disappearance on Chuckie. I also came to understand that the Mafia was real and dangerous, and that Chuckie had a history of criminal acts ranging from theft to assault. By the time I went to law school, I had grown apprehensive about Chuckies potential impact on my life. In my mid-20s I broke with him, brutally and completely. This proved to be a good career move; otherwise, I never would have obtained the security clearances I later needed for several government jobs, which culminated in a 2003 appointment by George W. Bush to be the assistant attorney general in charge of the Justice Departments Office of Legal Counsel.

It was during that Justice Department stint, more than 15 years after I renounced Chuckie, that I reconsidered some of the things he had told me in my teens about executive-branch abuses and concealments. That reconsideration would eventually lead me to seek his forgiveness and then, after years of conversations and research, to conclude that he was innocent in Hoffas disappearance. What led me down this improbable path was my work on Stellarwind, President Bushs post-9/11 anti-terrorist program of warrantless surveillance activities inside the United States, conducted by the National Security Agency, which swept up vast amounts of information about innocent Americans.

In my youth, Chuckie had spewed bile about Bobby Kennedys surveillance abuses against him, Hoffa, and their friends in organized crime. They can break every law there is, but they got backup, Chuckie would say, referring to the governments tendency to skirt the law in secret even as it enforced the law against others, and to justify its actions by claiming executive authority.

For decades, I had dismissed Chuckies assessment as uninformed and self-serving. But while working on Stellarwind, I discovered that he had been right. Executive-branch lawyers had approved the program in secret even though it was difficult to square with congressional restrictions on government surveillance. Such backup, I came to realize, was a crucial element in a recurrent pattern in the history of government surveillance: The executive branch, responsible for security, employs the latest technology against an enemy within, and in the process, it often quietly bends or breaks the law; after scandalous revelations, it secures new legislation to put the surveillance practices on a sounder legal footing; finally, a new normal is established before the cycle begins anew.

I did not know much about the history of government surveillance, or the governments accompanying abuse of the law, when I began work on Stellarwind. Much of that history, especially about the Justice Departments accommodating role, is still not widely understood.

Since the invention of the telephone and the miniature microphone, the government has used these technologies in criminal and national-security investigations to listen in on private communications without the targets knowledge. The governments appetite for the valuable information it gathers from wires, bugs, and other forms of electronic surveillance has always been insatiable. Congress and the courts have intermittently imposed legal restrictions to check the obvious threat to privacy this appetite poses. But under pressure to find and defeat various subversive forces in American society, real or imagined, the executive branch has always found secret work-arounds.

Among the early targets, I came to learn, were Nazi spies inside the United States. On December 11, 1939, three months after Hitler invaded Poland, the Supreme Court ruled that a federal statute barred the government from using evidence gleaned from wiretaps in court. Attorney General Robert Jackson quickly announced a ban on wiretapping. But President Franklin D. Roosevelt overruled Jackson after FBI Director J. Edgar Hoover complained that the ban made it too hard to meet the growing menace of spies and saboteurs on American soil. FDR acknowledged in a secret memorandum that government wiretapping is almost bound to lead to abuse of civil rights. But he concluded, unconvincingly, that the Supreme Court never intended any dictum to apply to grave matters involving the defense of the nation. Jackson acquiesced, and government wiretapping continued.

Henceforward, whenever a legal obstacle to electronic surveillance arose, Hoover would complain to his Justice Department or White House superiors about the dangers of going dark. Given the urgency of finding and defeating the enemy, these officials tended to interpret away the limits on lawful executive actiona task made easier by the fact that decisions usually were arrived at in secret, beyond judicial scrutiny.

Hoovers next need for backup concerned a different threat to national security (communism) and a different technology (microphone bugs). In the course of its investigations, the FBI often broke into homes or offices to plant bugs. In a 1954 opinion, Robert Jackson, by then a Supreme Court justice, made clear that this practice flagrantly violated the Fourth Amendments prohibition of unreasonable searches and seizures. But Hoover wrote to the attorney general at the time, Herbert Brownell Jr., to emphasize the stakes for national security should bugs be barred. Brownell then secretly authorized the FBI to resume bugging spies, saboteurs, and other subversive persons, even if that meant physical invasion of homes and offices, because considerations of internal security and the national safety are paramount.

Hoover wasnt done. In the late 50s, he wanted to extend microphone surveillance to meet a different threat from a different kind of enemy within: not foreign subversion but the domestic criminal activities of gangsters. Bugging possible foreign agents was already a legal stretch. Bugging the Mob was an even bigger stretch, because breaking in to plant bugs on suspected domestic criminals goes to the core of what the Fourth Amendment prohibits. Hoovers FBI went there anyway, based on a preposterous interpretation of Brownells questionable secret ruling. The next attorney general, William Rogers, knew what the FBI was doing and went along with it. The bugging remained hidden from the public.

Rogerss successor, Robert F. Kennedy, continued this dont ask, dont tell approach to the use of bugs as part of the campaign against organized crime. He pushed the FBI to confront the Mob more aggressively, and he eagerly consumed the fruits of Hoovers surveillance. When the bugging was finally revealed, in the mid-60s, Kennedy denied knowledge of any illegality. A great deal of evidence suggests that he was not being candid. And as the journalist Victor Navasky has noted, To the extent that Kennedy was ignorant of the FBIs bugging practices, it was an administrative failure so flagrant that Kennedy is morally chargeable with the consequences of his ignorance.

The FBI made secret recordings from the hundreds of microphones it installed during the Kennedy years. Unbeknownst to Chuckie, the FBI frequently picked him up on two of them. In early 1961, the bureau placed one of the bugs in the office of the Detroit Mafia capo Anthony Giacalone, with whom Chuckie had been close since he was a boy. It later placed a bug in the apartment of Sylvia Pagano, Chuckies mother, in Detroits riverfront Gold Coast neighborhood.

The FBI was interested in Giacalone because of his criminal activities and because he had done business with Hoffa for decades. It was interested in Pagano because she worked with Giacalone and was close to Hoffa. Pagano had introduced Hoffa to the Detroit crime family, and to Chuckie, in the early 40s. She had enormous influence with Hoffa, including as a go-between for many of the loans to the Mafia by the Teamsters pension fund in the 50s and 60s. She was also close to Hoffas wife, Josephine, as was Giacalone.

A few months after the FBI installed the Giacalone bug, the Supreme Court reiterated that such surveillance was beyond the pale. But the FBIconfident in its backup from the topignored the Courts decision. For three years, the bugs swept up the full range of conversationnot just about criminal activity but also about sex, family and health matters, political and religious opinions, and personal secrets. FBI agents transcribed the conversations with few redactions. They often summarized the transcripts in memorandums that misleadingly attributed the information to an informant and urged care in dissemination. These documents were kept in a secret file called June that was unknown to the public and little known within the bureau.

I have read thousands of pages of the June transcripts and memorandums from the Giacalone and Pagano bugs. The FBI gave the documents to the House Select Committee on Assassinations for its 197679 investigation into the Mobs possible involvement in the killing of John F. Kennedy. Many of them are available today through the Mary Ferrell Foundation, which has a repository of documents related to JFKs assassination. To read the June transcripts is to descend into an intimate, vulgar, gossipy, and sordid realm of unguarded conversations that took place under an assumption of privacy. Chuckie had always spoken of Jimmy and Josephine Hoffas relationship to each other, and to his mother and Giacalone, as one of mutual love and friendship. But the conversations picked up by the bugs reveal a darker reality.

To give one example: The bugs expose Josephine Hoffas mental-health challenges and ghastly struggles with addiction. Hoffa was perpetually on the road during this periodunion business, criminal trialsand was callously indifferent to his wifes condition. Pagano was given responsibility for trying to control Josephines alcoholism, but she grew bitter as Josephine became more and more difficult to manage. To fight her desperate loneliness, Josephine had a fiery affair with a low-level Detroit mobster. Just after it ended, Giacalone plotted with his brother, Vito, to rob the safe in Hoffas Washington, D.C., apartmentHoffa was away on trial, in Tennesseewhile Vito and Josephine zoop it up. That plot failed when Giacalone could not get into the safe. But he succeeded a few months later in robbing Hoffas Miami Beach apartment while Pagano and a drunken Josephine were out to dinner.

These are but a few scraps of the information about Hoffas circle that the FBI gleaned from the thousands of hours of June recordings. The agents learned much, much more, because Josephine, Pagano, and Giacalone spent a lot of time togetheroften with Chuckiein the bugged rooms. They also communicated almost daily with Hoffa, usually through Chuckie, and often discussed, with the FBI listening in, what Hoffa was saying, thinking, and doing. Hundreds of other organized-crime figures and associates in Detroit and around the country involuntarily disclosed similarly intimate information to the FBI via illegal bugs in their homes and offices.

The bugs used on mobsters in the late 1950s and early 60s are a mostly forgotten slice of decades of surveillance abuses. Reform finally came after the FBIs practices leaked to the press in the mid-60s. The first element of reform was the Justice Departments acknowledgment of the bureaus bugging and wiretapping, and its pledge to the Supreme Court to review pending cases for reliance on illegal surveillance.

