Tag Archives: civil liberties

Privacy Is Dead, Long Live Transparency!

by Edbre23ne Posted on October 31, 2013

Mother Jones

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Thanks to Edward Snowden, we’ve learned a lot over the past few months about the breathtaking scope and depth of US government surveillance programs. It’s going to take a while to digest all the details he’s disclosed, but in the meantime it might be a good idea to step back and ask some pointed questions about what it all means—and what kind of country we want to live in.


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Privacy Is Dead, Long Live Transparency!


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Meet the Data Brokers Who Help Corporations Sell Your Digital Life


Six Ways to Keep the Government Out of Your Files

What keeps the NSA’s capabilities from being abused in the future?
With only a few (albeit worrying) exceptions, Snowden’s documents suggest that today the NSA is focused primarily on foreign terrorism and mostly operates within its legal limits. But the agency has built an enormous infrastructure that sweeps up email, phone records, satellite communications, and fiber-optic data in terabyte quantities—and if history teaches us anything, it’s that capabilities that exist will eventually be used. Inadvertent collection of US communications is required by law to be “minimized,” but even now there are plenty of loopholes that allow the NSA to hold on to large quantities of domestic surveillance for its own use and the use of others. And there’s little to keep it from covertly expanding that capability in the future. All it would take is another 9/11 and a president without a lot of scruples about privacy rights.

What kind of independent oversight should the NSA have?
Right now, oversight is weak. There are briefings for a few members of Congress, but the NSA decides what’s in those briefings, and one leaked report revealed that the agency has set out very specific guidelines for what its analysts may divulge to “our overseers.” That caginess extends to the FISA court charged with making sure NSA programs remain within the law: In a 2011 opinion recently released by the Obama administration, the court noted that the NSA had misled it about the specific nature of a surveillance program for the third time in three years.

No organization can adequately oversee itself. If the NSA is allowed to decide on its own what it reveals to Congress and to the courts, then it’s under no real oversight at all.

What happened to the Fourth Amendment?
Back in 1979, the Supreme Court ruled that although a warrant is required to tap a telephone line, none is needed to acquire phone records. This means that police don’t need a warrant to find out whom you’ve been calling and who’s been calling you.

Whatever you think of this ruling, it was fairly limited at the time. Today it’s anything but. The NSA now sweeps up records of every single phone call made in the United States under the authority of Section 215 of the Patriot Act, which gives it power to obtain any “tangible thing” that’s relevant to a terrorist investigation. Did Congress mean for that section to be interpreted so broadly? Rep. Jim Sensenbrenner (R-Wis.), one of the authors of the Patriot Act, doesn’t think so. But the NSA does, and the FISA court has backed it up.

Another law, Section 702 of the FISA Amendments Act, allows the NSA to obtain access to vast categories of online communications without a warrant. It’s supposed to apply only to foreigners, but via errors and loopholes plenty of Americans end up being targeted too. In fact, one of the loopholes specifically allows the agency to use domestic data collected “inadvertently” if it shows evidence of a crime being or “about to be” committed. This provides a pretty obvious incentive to gather up bulk domestic communications in hopes of finding evidence of imminent activity. And the practice isn’t limited to national security cases: The Drug Enforcement Administration, for example, has a special division dedicated to using intelligence intercepts in drug cases, a fact that it routinely conceals from courts and defense attorneys.

What all this means is that the traditional constitutional requirement of a particularized warrant—one targeted at a specific person—is fast becoming a relic. In the NSA’s world, they simply collect everything they can using the broad powers they’ve been given, then decide for themselves which records they’re actually allowed to read. Is that really what we want?

Does all this surveillance keep us safer?
There’s no way to know for sure, since virtually everything about the NSA’s programs is classified. But shortly after the publication of the first Snowden documents, the head of the NSA told Congress that its surveillance programs had “contributed” to understanding or disrupting 50 terrorist plots—10 of them domestic—since 9/11. That amounts to less than one domestic plot per year. Of the handful he described, the most significant one involved a Somali immigrant who sent a few thousand dollars back to fighters in Somalia.