My stepfather was an improbable beneficiary. Chuckie had been convicted in 1965 of stealing goods from a U.S. Customs warehouse in Detroit. But in 1967, after thenSolicitor General Thurgood Marshall revealed that the FBI had overheard Chuckie talking to his lawyer about his case in Giacalones officea possible violation of his constitutional right to counselthe Supreme Court vacated his conviction and ordered a new trial, assuring Chuckie a tiny place in the annals of jurisprudence.

Later that year, the Court dramatically expanded Fourth Amendment protections against electronic wiretapping. Then, in 1968, Congress passed new legislation on the use of wiretaps and bugs. Authorization now required probable cause of a crime, a judicial warrant, and other procedures, and it criminalized electronic interception in violation of these rules. It put real constraints on investigations. But it also allowed the government, for the first time, to use information gained from electronic surveillance as evidence in federal trials. Congress thus legitimized what had been legally dubious surveillance practices, and on balance empowered the executive branch. The Justice Department would later use this lawful means of surveillance as its main tool to diminish the Mobs power.

This transformation of American surveillance law was followed, in 1975, by a comprehensive vetting of U.S. intelligence practices by a Senate select committee chaired by Senator Frank Church. The Church Committees final report exposed decades of electronic-surveillance abuses by the government, along with extensive evidence of illegal break-ins, mail opening, subversion campaigns, drug testing, and free-speech violations. Governmental officialsincluding those whose principal duty is to enforce the lawhave violated or ignored the law over long periods of time and have advocated and defended their right to break the law, the committee concluded. In other words, the violators had backup.

The courts and Congress still had work to do after 1975. One outstanding issue was whether the president could continue to order electronic surveillance without judicial approval in national-security cases, as FDR had done in 1940. Congress addressed that issue in the 1978 Foreign Intelligence Surveillance Act (FISA), a landmark law that required electronic surveillance of suspected foreign agents to be authorized by a special court. This was the law that I would confront a quarter century later, when I began poring over cases and documents related to Stellarwind.

Stellarwind fit a familiar pattern. After 9/11, government officials faced a deadly new foe they feared they could not find and stop using traditional tools. Al-Qaeda had been empowered by technological developments, especially ones that enabled the growth of various new forms of global communications. But these and other innovations also empowered the U.S. intelligence community to surveil in new, more robust waysespecially because it had what thenCIA Director Michael Hayden described in 2006 as a tremendous home field advantage in intercepting global communications. In October 2001, President Bush authorized the NSA to collect targeted international telephone and email conversations of citizens and noncitizens, as well as vast amounts of telephone and email metadata. Government lawyers signed off on the program in secret, even though the collections lacked the judicial approval that FISA seemed to require.

When I arrived at the Justice Department, in October 2003, Stellarwind had been examined and reapproved by the Office of Legal Counsel every six weeks or so for two years. I inherited the responsibility of examining its legality at regular intervals. While I was doing so, I thought often about Chuckieespecially when I stumbled onto the 1967 decision that had vacated his criminal conviction.

While I was working one early-December afternoon, Jim Baker, a career government lawyer and surveillance-law expert, came by to help. Baker had not been involved in the initial approval of Stellarwind, in 2001, and when hed found out about it, he wasnt pleased.

Take a look at this, Baker said, handing me a piece of paper with scribbled signatures. It was a one-page memorandum, dated October 10, 1963, in which Attorney General Robert Kennedy had approved electronic surveillance of Martin Luther King Jr.surveillance that yielded information the FBI would use to try to destroy Kings marriage and pressure him to abandon the civil-rights movement. At the time, I was astonished to learn that Kennedy had authorized the surveillance, without a warrant and without limit, and that he had done so based on a factually unsupported link between King and communism.

From July/August 2002: The FBI and Martin Luther King

This is why we have FISA, Baker explained, jabbing his finger at the document. He saw the King surveillance as a cautionary tale about the dangers of government corner-cutting. If they think FISA is cumbersome or too slow, we can get rid of it, he said.

I didnt want to go back to those days. But I also didnt cherish the idea of upending an intelligence program that the president had deemed vital and that the Justice Department had approved since 2001, especially given that the government at the time feared another attack. After much agonizing, I concluded in March 2004 that prior Stellarwind approvals rested on a flawed understanding of how the program worked and what the law required. After a complex analysis, I disapproved the parts of the program for which I found no plausible legal support, but I upheld the parts I thought could be supported by plausible arguments.

My decision against parts of the program provoked a now-famous constitutional clash between the Justice Department and the White Housea clash that played out in part at the foot of thenAttorney General John Ashcrofts bed in the intensive-care unit at George Washington University Hospital. President Bush initially decided to continue Stellarwind despite the Justice Departments objections. But in the face of threatened resignations by thenDeputy Attorney General James Comey and thenFBI Director Robert Mueller, among others (myself included), he changed his mind and accepted the departments proposed narrowing of the program.

I was later praised by some for the steps I took in revising Stellarwind, and for standing up to the White House. Others criticized the parts of my legal opinion that approved portions of the program. With 15 years of hindsight, I dont think I would do anything differently, given the context back then. But the critics had a point, especially regarding my reliance on the presidents war and national-security powers to skirt the statutory requirements in FISA. My argument traced its pedigree to Roosevelts overruling of Jackson so that Hoover could continue looking for German spies. In fact, my opinion explicitly cited the Roosevelt precedent.

Chuckies complaints about illegal government surveillance and Justice Department double standards turned out to be valid, and they haunted me as I did my work. Especially because the person providing backup for a secret surveillance program was now me.

Amy Zegart: In the deepfake era, counterterrorism is harder

My work on Stellarwind focused on how the program operated and what the law required. I barely considered the harms of undisciplined government surveillance beyond its possible illegality. But a decade later, talking with Chuckie about the Hoffa case, I did.

A lead suspect in Hoffas disappearance in addition to Chuckie was Anthony Giacalone. Hoffa believed he was meeting his old friend for lunch in suburban Detroit on the day he disappeared, and the FBI suspected that Giacalone masterminded the crime to prevent Hoffa from reassuming control over the Teamsters union, which the Mob had infiltrated ever more deeply in the late 1960s, while Hoffa was in prison. The government could never prove its case. So it convicted the suspects (including Giacalone and Chuckie) of crimes unrelated to the disappearance, hoping to pressure them into talking. It used leaks and misinformation toward that same end.

One government leak emerged a year after Hoffa disappeared. On August 1, 1976, the Detroit News launched a three-day front-page series based on information gleaned from the Giacalone and Pagano bugs. The stories described a supposed Detroit Mafia plot to murder Hoffa in the early 60s; they explained the Detroit familys inner workings; and they included information about Josephine Hoffas alcoholism and the Giacalones plot to rob Hoffas Washington safe. The News never mentioned that the bugs had been illegal and a gross invasion of privacy, and it never paused to note that publication of this material compounded the problem. The Hoffa story was too big, the Mafia too unsympathetic, and the details too spicy. No one was going to complain about what the newspaper had done.

Years later, I sought Chuckies forgiveness for my two-decade rupture, and he accepted me back into his life without qualification, rancor, or drama. Our subsequent conversations led me to question the still-prevalent conventional wisdom that he had had a hand in killing Hoffa. Chuckies supposed betrayal of Hoffa destroyed his reputation and, more devastating to him, stained his honor. In my own investigations, I learned that the circumstantial case against Chuckie was full of holes, that the government had not disclosed evidence that cast doubt on his guilt and implicated others, and that FBI agents and government lawyers who had long worked the case had concluded that he was innocent. Indeed, in July 2013 the government was on the verge of giving Chuckie a letter of exoneration, only to renege in order to avoid political heat.

The Detroit bugs came up one afternoon in 2015 when Chuckie and I were discussing the Hoffa disappearance at his home in Florida, where he lives today with my mother. He was sitting uncomfortably in a recliner at age 82, wearing a medical boot to protect his diabetes-damaged left foot. When I asked him about the 1976 Detroit News feature, Chuckie gave me his usual rejoinder to bad news from the government. The FBI made all that bullshit up, he said. They can write down anything they want for the papers.

This claim was often sound, since the government had, I discovered, leaked a lot of false and misleading information about Chuckie over the years, especially early in the investigation of the Hoffa disappearance. But the newspaper stories contained accurate information, if illegitimately gained. He knew it, and I knew it too: I possessed the transcripts on which the stories were based, and many more.

I had long worried that showing Chuckie the June transcripts would upset him, because they painted him and his heroesHoffa, Giacalone, and his motherin a dishonorable light. They would also vividly remind him of one of the worst periods of his life, when he was for the first time trapped between what he described as his labor side (loyalty to Hoffa) and his Sicilian side (loyalty to the Mob).

In deciding whether to tell Chuckie that I possessed the June transcripts, I imagined how my beliefs about family and friends, and their relationships with one another and with me, would change if I encountered years of secret recordings of their unguarded conversations. I also tried to imagine how painful it would be to read my own unwary conversations, which would not always comport with my sentimentalized sense of self and of others. And I tried to contemplate how painful it would be to read and discuss ugly truths so many years after events in my life had played out.