When you narrow things down to just the NSA’s collection of domestic phone records—perhaps its most controversial program—things get even shakier. In 2009, a FISA court judge who had received detailed reports on the program expressed open skepticism that it had accomplished much. And two US senators who have seen classified briefings about all 50 plots say that the phone records played “little or no role” in disrupting any of them. If this is the best case the NSA can make, it’s fair to ask whether its programs are worth the cost, either in money or in degraded privacy.

What about corporate surveillance?
Government eavesdropping isn’t the only thing we have to worry about. We’re also subjected to steadily increasing data collection from private actors. It’s true that, unlike a government, a corporation can’t put you on a no-fly list or throw you in jail. But there are at least a couple of reasons that corporate surveillance can be every bit as intrusive as the government variety—and possibly every bit as dangerous too.

First, if Target can analyze your shopping habits to figure out if you’re pregnant—and it can—another company might figure out that you’re in the early stages of Alzheimer’s disease and then start badgering you to buy worthless insurance policies. Multiply that by a thousand and “targeted advertising” doesn’t seem quite so benign anymore.

Second, there’s nothing that prevents the government from buying up all this information and combining it with its programs into an even bigger surveillance octopus. That was the goal of the Orwellian-named Bush-era program known as Total Information Awareness. It was officially killed after a public outcry, but as we now know, it never really went away. It just got split apart, renamed, and dumped into black budgets.

Even the NSA itself is in on the action: The Wall Street Journal reported earlier this year that the agency collects more than just phone records and data packets. Via internet service providers and financial institutions, it also gathers web search records, credit card transactions, and who knows what else. In addition, the NSA has long maintained a deep collaboration with the leading-edge data mining companies of Silicon Valley. And why not? As the New York Times put it, both sides realize that “they are now in the same business.”

Can we save privacy?
I call this the “David Brin question,” after the science fiction writer who argued in 1996 that the issue isn’t whether surveillance will become ubiquitous—given technological advances, it will—but how we choose to live with it. Sure, he argued, we may pass laws to protect our privacy, but they’ll do little except ensure that surveillance is hidden ever more deeply and is available only to governments and powerful corporations. Instead, Brin suggests, we should all tolerate less privacy, but insist on less of it for everyone. With the exception of a small sphere within our homes, we should accept that our neighbors will know pretty much everything about us and vice versa. And we should demand that all surveillance data be public, with none restricted to governments or data brokers. Give everyone access to the NSA’s records. Give everyone access to all the video cameras that dot our cities. Give everyone access to corporate databases.

This is, needless to say, easier said than done, and Brin acknowledges plenty of problems. Nonetheless, his provocation is worth thinking about. If privacy in the traditional sense is impossible in a modern society, our best bet might be to make the inevitable surveillance more available, not less. It might, in the end, be the only way to keep governments honest.

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Privacy Is Dead, Long Live Transparency!

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The NSA Strikes Back

by William V. Wainscott Posted on October 29, 2013

Mother Jones

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The great European spying scandal just got a little more complicated. There’s been an uproar in France and Spain over reports that the NSA has collected millions of phone records in those countries, but today brought this news:

Leaked U.S. documents appearing to show that the National Security Agency collected data on tens of millions of European phone records, an issue that has sparked outrage among U.S. allies, actually represented data handed over to the NSA by European intelligence services as part of joint operations, U.S. officials said Tuesday.

Hmmm. What records were involved? Why were they turned over?

Army Gen. Keith Alexander, director of the NSA, said reports to the contrary, based on revelations by former NSA contractor Edward Snowden, were “completely false.” He said European intelligence services collected phone records in war zones and other areas outside their borders and shared them with the NSA.

“This is not information that we collected on European citizens,” Alexander told the House Permanent Select Committee on Intelligence. “It represents information that we and our NATO allies have collected in defense of our countries and in support of military operations.”….The French and Spanish intelligence agencies have had extensive, long-running programs to share millions of phone records with the United States for counterterrorism purposes, according to current and former officials familiar with the effort.

And what do Spain and France have to say about this?

The NSA declined to comment, as did the Spanish foreign ministry and a spokesman for the French Embassy in Washington. A spokesman for Spain’s intelligence service said: “Spanish law impedes us from talking about our procedures, methods and relationships with other intelligence services.”

Roger that. The NSA, aka “current and former U.S. officials,” is also fighting back on a different front, saying that European countries have targeted the communications of U.S. citizen in the past. The obvious implication is that European leaders should cool it on the feigned outrage over NSA wiretapping of their citizens.

Will this work? Or will it simply piss off the European public even more? I can’t decide. Wait and see.

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The NSA Strikes Back

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MAP: 9 States Besides Texas That Are Making It Harder for Women to Vote

by mirorita02 Posted on October 29, 2013

Mother Jones

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Women have been allowed to vote in the United States since 1920, after the passage of the 19th Amendment. But fast-forward to 2013, and plenty of states’ laws have a provision that makes it harder for women who are married or divorced to cast a ballot.

When Americans all over the country head to the polls on November 5 to vote on mayoral candidates, ballot initiatives, gubernatorial races, and even members of Congress, they will be up against a new kind of voter ID law that has mostly cropped up in 2012 and 2013 and disproportionately affects women—as well as transgender voters and anyone else with a name change.

Controversial voter ID laws, which GOP proponents say are intended to prevent the (pretty much non-existent) crime of voting fraud, are nothing new, and they have been criticized for targeting low-income voters, young people, and minorities. But Texas’s newly enforced voter ID law has put a spotlight on another group of voters that will be disproportionately affected by these rules. Not only must Texas voters present government-issue photo IDs to vote, but now poll workers are required under the law to check these IDs against an official voting registry to determine if the two names “substantially” match. That means that a woman who updated her voter registration when she got married, but not her driver’s license or passport (and vice versa), could face additional hurdles in getting her ballot counted.

The Texas law may have drawn extra scrutiny because of the state’s reputation for being a battleground in the “war on women”—but it’s just one of many to adopt this type of provision. At least 9 other states’ voting laws, most enacted in 2012 or 2013, use similar language. That doesn’t count the 24 additional states with other kinds of voter ID laws, including some with looser photo ID rules that are still potentially problematic for women. In 2006, the Brennan Center found that 34 percent of voting-age women do not possess a proof-of-citizenship document that reflects their legal name, although updated statistics on photo IDs are hard to come by. And Slate points out that the law doesn’t just affect Democrats, as Republican women are more likely change their names.

“We need Americans to understand that even though this particular ‘war on women’ isn’t out in the light, women are quietly being disenfranchised in the dark—they just might not know it yet,” says Judith Browne Dianis, co-director of the the Advancement Project, a civil rights organization.

Voter ID laws can be sorted into three categories—ones that require non-photo ID, like a bank statement, ones that require a photo ID (usually government-issued); and ones that require photo ID and include language about how the name on that ID must match the name in the voter registration database (like Texas). Here’s a map showing all of these categories and whether or not the laws are in place for this upcoming election. For even more in-depth information on your state, head over to the National Conference of State Legislatures.)

In every single one of these states, minorities, low-income voters, and young people—who tend to vote Democratic and are least likely to have up-to-date identification—are targeted. But married or divorced women who have changed their names are also affected in the states above that require photo identification—since the name on their ID, which women often wait to update until it expires, has to match their voter registration. The Advancement Project’s legal team told Mother Jones that the states that require poll workers to check the voter registration list for a match make it the most difficult for women, since poll workers have more explicit legal instructions.