In thinking about this, I came to appreciate more fully the evils inherent in the governments buggingthe original surveillance, the archival permanence, and the periodic revelation of the content. It wasnt just the chilling effect on Chuckies freedom of thought, belief, and speechan effect that stretched back decades, to the 1950s, when he first began to suspect that he was under surveillance. It was also, more painfully, the violence against his intimate spaces and relationships, and the annihilation of the stories he told himself and the world about these spaces and relationships, and thus of his power to define and shape his life.

We tend not to take these types of harm seriously when we consider bugs planted to gather evidence against Mob figures. We tend to think such people dont deserve privacy, because they belong to an organization whose mission is to violently defy the legal system. Even the Church Committee, which railed against the abuse of government surveillance, barely mentioned the massive surveillance program against the Mob, although that program was more clearly illegal than most of the other activities the committee condemned.

But the privacy harms are the same whether the target is guilty or innocent, bad or good. The Fourth Amendment of the Constitution accepts reasonable intrusions on private spaces in the name of law enforcement and national security. Yet harms remain present, a trade-off even for lawful government surveillance, which the Detroit bugs were not.

My qualms did not prevent me, that afternoon in Florida, from telling Chuckie that I had the transcripts on which the leaks were based. He asked to see them. I gave him one that showed that his mother had plotted with Giacalone to rob Hoffa.

Chuckie read with a blank expression for two minutes. Then he winced as if he had broken a tooth, and threw the papers across the room. I dont want to read this shit, he said, and I dont want to talk about it.

I was not surprised by this reaction. Chuckie was confronting evidence that shattered his constructed worldview. Practically everyone on the tapes viewed the powerful Hoffa in crass transactional terms. They wanted a loan, or help with a legal problem, or his money, or more of his time. Or they wanted to push him aside, or take advantage of him, or even knock him off. Hoffa was often treated with disrespect or disdain.

But not by Chuckie. In the thousands of pages of transcripts I read, no one displayed more affection for Hoffa than Chuckie did. In 1963, just after Hoffa was indicted on charges that would eventually send him to prison, Chuckie complained angrily to his mother that some members of the Teamsters executive board were jockeying to force Hoffa out. They dont care about Hoffa; they dont care if Hoffa lives or dies, Chuckie lamented to his mother in her apartment, at 6:04 p.m. on Thursday, June 13, 1963, as FBI agent Gerald R. McVittie illegally listened in.

Despite the secrecy of illegal government surveillance in the early 1960s, rumors of government snooping abounded at the time and sparked feverish concern about Big Brother. Newspapers and magazines were filled with stories about miniature microphone devices, radio transmitters, and other examples of what Supreme Court Justice Potter Stewart described in 1961 as frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society.

In this milieu, Jimmy Hoffa believed that the FBI tapped his phone, opened his mail, and beamed electronic listening devices on him from half a mile away, aided by invisible powder they had rubbed onto his clothes, as Ralph and Estelle James recounted in their 1965 book about Hoffa. Whether the government illegally surveilled Hoffa himself (as opposed to just his associates) remains a contested historical question. But until the day he went to jail, in March 1967, Hoffa never stopped speaking publicly about the dangers of surveillance.

In the early 1960s, the paranoid Hoffa asked Chuckie to buy thousands of copies of George Orwells 1984 and distribute them to union locals around the country. Some of these poor guys, the only thing they knew was how to drive a truck or work at a warehouse, Chuckie told me. They didnt have the knowledge of the electronic shit. Mr. Hoffa wanted them to read that book and said that this is whats going to happen to not only us but to everybodyand exactly what hes predicted has happened.

Chuckie is basically right about Hoffas prediction. But there are several differences between today and the era in which Chuckie was secretly surveilled.

First, todays threats to privacy come not only from the government but also from the private sectorfrom Facebook, Google, Amazon, and the hundreds of other platforms, apps, and aggregators to which we daily turn over our most intimate secrets.

Second, the governments surveillance power has grown unfathomably since the 1960s. The frightening paraphernalia from six decades ago are toys compared with the redoubtable tools that allow the government to watch and record our movements and communications, and that enable it to store almost limitless amounts of data on its own or to piggyback on the masses of data that we volunteer to private firms.

And third, Congress has ratified and legitimated what were once legally tenuous surveillance techniques. It did so after the executive branch convinced legislators that the techniques were necessary for law enforcement and national security, but it imposed various legal constraints on their use. Congress had taken such steps in the late 1960s for domestic criminal investigations. It did basically the same for foreign threats, broadly conceived, first in the FISA law of 1978; then again in 2008, following public revelations about Stellarwind. Congress acted a few times when Barack Obama was presidentincluding after the intense controversy sparked by the thenNSA contractor Edward Snowdens 2013 leak of thousands of highly classified government documents about secret surveillance practicesand acted most recently in January 2018, a year into Donald Trumps presidency.

Jack Goldsmith: The cost of Trumps attacks on the FBI

The result of these developments is yet another new normal in which the government is constrained in certain respects but citizens are far more exposed to lawful government surveillance than before. This latest new normal, like earlier ones, will not prove stable. Technology develops apace. Sensors will soon be placed on practically everything. Facial-recognition and other biometric-identification techniques, along with drone and satellite surveillance, will become commonplace and extraordinarily discerning. Data-mining and pattern-detection tools, enhanced by artificial intelligence, will grow ever more powerful.

If history is a guide, the government will perceive a security advantage in using these and other tools in new ways to watch us and to predict and preempt our behavior. It will sometimes deploy the tools in secret, despite legal impediments, in order to prevent calamities threatened by new foes, many of whom will themselves be empowered by technological change. We will be outraged by the seeming excess when we find out. But the outrage will dissipate. Except in the most extreme cases of abuse or fecklessness, Congress will legalize the surveillance practice on the condition, mainly, of new procedural restraints. And we will adjust to our more naked selves.

This is a depressing conclusion for many, but it is an inevitable one. The executive branch does what it thinks it must, including conduct robust surveillance, to meet our demands for safety. The technology of surveillance races ahead of the law of surveillance, which tries to catch up in spurts, and often does an admirable job of curtailing old abuses. But the law cannot eliminate ever-growing threats, and security is elemental. And so the cycle recurs.

This essay is adapted from Jack Goldsmiths new book, In Hoffas Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth. It appears in the November 2019 print edition with the headline Jimmy Hoffa, My Stepfather, and Me.

Read the original here:

My Family Story of Love, the Mob, and Government Surveillance - The Atlantic

FBI Carried Out Thousands of Unconstitutional Searches of NSA Archives – Democracy Now!

In the United States, the FBI has carried out thousands of unconstitutional, warrantless searches of the National Security Agencys vast computer archives including the protected personal data of U.S. citizens and residents. Thats according to a ruling last October by the secretive Foreign Intelligence Surveillance Act Court that was declassified this week. In the partially redacted ruling, Judge James Boasberg determined the FBI failed to meet minimum legal standards to protect peoples Fourth Amendment rights to privacy. On one day alone in December 2017, the FBI illegally queried the NSAs database nearly 7,000 times using peoples Social Security numbers.

Excerpt from:

FBI Carried Out Thousands of Unconstitutional Searches of NSA Archives - Democracy Now!

Secret Court Rules That the FBI’s Backdoor Searches of Americans Violated the Fourth Amendment – EFF

But the Court Misses the Larger Problem: Section 702s Mass Surveillance is Inherently Unconstitutional

EFF has long maintained that it is impossible to conduct mass surveillance and still protect the privacy and constitutional rights of innocent Americans, much less the human rights of innocent people around the world.

This week, we were once again proven right. We learned new and disturbing information about the FBIs repeated and unjustified searches of Americans information contained in massive databases of communications collected using the governments Section 702 mass surveillance program.

A series of newly unsealed rulings from the federal district and appellate courts tasked with overseeing foreign surveillance show that the FBI has been unable to comply with even modest oversight rules Congress placed on backdoor searches of Americans by the FBI. Instead, the Bureau routinely abuses its ability to search through this NSA-collected information for purposes unrelated to Section 702s intended national security purposes.

The size of the problem is staggering. The Foreign Intelligence Surveillance Court (FISC) held that the FBI has conducted tens of thousands of unjustified queries of Section 702 data. The FISC found that the FBI created an unduly lax environment in which maximal use of these invasive searches was a routine and encouraged practice.

The court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for peoples communications

But as is too often the case, the secret surveillance courts let the government off easy. Although the FISC initially ruled the FBIs backdoor search procedures violated the Fourth Amendment in practice, the ultimate impact of the ruling was quite limited. After the government appealed, the FISC allowed the FBI to continue to use backdoor searches to invade peoples privacyeven in investigations that may have nothing to do with national security or foreign intelligenceso long as it follows what the appeals court called a modest ministerial procedure. Basically, this means requiring FBI agents to document more clearly why they were searching the giant 702 databases for information about Americans.

Rather than simply requiring a bit more documentation, we believe the court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for peoples communications.

Ultimately, these orders follow a predictable path. First, they demonstrate horrific and systemic constitutional abuses. Then, they respond with small administrative adjustments. They highlight how judges sitting on the secret surveillance courts seem to have forgotten their primary role of protecting innocent Americans from unconstitutional government actions. Instead, they become lost in a thicket of administrative procedures that are aimed at providing thin veil of privacy protection while allowing the real violations to continue.

Even when these judges are alerted to actual violations of the law, which have been occurring for more than a decade, they retreat from what should now be clear as day: Section 702 is itself unconstitutional. The law allows the government to sweep up peoples communications and records of communications and amass them in a database for later warrantless searching by the FBI. This can be done for reasons unrelated to national security, much less supported by probable cause.

No amount of ministerial adjustments can cure Section 702s Fourth Amendment problems, which is why EFF has been fighting to halt this mass surveillance for more than a decade.

These rulings arose from a routine operation of Section 702the FISCs annual review of the governments certifications, the high-level descriptions of its plans for conducting 702 surveillance. Unlike traditional FISA surveillance, the FISC does not review individualized, warrant-like applications under Section 702, and instead signs off on programmatic documents like targeting and minimization procedures. Unlike regular warrants, the individuals affected by the searches are never given notice, much less enabled to seek a remedy for misuse. Yet, even under this limited (and we believe insufficient) judicial review, the FISC has repeatedly found deficiencies in the intelligence communitys procedures, and this most recent certification was no different.

Specifically, among the problems the FISC noticed were problems with the FBIs backdoor search procedures. The court noted that in 2018, Congress directed the FBI to record every time it searched a database of communications collected under Section 702 for a term associated with a U.S. person, but that the Bureau was simply keeping a record of every time it ran such a search on all people. In addition, it was not making any record of why it was running these searches, meaning it could search for Americans communications without a lawful national security purpose. The court ordered the government to submit information, and also took the opportunity to appoint amici to counter the otherwise one-sided arguments by the government, a procedure given to the court as part of the 2015 USA Freedom Act (and which EFF had strongly advocated for).

As the FBI provided more information to the secret court, it became apparent just how flagrant the FBIs disregard for the statute was. The court found no justification for FBIs refusal to record queries of Americans identifiers, and that the agency was simply disobeying the will of Congress.

Even more disturbing was the FBIs misuse of backdoor searches, which is when the FBI looks through peoples communications collected under Section 702 without a warrant and often for domestic law enforcement purposes. Since the beginning of Section 702, the FBI has avoided quantifying its use of backdoor searches, but we have known that its queries dwarfed other agencies. In the October 2018 FISC opinion, we get a window into just how disparate the number of FBIs searches is. In 2017, the NSA, CIA and National Counterterrorism Center (NCTC) collectively used approximately 7500 terms associated with U.S. persons to query content information acquired under Section 702. Meanwhile, the FBI ran 3.1 million queries against a single database alone. Even the FISC itself did not get a full accounting of the FBIs queries that year, or what percentage involved Americans identifiers, but the court noted that given the FBI's domestic focus it seems likely that a significant percentage of its queries involve U.S.-person query terms.

The court went on to explain that the laxand sometimes nonexistentoversight of these backdoor searches generated significant misuse. Examples reported by the government included tens of thousands of batch queries in which the FBI searched identifiers en masse on the basis that one of them would return foreign intelligence information. The court described a hypothetical involving suspicion that an employee of a government contractor was selling information about classified technology, in which the FBI would search identifiers belonging to all 100 of the contractors employees.

As the court observed, these compliance issues demonstrated fundamental misunderstandings about the statutory and administrative limits on use of Section 702 information, which is supposed to be reasonably likely to return foreign intelligence information. Worse, because the FBI did not document its agents justifications for running these queries, it appears entirely possible that further querying violations involving large numbers of U S.-person query terms have escaped the attention of overseers and have not been reported to the Court.

With the benefit of input from its appointed amici, the FISC initially saw these violations for what they were: a massive violation of Americans Fourth Amendment rights. Unfortunately, the court let the FBI off with a relatively minor modification of its backdoor search query procedures, and made no provision for those impacted by these violations to ever be formally notified, so that they could seek their own remedies. Instead, going forward, FBI personnel must document when they use U.S. person identifiers to run backdoor searchesas required by Congressand they must describe why these queries are likely to return foreign intelligence. Thats it.

Even as to this requirement which was already what the law required -- there are several exceptions and loopholes. This means that at least in some cases, the FBI can still trawl through massive databases of warrantlessly collected communications using Americans names, phone numbers, social security numbers and other information and then use the contents of the communications for investigations that have nothing to do with national security.

It is disturbing that in response to widespread unconstitutional abuses by the FBI, the courts charged with protecting peoples privacy and overseeing the governments surveillance programs required FBI officials to just do more paperwork. The fact that such a remedy was seen as appropriate underscores how abstract ordinary peoples privacyand the Fourth Amendments protectionshave become for both FISC judges and the appeals judges above them on the Foreign Intelligence Court of Review (FISCR).

But the fact that judges view protecting peoples privacy rights through the abstract lens of procedures is also the fault of Congress and the executive branch, who continue to push the fiction that mass surveillance programs operating Section 702 can be squared with the Fourth Amendment. They cannot be.

First, Section 702 allows widespread collection (seizure) of peoples Internet activities and communications without a warrant, and the subsequent use of that information (search) for general criminal purposes as well as national security purposes. Such untargeted surveillance and accompanying privacy invasions are anathema to our constitutional right to privacy and resembles a secret general warrant to search anyone, at any time.

The Founders did not fight a revolution to gain the right to government agency protocols

Second, rather than judges deciding in specific cases whether the government has probable cause to justify its surveillance of particular people or groups, the FISCs role under Section 702 is relegated to approving general procedures that the government says are designed to protect peoples privacy overall. Instead of serving as a neutral magistrate that protects individual privacy, the court is several steps removed from the actual people caught up in the governments mass surveillance. This allows judges to then decide peoples rights in the abstract and without ever having to notify the people involved, much less provide them with a remedy for violations. This likely leads the FISC to be more likely to view procedures and paperwork as sufficient to safeguard peoples Fourth Amendment rights. Its also why individual civil cases like our Jewel v. NSA case are so necessary.

As the Supreme Court stated in Riley v. California, the Founders did not fight a revolution to gain the right to government agency protocols. Yet such abstract agency protocols are precisely what the FISC endorses and applies here with regard to your constitutionally protected communications.

Third, because Section 702 allows the government to amass vast stores of peoples communications and explicitly authorizes the FBI to search it, it encourages the very privacy abuses the FISCs 2018 opinion details. These Fourth Amendment violations are significant and problematic. But because the FISC is so far removed from overseeing the FBIs access to the data, it does not consider the most basic protections required by the Constitution: requiring agents to get a warrant.

We hope that these latest revelations are a wake-up call for Congress to act and repeal Section 702 or, at minimum, to require the FBI to get individual warrants, approved by a court, before beginning their backdoor searches. And while we believe current law allows our civil litigation, Congress can also remove government roadblocks by providing clear, unequivocal notice, as well as an individual remedy for those injured by any FBI or NSA or CIA violations of this right. We also hope that the FISC itself will object to merely being an administrative oversight body, and instead push for more stringent protections for peoples privacy, and pay more attention to the inherent constitutional problems of Section 702.

But no matter what, EFF will continue to push its legal challenges to the governments mass surveillance program and will work to bring an end to unconstitutional mass surveillance.

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Secret Court Rules That the FBI's Backdoor Searches of Americans Violated the Fourth Amendment - EFF

FISA Court Finds The FBI Is Still Violating The Fourth Amendment With Its Abuse Of NSA Collections – Techdirt

from the no-surprises-here dept

The NSA isn't the only agency to abuse its surveillance powers. The FBI's ability to access unminimized data harvested by the NSA has resulted in abuse after abuse, as the FBI loves to use the massive data haul to perform "backdoor searches" of its domestic targets.

This concern has been raised repeatedly, most notably by Sen. Ron Wyden, who has been calling out surveillance abuses for years -- specifically calling out these backdoor searches and hinting (strongly) that they are much more prevalent than most people believed. Nothing much has been done about it, other than multiple federal agencies suggesting they too should be put on the ever-growing list of entities with access to the NSA's multiple collections.

A FISA Court opinion released by the Office of the Director of National Intelligence (ODNI) details even more abuse of the NSA's Section 702 collections by the FBI. When you give an agency the power to dig into massive amounts of data with minimal oversight, abuses will happen. But this goes further than "inadvertent" collections or erroneous access of unminimized data. This ruling [PDF] -- first reported on by the Wall Street Journal -- shows the FBI treats sensitive collections as its personal playground.

The October 2018 court ruling identifies improper searches of raw intelligence databases by the bureau in 2017 and 2018 that were deemed problematic in part because of their breadth, which sometimes involved queries related to thousands or tens of thousands of pieces of data, such as emails or telephone numbers. In one case, the ruling suggested, the FBI was using the intelligence information to vet its personnel and cooperating sources. Federal law requires that the database only be searched by the FBI as part of seeking evidence of a crime or for foreign-intelligence information.

In other instances, the court ruled that the database had been improperly used by individuals. In one case, an FBI contractor ran a query of an intelligence databasesearching information on himself, other FBI personnel and his relatives, the court revealed.