Regardless of what’s on the books, interpretation is largely left up to the poll workers, who have a lot of power over whether someone gets a ballot. In less strict states, for example, poll workers can choose to have someone sign a sworn affidavit rather than show ID. In Texas, if the voter registration list reads “Jane Smith” but the woman’s ID says “Jane Doe Smith”—then that qualifies as a “substantial match” and the voter only has to sign an affidavit swearing to his or her identity for her vote to be counted. But if Jane’s ID still has her maiden name, “Jane Doe,” and the poll worker isn’t sure, the ballot will only be counted if, within six days, Jane can dig up a $20 marriage or divorce certificate and find time to get a new ID that matches the name she registered with. (In Dallas, poll workers have been bending the rules so that voters can re-register under their married names.) Pennsylvania also gives six days to obtain a new ID, and Mississippi only gives five.

These scenarios aren’t merely hypothetical. In 2011, a 96-year-old Georgia woman was denied the right to vote because she didn’t have her marriage certificate. And in Pennsylvania, the state’s ID law is on hold until a pending lawsuit is resolved. One of the plaintiffs is a woman who couldn’t vote because her marriage certificate was in Hebrew, and she couldn’t get a new ID that reflected her changed name, thus, her name didn’t match the voter registration list. (Women who obtained common law marriages could have similar problems.) Another plaintiff is a transgender man who presented both a driver’s license and passport, but was rejected because of his photograph.

“Voter ID laws discriminate against trans communities and many marginalized communities who struggle to obtain access to consistent, accurate and updated identity documents,” says Sasha Buchert, staff attorney at the Transgender Law Center. “Often there are huge barriers for updating documents.” In Texas, for example, a transgender person needs to bring a court order to the DMV.

For those heading to the polls, Kelly Ceballos, a spokesperson for the League of Women Voters, says the most important thing is for voters to get educated—Texas, for example, is reducing or eliminating the cost of getting a birth certificate copy in some counties—and not get discouraged. “It is important to participate in the democratic process and the way to do that is to go to the polls and cast a ballot,” she says.

Judith Browne Dianis hopes that women voters will start realize that “you’re being disenfranchised because you weren’t paying attention. Maybe you thought this was something that was just affecting people of color, or low-income people, but it’s impacting your voice and your ability to participate on the issues that matter to you.”

For more data on voter ID laws and who they affect, click here.

Additional reporting by Nina Liss-Schultz.

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MAP: 9 States Besides Texas That Are Making It Harder for Women to Vote

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NSA Collects Millions of Address Books, Buddy Lists

by Larry Daichea Posted on October 15, 2013

Mother Jones

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Yes, the NSA is collecting your address books and buddy lists too:

During a single day last year, the NSA’s Special Source Operations branch collected 444,743 e-mail address books from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail and 22,881 from unspecified other providers, according to an internal NSA PowerPoint presentation. Those figures, described as a typical daily intake in the document, correspond to a rate of more than 250 million a year.

Each day, the presentation said, the NSA collects contacts from an estimated 500,000 buddy lists on live-chat services as well as from the inbox displays of Web-based e-mail accounts….Although the collection takes place overseas, two senior U.S. intelligence officials acknowledged that it sweeps in the contacts of many Americans. They declined to offer an estimate but did not dispute that the number is likely to be in the millions or tens of millions.

….Because of the method employed, the agency is not legally required or technically able to restrict its intake to contact lists belonging to specified foreign intelligence targets, he said. When information passes through “the overseas collection apparatus,” the official added, “the assumption is you’re not a U.S. person.”

….A senior U.S. intelligence official said the privacy of Americans is protected, despite mass collection, because “we have checks and balances built into our tools.”

The NSA’s collection of bulk phone records and bulk online records is overseen by the FISA court. That may not be much, but in theory anyway, at least it’s something. But the NSA’s collection of address books is done solely under presidential order and has no oversight at all. They can collect anything they want and use it any way they want.

Luckily for us, the NSA has “checks and balances” built into their tools, so you have nothing to worry about.