The partially-redacted, 138-page opinion makes it clear the FBI has frequently abused its access to the NSA's surveillance collections, which include emails, phone numbers, and a host of other digital detritus. Using collections authorized only to be used for national security purposes to perform security reviews of FBI personnel is obviously contrary to the intention of the program -- a purpose that is always reiterated loudly any time someone suggests surveillance should be curtailed. This opinion vindicates Wyden's incessant demands the FBI come clean about its backdoor searches. Wyden argued the FBI abused this power frequently. This opinion makes it clear the FBI abuses its "backdoor" access to domestic data constantly.

The weirdest thing is the Trump DOJ argued in court the program the FBI abused cannot be modified without harming the security of the nation. Yep, the administration that claims the "Deep State" is out to get it showed up in court to argue the Deep State should not have its power curtailed.

The court rejected this faulty premise. It also pointed out how severely any misuse of this power contains the potential to harm dozens, if not thousands, of people. Considering the breadth of the collection, running a single improper search returns hundreds, if not thousands, of records the FBI has no business retrieving. Using the database to vet employees or perform natsec vanity searches does not comply with the restrictions on the FBI's searches, which are only supposed to return data related to criminal activity (and then only certain crimes) and/or foreign intelligence information.

As usual, Sen. Ron Wyden was the first to go on record criticizing the FBI and its backdoor searches following the release of the FISA opinion.

Last year, when Congress reauthorized Section 702 of FISA, it accepted the FBI's outright refusal to account for all its warrantless backdoor searches of Americans. Today's release demonstrates how baseless the FBI's position was and highlights Congress' constitutional obligation to act independently and strengthen the checks and balances on government surveillance. The information released today also reveals serious abuses in the FB's backdoor searches, underscoring the need for the government to seek a warrant before searching through mountains of private data on Americans. Finally, I am concerned that the government has redacted information in these releases that the public deserves to know.

Wyden makes good points. And they're points he's made for years. Unfortunately, the FBI continues to do the stuff it shouldn't and the public has to read between the redactions in an (often vain) attempt to see what's being done to them in the name of "national security."

The abuses will continue until Congress or the FISA Court decide they've seen enough. While both entities have chastised agencies with access to NSA collections, neither have taken any action that will head off future misuse of surveillance databases in the future. We're a reactionary nation when it comes to surveillance abuse and that's just not going to prevent future abuses. But that's the nature of the national security beast. No one's allowed to know what's going on until after everything bad has happened.

Filed Under: 4th amendment, backdoor searches, fbi, fisa court, fisc, nsa, odni, ron wyden, vanity searches

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FISA Court Finds The FBI Is Still Violating The Fourth Amendment With Its Abuse Of NSA Collections - Techdirt

Column: Facebook May Be the Solution To Guarantee Citizens’ Liberty – Southern Pines Pilot

As the fog of Donald Trump obscures our political visibility, there are issues much more important than whether the president called Ukraine to obtain campaign dirt on Joe Biden.

Such issues are even more important than determining whether the dirt the president found forms evidence of a crime committed by Biden.

In the end, the fate of the former vice president and our current president are only important to a few pundits and Mitt Romney. It is more important to consider that the U.S. Justice Department and the global government gang are in a battle with Facebook to keep worldwide intelligence services in control of our private communications.

Facebook wants to technologically nullify the warrantless searches of electronic messaging heretofore open to government spy machines. Facebook wants to begin end-to-end encryption of such messages. The system would scramble all conversations so that they could be read only by the computer of the sender and the computer of the intended receiver. Not even Facebook would have the key.

In order to read such a message, a government official would need to go to court and obtain a warrant to seize hardware. Essentially, government would have to obey the Fourth Amendment to the U.S. Constitution, which forbids warrantless searches without an oath attesting to probable cause.

Last week, in a letter from the U.S. attorney general and the home secretaries of the U.K. and Australia, there was an urgent plea to stop the project. They insisted that intelligence services be issued a back door key to read our mail. These agencies want government collection of intelligence to trump citizens right to privacy.

To understand what is at stake, we actually need to bring Edward Snowden back from Russia. I would prefer to first honor him with a pardon, a medal and a ticker tape parade, in that order. Then his presence would enlighten the debate.

In 2013, Snowden revealed numerous global intelligence surveillance programs run by the U.S. National Security Agency and the Five Eyes Intelligence Alliance, a consortium of the U.S., Canada, New Zealand, The United Kingdom and Australia. These programs claimed access to almost all electronic communications worldwide. When Snowden revealed it, he was charged with espionage.

The intelligence services want us to believe that they only use such access for good. They want us to believe that without the power to read our private communications, terrorists will invade and more towers will come crashing down. Since the passage of the Patriot Act almost a generation ago, we believed them.

But these services did not use their powers for good. The most significant use of such power was a plot to spy on Donald Trump and his political campaign. Within Americas deep state, some think these powers are used to surveil the Trump administration.

For both Trump and the general public, lack of privacy creates an omnipresent state of surveillance, an existence incompatible with liberty.

I sympathize with those who want government to read the emails of drug dealers or airplane hijackers. Even James Madison, the probable author of our Fourth Amendment, understood that giving the good guys the right to feel secure in their persons, houses, papers, and effects would pose an obstacle for the state.

But the 1778 anti-Federalist who wrote under the pseudonym Federal Farmer (probably Richard Henry Lee) in support of our Bill of Rights stated clearly that hasty and unreasonable (searches) not based on a warrant on oath and issued with due caution violate the rights of a free people.

It is time that we evolve from a nation in constant fear of attack.

In truth, our nation has not experienced a significant foreign invasion since the British burned Washington during the War of 1812. That is not to say we should be unconcerned about the possibility of an isolated terrorist attack; but neither should we give up our right to keep our private communications private. Our government demonstrates daily that it cannot be trusted with such authority. Such a potential for tyranny has been understood for centuries.

Hopefully, Facebook will restore its image as the champion of free communications by offering hack-proof encryption of our email. It will make government interception of privacy more difficult and will restore our right to be secure in our persons, houses, papers, and effects.

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Column: Facebook May Be the Solution To Guarantee Citizens' Liberty - Southern Pines Pilot

Editorial: FBI violates the Constitution – Opinion – The Providence Journal

After the terrorist attacks of 9/11, when it seemed only a matter of time that weapons of mass destruction would kill thousands more Americans, Congress moved to make it possible to spy on people through warrants issued by a secret court.

Officials repeatedly assured Congress and the American people that this system would not be exploited for improper purposes and that sufficient checks were in place to protect civil liberties.

Unfortunately, they were wrong.

Last week, the intelligence community disclosed a finding by the secret Foreign Intelligence Surveillance Court.

The court ruled that, in 2017 and 2018, the Federal Bureau of Investigation violated Americans Fourth Amendment rights against unreasonable searches by the government.

As The Wall Street Journal reported in a front-page story (FBIs Use of Database Violated Privacy Rights, Secret Court Ruled, Oct. 9), the FBI searched a database of raw intelligence for information on Americans raising concerns about oversight of a spy program that operates in near total secrecy.

The FBI in 2017 and 2018 searched thousands or tens of thousands of pieces of data, such as emails or telephone numbers. In one case, an FBI contractor ran a query of an intelligence database searching information on himself, other FBI personnel and his relatives.

In the opinion released last week, U.S. District Judge James Boesberg said the FBIs procedures were not consistent with the requirements of the Fourth Amendment. That seemed to be putting it mildly.

The program was supposed to be used principally by the National Security Agency, the Journal noted, to collect certain categories of foreign intelligence from international phone calls and emails about terrorism suspects, cyber threats and other security risks. This is a proper and vital use of the information.

Indeed, the Trump administration argued against modifying the program, maintaining it was effective in stopping terrorists. But after the judges ruling, it agreed to apply new procedures that will supposedly better protect the public.

We wonder: Where are the punishments for government officials and contractors who violated Americans constitutional rights? And when is Congress going to step in and make certain there is better oversight of the program?

Justice Department officials are currently investigating whether the secret court improperly provided warrants to the Obama administration to spy, in effect, on the 2016 campaign of Donald Trump. The great danger with secret courts, of course raised before they were first put in place is that government's spying powers could be improperly used against citizens, especially for political purposes.

Our constitutional republic cannot function unless the rights of citizens are recognized and enforced. Government must not use its immense intelligence powers for improper or political purposes, something that could very quickly turn America into a banana republic. The danger of surveillance of Americans is especially acute in our age of digital information, when virtually every step taken by a citizen with a cell phone or an email account could be tracked.

Congress and our free press must make sure that government powers are not abused and that constitutional rights are rigorously enforced.

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Editorial: FBI violates the Constitution - Opinion - The Providence Journal

Supreme Court May Be Preparing to Consider Several Major Cases on Qualified Immunity – Cato Institute

For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine -- which shields public officials from liability, even when they break the law -- was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.

The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances" (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non-threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non-threatening suspects who surrendered by sitting on the ground with their hands up.

The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether "the judge-made doctrine of qualified immunity" should "be narrowed or abolished." The Cato Institute filed a brief in support of this petition, as did a vast, cross-ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court's long conference on October 1st -- that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op-ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking "Could A Dog Bite Bring An End To Qualified Immunity?" All of us were holding our breath as the Supreme Court prepared to start its new term...