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NSA Collects Millions of Address Books, Buddy Lists

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Can Someone Please Shut Down the US Customs Agency?

by SelenaKil Posted on October 1, 2013

Mother Jones

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I woke up in the middle of last night enraged by this story. I do not thank Ta-Nehisi Coates for bringing it to my attention and ruining my night, but as long as he did, I’m going to ruin yours too.

Thanks to a combination of executive branch policy and Supreme Court indifference in the post-9/11 era, US Customs and Border Protection has become a rogue agency, answerable to no one and run by sociopaths who take grim pleasure in harassing and torturing citizens they disapprove of just because they can. The evidence for this is now legion. If Congress actually wanted to do something useful, that’s what they’d spend this week working on.

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Can Someone Please Shut Down the US Customs Agency?

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California Passes Domestic Worker Bill of Rights, Sort Of

by bestpage Posted on September 27, 2013

Mother Jones

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Gov. Jerry Brown signed into law the California Domestic Worker Bill of Rights yesterday, making California only the third state in the country to adopt such legislation. But despite its celebration as a policy victory by advocates, the law might more aptly be called the California Domestic Worker Bill of Right, after it was watered down to only include overtime protections.

Also see: “Charts: 4 Reasons Why the White House’s Domestic-Worker Protections Matter”

The law now reads that a domestic work employee “shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay” for all overtime hours worked. Hour protections are, without a doubt, an important gain for domestic workers, who “are prone to be overworked on a weekly and daily basis,” according to Sarah Leberstein, an attorney at the National Employment Law Project.

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California Passes Domestic Worker Bill of Rights, Sort Of

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The NSA Isn’t the Only Government Agency Destroying Your Right to Privacy

by Margherit Posted on September 23, 2013

Mother Jones

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This story first appeared on the TomDispatch website.

For at least the last six years, government agents have been exploiting an AT&T database filled with the records of billions of American phone calls from as far back as 1987. The rationale behind this dragnet intrusion, codenamed Hemisphere, is to find suspicious links between people with “burner” phones (prepaid mobile phones easy to buy, use, and quickly dispose of), which are popular with drug dealers. The secret information gleaned from this relationship with the telecommunications giant has been used to convict Americans of various crimes, all without the defendants or the courts having any idea how the feds stumbled upon them in the first place. The program is so secret, so powerful, and so alarming that agents “are instructed to never refer to Hemisphere in any official document,” according to a recently released government PowerPoint slide.

You’re probably assuming that we’re talking about another blanket National Security Agency (NSA) surveillance program focused on the communications of innocent Americans, as revealed by the whistleblower Edward Snowden. We could be, but we’re not. We’re talking about a program of the Drug Enforcement Administration (DEA), a domestic law enforcement agency.

While in these last months the NSA has cast a long, dark shadow over American privacy, don’t for a second imagine that it’s the only government agency systematically and often secretly intruding on our lives. In fact, a remarkable traffic jam of local, state, and federal government authorities turn out to be exploiting technology to wriggle into the most intimate crevices of our lives, take notes, use them for their own purposes, or simply file them away for years on end.

“Technology in this world is moving faster than government or law can keep up,” the CIA’s Chief Technology Officer Gus Hunt told a tech conference in March. “It’s moving faster I would argue than you can keep up: You should be asking the question of what are your rights and who owns your data.”

Hunt’s right. The American public and the legal system have been left in the dust when it comes to infringements and intrusions on privacy. In one way, however, he was undoubtedly being coy. After all, the government is an active, eager, and early adopter of intrusive technologies that make citizens’ lives transparent on demand.

Increasingly, the relationship between Americans and their government has come to resemble a one-way mirror dividing an interrogation room. Its operatives and agents can see us whenever they want, while we can never quite be sure if there’s someone on the other side of the glass watching and recording what we say or what we do—and many within local, state, and federal government want to ensure that no one ever flicks on the light on their side of the glass.

So here’s a beginner’s guide to some of what’s happening on the other side of that mirror.

You Won’t Need a Warrant for That

Have no doubt: the Fourth Amendment is fast becoming an artifact of a paper-based world.

The core idea behind that amendment, which prohibits the government from “unreasonable searches and seizures,” is that its representatives only get to invade people’s private space—their “persons, houses, papers, and effects”—after it convinces a judge that they’re up to no good. The technological advances of the last few decades have, however, seriously undermined this core constitutional protection against overzealous government agents, because more and more people don’t store their private information in their homes or offices, but on company servers.

Consider email.

In a series of rulings from the 1970’s, the Supreme Court created “the third-party doctrine.” Simply stated, information shared with third parties like banks and doctors no longer enjoys protection under the Fourth Amendment. After all, the court reasoned, if you shared that information with someone else, you must not have meant to keep it private, right? But online almost everything is shared with third parties, particularly your private e-mail.

Back in 1986, Congress recognized that this was going to be a problem. In response, it passed the Electronic Communications Privacy Act (ECPA). That law was forward-looking for its day, protecting the privacy of electronic communications transmitted by computer. Unfortunately, it hasn’t aged well.

Nearly three decades ago, Congress couldn’t decide if email was more like a letter or a phone call (that is, permanent or transitory), so it split the baby and decreed that communications which remain on a third party’s server—think Google—for longer than 180 days are considered abandoned and lose any expectation of privacy. After six months are up, all the police have to do is issue an administrative subpoena—a legal request a judge never sees—demanding the emails it wants from the service provider, because under ECPA they’re considered junk.

This made some sense back when people downloaded important emails to their home or office computers and deleted the rest since storage was expensive. If, at the time, the police had wanted to look at someone’s email, a judge would have had to give them the okay to search the computer where the emails were stored.

Email doesn’t work like that anymore. People’s emails containing their most personal information now reside on company computers forever or, in geek speak, “in the cloud.” As a result, the ECPA has become a dangerous anachronism. For instance, Google’s email service, Gmail, is nearly a decade old. Under that law, without a judge’s stamp of approval or the user ever knowing, the government can now demand from Google access to years of a Gmail user’s correspondence, containing political rants, love letters, embarrassing personal details, sensitive financial and health records, and more.

And that shouldn’t be acceptable now that email has become an intimate repository of information detailing who we are, what we believe, who we associate with, who we make love to, where we work, and where we pray. That’s why commonsense legislative reforms to the ECPA, such as treating email like a piece of mail, are so necessary. Then the police would be held to the same standard electronically as in the paper-based world: prove to a judge that a suspect’s email probably contains evidence of a crime or hands off.

Law enforcement, of course, remains opposed to any such changes for a reason as understandable as it is undemocratic: it makes investigators’ jobs easier. There’s no good reason why a letter sitting in a desk and an email stored on Google’s servers don’t deserve the same privacy protections, and law enforcement knows it, which is why fear-mongering is regularly called upon to stall such an easy fix to antiquated privacy laws.

As Department of Justice Associate Deputy Attorney General James Baker put it in April 2011, “Congress should also recognize that raising the standard for obtaining information under ECPA may substantially slow criminal and national security investigations.” In other words, ECPA reform would do exactly what the Fourth Amendment intended: prevent police from unnecessarily intruding into our lives.

Nowhere to Hide

“You are aware of the fact that somebody can know where you are at all times, because you carry a mobile device, even if that mobile device is turned off,” the CIA’s Hunt explained to the audience at that tech conference. “You know this, I hope? Yes? Well, you should.”

You have to hand it to Hunt; his talk wasn’t your typical stale government presentation. At times, he sounded like Big Brother with a grin.

And it’s true: the smartphone in your pocket is a tracking device that also happens to allow you to make calls, read email, and tweet. Several times every minute, your mobile phone lets your cell-phone provider know where you are, producing a detail-rich history of where you have been for months, if not years, on end. GPS-enabled applications do the same. Unfortunately, there’s no way to tell for sure how long the companies hang onto such location data because they won’t disclose that information.