But then, something curious happened. On September 23rd, just a week before the Baxter cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. ("Rescheduling" means the petition will be considered at a later date, and that the Justices have yet to formally consider it -- as opposed to "relisting," which happens after a petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again -- no conference date is listed on the docket yet, but the next scheduled conference would be October 18th.

Why is the Court repeatedly rescheduling Baxter? It's impossible to know for sure, of course, but I suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered -- specifically, those in Zadeh v. Robinson and Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit granted qualified immunity to state investigators that entered a doctor's office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in Zadeh, arguing that the Fourth Amendment violation in this case was "clearly established," but also discussing his "broader unease with the real-world functioning of modern immunity practice." And Corbitt is the case I discussed in detail here, in which the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasnt posing any threat.

Cert petitions have yet to be filed in Zadeh or Corbitt. However, the civil rights plaintiffs in these cases are now both represented by Paul Hughes -- co-chair of the Supreme Court and Appellate Practice Group at McDermott Will & Emery -- who has filed applications for extensions of time to file a cert petition in both cases. These applications explicitly state that the petitions will raise the question of "whether the doctrine of qualified immunity should be narrowed or revisited entirely," which is essentially the exact same question in Baxter. And these applications were granted, respectively, on September 17th and September 20th -- just days before the Baxter cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold Baxter until around the time that the Zadeh and Corbitt cert petitions are also filed (which will likely be in mid-November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.

Of course, this prediction is only speculation at this point, and even if the Justices are holding Baxter for something like the reasons I've sketched out above, that's no guarantee that they'll grant the petition. But this is, in my view, a promising development, especially in light of the Court's disappointing denial of the cert petition in Doe v. Woodard (which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred Baxter et al. as the vehiclefor taking up this question. Or perhaps they've realized that this issue is simply not going away. But by the end of this term, I suspect that we'll have a much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.

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Supreme Court May Be Preparing to Consider Several Major Cases on Qualified Immunity - Cato Institute

FBI Carried Out Thousands of Unconstitutional Searches of NSA Archives – Democracy Now!

In the United States, the FBI has carried out thousands of unconstitutional, warrantless searches of the National Security Agencys vast computer archives including the protected personal data of U.S. citizens and residents. Thats according to a ruling last October by the secretive Foreign Intelligence Surveillance Act Court that was declassified this week. In the partially redacted ruling, Judge James Boasberg determined the FBI failed to meet minimum legal standards to protect peoples Fourth Amendment rights to privacy. On one day alone in December 2017, the FBI illegally queried the NSAs database nearly 7,000 times using peoples Social Security numbers.

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FBI Carried Out Thousands of Unconstitutional Searches of NSA Archives - Democracy Now!

FBI worries Facebooks privacy first policy will be a child predators dream – The Sociable

An incredibly sensitive subject Facebook is looking to push a privacy first policy with end-to-end encryption, but the FBI worries it will be a child predators dream.

Facebook would transform from the main provider of child exploitation tips to a dream-come-true for predators and child pornographers

On October 4 FBI Director Christopher Wray gave usa sobering insight into how complicated the idea of privacy really is when dealing with child predators online.

Acknowledging that Facebook is saving livesby employing many people to help identify child sexual abuse imagery and alert the proper authorities, Wray said that we risk falling off a cliff if Facebook goes through with its privacy first policy.

Read More:Are you really buying Facebooks privacy-focused vision? Op-ed

Most of the tips Facebook currently provides are based oncontent. With end-to-end encryption, those would dry up. Facebook itself would no longer be able to see the content of its users accounts, the FBI director said.

Facebook would transform from the main provider of child exploitation tips to a dream-come-true for predators and child pornographers.

A platform that allows them to find and connect with kids, and like-minded criminals, with little fear of consequences. A lawless space created not by the American people, or their elected officials, but by the owners of one big company, he added.

The right to privacy is essential to any republic, but with privacy comes secrecy, and with secrecy comes shady deeds done in the dark a pendulum in constant swing between privacy and tyranny.

Read More:Politicians on both sides agree big tech needs regulation, American citizens are split

Im not going to pretend to take any moral position on this issue. Crimes against children are most horrific.

But using exploited children as a pretext for the most sophisticated law enforcement agency in the world to gain access to the allegedly private data of 2.4 billion people on Facebook would be one step towards tyranny.

The tyrant will always find a pretext for his tyranny Aesop

The FBI director added, We also have no interest in any back door, another straw man. Wethe FBI, our state and local partnerswe go through the front door. With a warrant, from a neutral judge, only after weve met the requirements of the Fourth Amendment.

Weve got to look at the concerns here more broadly, taking into account the American publics interest in the security and safety of our society, and our way of life.

I can understand director Wrays frustration. Theres a serious problem with child predators, but the FBI wants cooperation from all tech companies in helping to eradicate this atrocity online, and once again were at the intersection of freedom and security a constant struggle between the people and the government.

Bad apples ruin everything. Remedies for bad apples can be poisonous as well. The FBI has had its share of bad apples, too. Many at the top have been forcefully removed from office, and trust in the upper echelons of the agency has seriously dwindled in public opinion.

We also have no interest in any back door, another straw man. Wethe FBI, our state and local partnerswe go through the front door. With a warrant, from a neutral judge

When Wray spoke of the FBI going through the front door with a warrant from neutral judge, I believe he was trying to do PR for the agency that has been implicated in secret FISA court abuses.

And just yesterday Ars Technica ran a story called FBI misused surveillance data, spied on its own, FISA ruling finds.

Bad press aside, FBI director Wray called on all tech companies to take measures to stop child predators.

But this is not just about Facebook, he said, adding, weve got to make sure tech companiesall of themarent taking steps that will place content beyond the reach of the courts. Or to blind themselves deliberately to whats happening on their platforms, where so much child exploitation takes place.

Weve got to make sure that companies cant keep creating unfettered spaces beyond the protection of law. Because there are kids out there we havent found, and dangerous criminals we havent caught, who are already moving on to their next victims.

And to his credit the FBI director did leave the conversation open, asking industry experts for their solutions to the problem of child abuse online.

So to those out there who are resisting the need for lawful access, I would ask: Whats your solution? How do you propose to ensure that the hardworking men and women of law enforcement, sworn to protect you and your families, actually maintain lawful access to the information they need to do their jobs?

Good questions indeed. What about you, dear reader? What are your thoughts?

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FBI worries Facebooks privacy first policy will be a child predators dream - The Sociable

Impeachment and analysis by Sharyl Attkisson and James Rosen (Podcast) – Sharyl Attkisson

You are here: Home / Podcasts / Impeachment and analysis by Sharyl Attkisson and James Rosen (Podcast)

October 11, 2019 by Sharyl Attkisson 1 Comment

For those who want to understand the Democrats effort to impeach President Trump, the controversy surrounding the whistleblower, and what it all has to do with Ukraine, this podcast is a half hour well spent.

Investigative reporter James Rosen joins Sharyl in this episode. Subscribe to Full Measure After Hours and The Sharyl Attkisson Podcast on your favorite distributor and follow on Twitter @FullMeasureAF @SharylPodcast

Fight improper government surveillance. Support Attkisson v. DOJ and FBI over the government computer intrusions of Attkissons work while she was a CBS News investigative correspondent. Visit the Attkisson Fourth Amendment Litigation Fund. Click here.

Filed Under: Podcasts Tagged With: impeachment, James Rosen, Ukraine

Emmy-Award Winning Investigative Journalist, New York Times Best Selling Author, Host of Sinclair's Full Measure

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Impeachment and analysis by Sharyl Attkisson and James Rosen (Podcast) - Sharyl Attkisson

What Cars Can Teach Us About New Policing Technologies – The New York Review of Books

Whitney Curtis for The Washington Post via Getty ImagesA traffic stop in St. Louis, Missouri, July 25, 2017

This is not the usual story about cars and freedom: open roads, self-determination, adventure, individualism. The mass production of the automobile transformed twentieth-century America in unexpected and important ways. Foremost, and little-known, it revolutionized policing, spurring the development of police surveillance and increasing individual officers discretionary authority. Although this expansion of the states power didnt begin with discriminatory motives, the history of policing drivers makes clear that law enforcements surveillance practices havent invaded peoples privacy equally, but have reinforced existing inequalities. This is important to remember as contemporary concerns in the face of new technologies abound.

As I explain in my book Policing the Open Road (2019), modern policing developed in response to the challenge of managing all drivers. In the early 1910s, when mass-produced automobiles first appeared on streets originally intended for pedestrians, carriages, carts, and trolleys, they gave new meaning to the word traffic. If municipal officials were not dealing with the chaos of gridlock, then they were worrying about automotive speed, which posed dangers to life and limb that prompted comparisons to the recent Great War. One expert, speaking at a 1924 traffic conference at Yale University, claimed that during the nineteen months of the world war it was estimated that the loss of life by highway traffic accidents in the United States was pretty nearly twice as great as our loss of life through the war itself. According to the National Safety Council, the death toll from car accidents exploded from 4,200 in 1913 to 29,500 in 1932a 500 percent increase.

Local governments throughout the country immediately passed a long list of laws regulating the operation of motor vehicles. But they quickly ran into an enforcement problem: everybody violated traffic laws. In the 1920s and 1930s, few assumed that the police would enforce them. Before cars, when private citizens and businesses were the ones who investigated crimes committed against them, most towns and cities had small police departments that, by and large, dealt with those on the margins of society, like vagrants and drunks.

Overseeing the rest of society, the so-called law-abiding citizenry, was largely the task of voluntary associations. Churches enforced moral standards, trade groups managed business relations, civic groups instilled communal spirit, and fraternities and clubs maintained social harmony. The premise of voluntarism was that reasonable, respectable citizens would do the right thing out of a sense of decency or shame, reinforced by a watchful community. When individuals could not resolve disputes within these associations, they sued each other for tort or breach of contract. In both associational and common-law governance, the police typically did not get involved.

With the advent of the automobile, injured parties in car accidents continued to sue for tort damages. But not every act of bad or reckless driving resulted in a litigable claim, so it fell on voluntary associations to persuade drivers to obey traffic laws. Church ministers delivered sermons on Safety Sunday. Automobile clubs erected safety signs on busy intersections and helped direct traffic. The California Development Association mobilized a safety pledge drive, asking motorists to sign a certificate solemnly vowing to actively practice all safety precautions to the end that the appalling sacrifice of human life and unnecessary suffering caused by carelessness may be stopped.

Voluntarism, however, proved disastrously inadequate to the task of enforcing norms in the anonymous and rapidly developing new world of automobility. As a result, municipalities expanded their police forces to govern the streets, replacing the social scrutiny of neighbors and the community with that of individual officers. Predictably, many Americans chafed at law enforcements meddling in their freedom machines. At the same time, though, most people recognized that they needed to be policedor, rather, they wanted everybody else to be policed.

Traffic cops soon became regular patrollers on the lookout for more than traffic infractions. In a car society, auto theft became one of the most common crimes. The early decades of the automobile also overlapped with National Prohibition, and bootleggers and moonshiners preferred to move their goods under cover in trucks and cars. Officers realized that while they checked for safety violations, they could also search for alcohol and for telltale signs of a stolen car.

To keep up with these developments in police functions, courts throughout the country modified well-established laws to give officers more search powers. So, too, did the US Supreme Court in the 1925 case Carroll v.United States, which set forth the automobile exception that, to this day, allows officers to decide for themselves whether to stop and search a car without first obtaining a warrant from a judge. To justify these expansions of power and to give officers discretionary authority to inspect automobiles, courts pointed to the extensive traffic regulations that undercut drivers privacy claims. Ever since the 1920s, judicial opinions have reiterated that individuals have a lesser expectation of privacy in their cars whenever rationalizing the polices actions.

Police surveillance on the streets and highways, however, did not affect all drivers equally. Officers used their discretionary power to treat some as ordinary traffic violators and others as suspected criminals. The former were generally met with courtesy during traffic stops, while the latter were subjected to investigatory searches. Unsurprisingly, the assumptions and prejudices of individual officers informed their conduct. Although police departments didnt keep statistics on the number of traffic stops by categories like race, a wide range of sourcescourt cases, law review articles, letters to the NAACP, and even police textbooksindicate which groups tended to fall under police suspicion.

A 1963 article in the trade magazine Police listed characteristics of people who warranted special scrutiny, including lone male sitting in car and loiterers around public rest rooms, profiles that targeted gay men. The landmark 1972 case Papachristou v. City of Jacksonville, which overturned centuries-old vagrancy laws and celebrated freedom even in the seemingly mundane acts of wandering and strolling, involved two interracial couples who were arrestedapropos in the automobile agefor prowling by auto. Most citizens encounters with the police never became a legal case and would have been lost to history if organizations like the NAACP had not kept a record of their stories. In the 1950s, NAACP leaders in Florida, Mississippi, Alabama, and Texas reported a southwide pattern of arresting civil rights activists and fining them for minor traffic infractions. In 1956, the president of the Florida branch was beaten and arrested for double-parking his car in front of the local NAACP office. In an automotive society, police harassment of nonconformists, dissenters, and minorities often took place under the guise of enforcing highway safety.

By centurys end, the war on drugs blatantly relied on racial profiling on the highways, known officially by the US Drug Enforcement Agency as Operation Pipeline and, more colloquially, as Driving While Black. It is not surprising that many Fourth Amendment cases since the late 1980s involved a car stop of a minority driver for a minor traffic violation. The widespread practice of discriminatory traffic stops has not just contributed to the countrys disproportionate incarceration of black and brown people, but has also violated the dignity and rights of countless innocent citizens unjustifiably subjected to investigatory car searches.

Newer technologies have only bolstered the polices traffic surveillance capabilities. Computer-equipped patrol cars have now made it possible for officers on the road to check for outstanding warrants and revoked licenses, both of which often stem from unpaid fines or traffic tickets and disproportionately affect poor and minority citizens. A car stop on suspicion for driving with a revoked license is a common enough occurrence that a case challenging its constitutionality is before the Supreme Court this term. Once pulled over, the police, using their discretion, can continue the investigation beyond the initial traffic violation. The odor of marijuanaeasy to allege and difficult to disprove later in a court of lawhas so often been used to justify car searches that one New York judge declared that the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop. Traffic law enforcement was originally intended to protect all citizens, but it has ultimately paved the way for discriminatory policing.

*

Just as the mass production of the automobile created unprecedented threats to the public sphere, new digital technologies are posing novel dangers. With constant news of data breaches, privacy violations, online harassment, and cybercrime, Americans are increasingly calling for greater regulation of the Information Superhighway, which, in turn, will require enforcement and surveillance.

Consider the proliferation of doxing, fake news, hate speech, and child porn on social media, which can undermine individual security as well as our democracy. Lawyer and sexual-privacy advocate Carrie Goldberg has criticized laws that shield tech companies from liability for what their users post. But calls for Facebook, Twitter, or Grindr to crack down on violent, offensive, and abusive content essentially amount to demands that they monitor everyone who uses their platforms. In short, our well-being depends on some intrusion into each others privacy, much as citizen-drivers realized a century ago.

Technological innovation also presents new issues regarding law enforcement that raise difficult questions about the tradeoffs between individual security and privacy. Cameras and drones that offer persistent surveillance are touted to reduce crime. DNA testing has the potential to solve cold cases. For example, in the 2012 Supreme Court case Maryland v. King, the defendant was arrested for assault, and when his DNA, collected as part of the routine booking procedure, matched a DNA sample from an unrelated, unsolved rape case from six years prior, he was convicted for that crime. During oral argument, Justice Samuel Alito remarked that the casethe first to challenge DNA collectionwas perhaps the most important criminal procedure case that this Court has heard in decades. The problem of new technologies is not just about shielding our personal information, but, more than that, about balancing the social benefits of surveillance with its threats to individual privacy.

In striking this balance, we must consider the specific harms to especially vulnerable groups that, in US history, have borne the real costs of surveillance in the name of keeping Americans safe. During the Cold War, for example, the FBIs COINTELPRO spied on and sought to neutralize dissenters from the established political order said to be a threat to American security, such as members of the Communist Party and activists in the civil rights movement, including Martin Luther King, Jr. In more recent echoes of this history, after the terrorist attacks on September 11, the police launched a surveillance program against innocent Muslim New Yorkers based solely on their religion. Some of the strategies included old-fashioned snooping, such as enlisting informants to spy on people, while others involved cameras mounted on light poles aimed at places of worship.

Big data poses another privacy concern, but these dangers do not affect us equally. The life-altering uses of big data are more concrete and dire for those caught in the criminal justice system. More jurisdictions now rely on risk assessment programs to determine an individuals likelihood of recidivism for bail, sentencing, and parole decisions. These programs use algorithms that compile and evaluate all sorts of life facts to try to predict a persons propensity for crime, and this information is used to determine whether that person gets bail and how long a sentence he or she will serve. Ostensibly color-blind, these algorithms actually rely on factors that not only correlate with race, gender, and class, but also incorporate the criminal justice systems pervasive biases. Once embedded in computer programs, these biases become much more difficult to challenge than those of human police, prosecutors, and judges. Big datas potential to threaten liberty is already a dystopian present, not the future, for criminal defendants.

Just as terrifying as the use of technology to forecast a persons future crimes is the governments efforts to build a DNA database. Justice Antonin Scalia dissented in Maryland v. King, arguing that gathering DNA samples from felony arresteesfrom those who had not yet been charged and convicted of a crimewas a significant intrusion into their privacy. He pointed out that the Supreme Courts decision was based on the assumption that DNA collection will not befall thee and me, dear reader, but only those arrested for serious offenses. Scalias indictment explains why more ink has been spilled over the privacy concerns implicated in consumer genetic testing than over the everyday privacy violations that are a routine feature of the criminal justice system.