We do know, however, that law enforcement regularly feasts on these meaty databases, easily obtaining a person’s location history and other subscriber information. All that’s needed to allow the police to know someone’s whereabouts over an extended period is an officer’s word to a judge that the records sought would aid an ongoing investigation. Judges overwhelmingly comply with such police requests, forcing companies to turn over their customers’ location data. The reason behind this is a familiar one: law enforcement argues that the public has no reasonable expectation of privacy because location data is freely shared with service or app providers. Customers, the argument goes, have already waived their privacy rights by voluntarily choosing to use their mobile phone or app.

Police also use cell-phone signals and GPS-enabled devices to track people in real time. Not surprisingly, there is relatively little clarity about when police do this, thanks in part to purposeful obfuscation by the government. Since 2007, the Department of Justice has recommended that its US attorneys get a warrant for real-time location tracking using GPS and cell signals transmitted by suspects’ phones. But such “recommendations” aren’t considered binding, so many US Attorneys simply ignore them.

The Supreme Court has begun to weigh in but the issue is far from settled. In United States v. Jones, the justices ruled that, when officers attach a GPS tracking device to a car to monitor a suspect’s movements, the police are indeed conducting a “search” under the Fourth Amendment. The court, however, stopped there, deciding not to rule on whether the use of tracking devices was unreasonable without a judge’s say so.

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The NSA Isn’t the Only Government Agency Destroying Your Right to Privacy

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Quote of the Day: Control Over the Internet Is the "Struggle of Our Generation"

by ncf01r Posted on September 23, 2013

Mother Jones

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From Glenn Greenwald, in an interview with Noam Sheizaf of Haaretz:

The promise of the Internet was that it would liberate people and bolster democracy, but it has become a tool for suppression and control. In fact, it is one of the most powerful instruments of control ever invented. The most essential challenge we face today is related to the real effect of the Internet. Will it impart power to people and liberate them, or will it impart more strength to the centers of power and help them oversee, control and suppress the population? That is the struggle of our generation, and it has yet to be decided.

In the past, outside of police states, there were practical limits to surveillance simply because people communicated in so many different ways. Today, we’re moving toward a world in which virtually all communication is done via a single global digital network. This has obviously empowered individuals in a broad and complex set of ways, but as our lives become more and more dependent on the internet, it has also provided governments with a single point of contact for nearly ubiquitous surveillance. As Glenn says, it’s not clear yet which of these forces is more powerful. In China, I’d say the latter. In the United States, probably the former. So far.

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Quote of the Day: Control Over the Internet Is the "Struggle of Our Generation"

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WATCH: "Chemical Weapons Don’t Kill People, People Kill People" Fiore Cartoon

by HarralGeidl697 Posted on September 19, 2013

Mother Jones

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Mark Fiore is a Pulitzer Prize-winning editorial cartoonist and animator whose work has appeared in the Washington Post, the Los Angeles Times, the San Francisco Examiner, and dozens of other publications. He is an active member of the American Association of Editorial Cartoonists, and has a website featuring his work.

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Will the Supreme Court Stop Cops From Reading Your Text Messages?

by dig1iti43 Posted on September 17, 2013

Mother Jones

If you’re like many Americans, your cell phone is overflowing with personal information—text messages, emails, photos of your friends and family, an organized history of who you’ve been calling, private notes, automatic login to your Facebook and Twitter accounts, your favorite music, and even maps of where you like to run around your house. And if you’re anything like Mother Jones staffers, you probably keep your cell phone on you at all times. If I’m arrested on my way home from work (probably for eating on the Metro), you can bet that my smart phone will be in my pocket or my purse. And in Washington, DC, as well as most states across the country, the law won’t keep the arresting officer from taking my phone without a warrant, rifling through my text messages, copying the data for later use, and even breaking my password to do so—all things that would most likely be illegal if the officer went to my office and did them to my work computer, instead.