Recent reports from Hong Kong not only highlight the dual nature of surveillance, but also provide a cautionary tale. What started in March as demonstrations against an extradition bill have grown into a broader, ongoing protest movement for greater democratic rights. As violence escalated, especially after the police started removing their identification numbers from their uniforms, demonstrators exposed police officers identities online as a way to check misconduct. But at the same time, authorities have relied on similar tactics, using facial recognition programs to identify protesters and to arrest leaders of the demonstrations. Surveillance technologies can keep officials accountable, but authoritarian governments can also use them to suppress dissent.

The health of our democracy depends on a vigorous debate about when and how the government can use technology, and these debates must include participation from all parts of society. Take, for instance, facial recognition software, which will, in all likelihood, become a standard feature of police surveillance tools in the United States in the near future. Its difficult to argue against aiding law enforcement in identifying criminals and exonerating innocent suspects. In fact, many early proponents of using facial recognition software, aside from law enforcement, came from minority and poor neighborhoods that were experiencing rising rates of violent crime. But facial recognition technology encountered significant pushback when it became evident that the software was highly inaccurate in identifying women and people of color. A new bill in New York would prohibit the use of such technology in federally funded public housing, and just this week, California Governor Gavin Newsom signed The Body Camera Accountability Act, which bans facial recognition capabilities on police body cams in California.

The goal of a democratic society should not be to stifle technological innovation, but to constantly reassess how we, as a society, will use these technologies. Under what circumstances can the police use cameras and facial recognition programs responsibly? How can the government ensure our security online without policing free speech? What ought to be the limits on law enforcements use of DNA to solve crimes? Which factors can the justice system use to determine pretrial detention, punishment, and probation?

In answering these difficult questions, we must give special attention to the ways that technology has historically and disproportionately affected political dissidents, minorities, and the poor. The history of policing and the automobile suggests that in the hands of human actors, technology tends to replicate the kinds of injustice and inequality that already exist in society. This is precisely why the struggle for equality is crucial to safeguard the privacy and civil rights of all, especially when new technologies are setting up another revolution in policing. In fact, we must treat the two goals as one and the same.

Go here to see the original:

What Cars Can Teach Us About New Policing Technologies - The New York Review of Books

NSA on the Future of National Cybersecurity – Security Boulevard

Glenn Gerstell, the General Counsel of the NSA, wrote a long and interesting op-ed for the New York Times where he outlined a long list of cyber risks facing the US.

There are four key implications of this revolution that policymakers in the national security sector will need to address:

The first is that the unprecedented scale and pace of technological change will outstrip our ability to effectively adapt to it. Second, we will be in a world of ceaseless and pervasive cyberinsecurity and cyberconflict against nation-states, businesses and individuals. Third, the flood of data about human and machine activity will put such extraordinary economic and political power in the hands of the private sector that it will transform the fundamental relationship, at least in the Western world, between government and the private sector. Finally, and perhaps most ominously, the digital revolution has the potential for a pernicious effect on the very legitimacy and thus stability of our governmental and societal structures.

He then goes on to explain these four implications. Its all interesting, and its the sort of stuff you dont generally hear from the NSA. He talks about technological changes causing social changes, and the need for people who understand that. (Hooray for public-interest technologists.) He talks about national security infrastructure in private hands, at least in the US. He talks about a massive geopolitical restructuring a fundamental change in the relationship between private tech corporations and government. He talks about recalibrating the Fourth Amendment (of course).

The essay is more about the problems than the solutions, but there is a bit at the end:

The first imperative is that our national security agencies must quickly accept this forthcoming reality and embrace the need for significant changes to address these challenges. This will have to be done in short order, since the digital revolutions pace will soon outstrip our ability to deal with it, and it will have to be done at a time when our national security agencies are confronted with complex new geopolitical threats.

Much of what needs to be done is easy to see developing the requisite new technologies and attracting and retaining the expertise needed for that forthcoming reality. What is difficult is executing the solution to those challenges, most notably including whether our nation has the resources and political will to effect that solution. The roughly $60 billion our nation spends annually on the intelligence community might have to be significantly increased during a time of intense competition over the federal budget. Even if the amount is indeed so increased, spending additional vast sums to meet the challenges in an effective way will be a daunting undertaking. Fortunately, the same digital revolution that presents these novel challenges also sometimes provides the new tools (A.I., for example) to deal with them.

The second imperative is we must adapt to the unavoidable conclusion that the fundamental relationship between government and the private sector will be greatly altered. The national security agencies must have a vital role in reshaping that balance if they are to succeed in their mission to protect our democracy and keep our citizens safe. While there will be good reasons to increase the resources devoted to the intelligence community, other factors will suggest that an increasing portion of the mission should be handled by the private sector. In short, addressing the challenges will not necessarily mean that the national security sector will become massively large, with the associated risks of inefficiency, insufficient coordination and excessively intrusive surveillance and data retention.

A smarter approach would be to recognize that as the capabilities of the private sector increase, the scope of activities of the national security agencies could become significantly more focused, undertaking only those activities in which government either has a recognized advantage or must be the only actor. A greater burden would then be borne by the private sector.

Its an extraordinary essay, less for its contents and more for the speaker. This is not the sort of thing the NSA publishes. The NSA doesnt opine on broad technological trends and their social implications. It doesnt publicly try to predict the future. It doesnt philosophize for 6000 unclassified words. And, given how hard it would be to get something like this approved for public release, I am left to wonder what the purpose of the essay is. Is the NSA trying to lay the groundwork for some policy initiative ? Some legislation? A budget request? What?

Charlie Warzel has a snarky response. His conclusion about the purpose:

He argues that the piece is not in the spirit of forecasting doom, but rather to sound an alarm. Translated: Congress, wake up. Pay attention. Weve seen the future and it is a sweaty, pulsing cyber night terror. So please give us money (the word money doesnt appear in the text, but the word resources appears eight times and investment shows up 11 times).

Susan Landau has a more considered response, which is well worth reading. She calls the essay a proposal for a moonshot (which is another way of saying they want money). And she has some important pushbacks on the specifics.

I dont expect the general counsel and I will agree on what the answers to these questions should be. But I strongly concur on the importance of the questions and that the United States does not have time to waste in responding to them. And I thank him for raising these issues in so public a way.

I agree with Landau.

Slashdot thread.

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*** This is a Security Bloggers Network syndicated blog from Schneier on Security authored by Bruce Schneier. Read the original post at: https://www.schneier.com/blog/archives/2019/10/nsa_on_the_futu.html

Read the rest here:

NSA on the Future of National Cybersecurity - Security Boulevard

The Courts Are Fighting Back Against Trump’s Brutal Immigration Policies – The Nation

Yazmin Jurez, standing next to a photo of herself holding her daughter Mariee, 1, who died after being released from ICE detention, is sworn in at a House Oversight subcommittee hearing, July 10, 2019, on Capitol Hill. (AP / Jacquelyn Martin)

The Noise: Trumps rambling statement at his press conference last week, shortly after the impeachment inquiry was announced, in which he congratulated himself on building an impenetrable border wall that even mountain-climbers wouldnt be able to scale. The Signal: Over the past several days the administration has unveiled a draconian cut in the number of refugees to be admitted next year and, via executive action, has sought to unravel the decades-old refugee resettlement program by giving cities and states the ability to veto resettlement in their communities.Ad Policy

Next year, the number of refugees admitted will be capped at 18,000; the number actually admitted will likely be lower still. Thats down from the target of 110,000 that Obama set in 2016, in his last presidential determination on the issue. In fact, Trumps cap is the lowest since the modern refugee resettlement system was codified, in 1980.

At the same time, as the administration locks down the southern border via a series of rule changes, it announced an agreement with Honduras allowing asylum seekers to be sent there rather than admitted into the United States. That came after Trump had already strong-armed Guatemala and El Salvador into similar agreements. What does this mean? Basically, that anyone who transits through Central America en route to safety in the United States can now be arrested and put on a plane to one of those three countrieswhich have high crime rates and are among the poorest in the Western Hemisphere. Thats not just absurd, its criminal.

Thats the bad news on the immigration front. But lost amid the other headlines this week were three extraordinarily positive judicial rulings.More Signal:Noise

First, in California, Federal Judge Dolly Gee ruled that the terms of the Flores agreement, which have the effect of limiting how long immigrant children can be kept in detention, could not be superseded by new Trump administration regulations allowing for indefinite detention. The administration will, of course, appeal the ruling, but at least for now, its sick plan to create family concentration camps is on hold.

Then, in quick succession, a Washington, DC, court declared illegal the administrations plans for fast-track deportation of undocumented immigrants arrested anywhere in the United States who cant prove they have been here continuously for two years. Thats important; currently theres a zone, within 100 miles of the border, in which undocumented immigrants have few constitutional protections and little access to immigration courts. Trump had sought to extend that zone to the entire country, but the court ruling puts the kibosh on that.

Finally, in Gonzalez v. ICE, a federal district court restricted when and how ICE could request that local police detain immigrants; the judge ruled that ICE was violating the Fourth Amendment in its catch-all missions against immigrants by mining federal databases that contain inaccurate or incomplete information.

These are huge developments. Pay attention to the Signalthe struggle over how this country treats immigrants is truly heating up.

See the original post:

The Courts Are Fighting Back Against Trump's Brutal Immigration Policies - The Nation


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