But that could soon change. The Supreme Court has been asked to consider two cases—United States v. Wurie and Riley v. California—which challenge the legality of warrantless cell phone searches under the Fourth Amendment. Police (and the Obama Administration) maintain that these searches are necessary, stopping suspects from deleting crucial information about drug deals and trafficking rings; but civil liberties advocates say that’s no excuse for officers not to get a warrant. Here’s everything you need to know about these searches, and whether the Supreme Court might stop them:

So, why are police allowed to search my cell phone without a warrant?

Terence McCormack, Flickr

The Fourth Amendment is supposed to protect Americans from being searched by police without a warrant—but there are exceptions, one of which kicks in as soon as you get arrested. If you’ve got cuffs on, even if you did nothing wrong, your rights now fall under the “Search Incident to Lawful Arrest Doctrine.” That means that the cop arresting you doesn’t need a warrant to search anything in close proximity to your body. The reason this exception exists is to keep law enforcement officers safe—say, if a suspect has a cigarette pack inside his shirt that could be mistaken for a gun—and to stop suspects from destroying evidence on the scene of the crime (like this alleged bank robber, who appears to be eating his hold-up note).

A court ruled in the 1970s that an item—in this particular case, a footlocker in a car trunk that contained marijuana—couldn’t be searched without a warrant once it had been taken away from the scene of the arrest. But as the Electronic Freedom Foundation notes, there still isn’t a decisive ruling as to whether this applies to smart phones. The way the law stands now in most states, police can take your cell phone, read your messages, and even copy data for a search later, citing the fact that you may be able to delete it remotely.

So could a cop search my computer without a warrant under this same logic?

Probably not. In order to go into your home and search your computer without a warrant, police need to have probable cause that you’re about to destroy important evidence from your hard drive, or have your consent. And Linda Lye, a staff attorney for the American Civil Liberties Union (ACLU) notes that “no court would say an officer can come search your home, without a warrant, because you’ve been arrested.” However, if you’re holding your computer when you get arrested or its in your car, it might be seized so that you can’t potentially destroy evidence (and if you’re at a US border, all bets are off, privacy-wise.)

In which states are these cell phone searches legal?

It depends on rulings made by state and federal courts. Only Ohio, Florida, and the First Circuit Court (which includes Maine, Massachusetts, New Hampshire and Rhode Island) have decisively ruled that police need to get a warrant before reading your text messages. The rest of the states have either not ruled on the issue (meaning police can probably conduct the searches) or explicitly allow them. For more information on which states outlaw this practice and why, check out this awesome interactive map put together by Forbes and the Electronic Freedom Foundation (blue states outlaw these warrantless searches, red states allow them, and yellow states haven’t ruled.)

Forbes

When have these warrantless searches happened?

Lots of times—here’s a brief review of 14 cases that have made it to court in the last six years alone. And not all the cases have to do with hard crimes. In 2012, a man who was protesting a proposed city law in San Francisco by pitching a tent and sleeping outside was arrested for loitering. Even though police already had evidence of his crime (i.e., the tent), they allegedly began to read his text messages, which included sensitive information and contacts that could affect his future lobbying efforts on the proposal.

What happened in the two cases that are facing the Supreme Court?

In 2007, Boston police nabbed Brima Wurie for allegedly engaging in a cocaine deal at a convenience store. After he was booked at the station, the officers noticed that the phone they had seized from Wurie was receiving calls from a number identified as “my house.” They then looked at his call log without a warrant and used that information, as well as a photo of what appeared to be his girlfriend, to find his home. They then searched his residence, obtaining additional evidence that was used to charge Warie. The US Court of Appeals for the First Circuit found that in this case, the officers violated the Fourth Amendment.

The second case, Riley v. California, deals with David Riley, who was stopped by officers because the tags on his car were expired—but his cell phone was then seized and searched, revealing that he participated in a 2009 gang shooting in San Diego. The California Supreme Court ruled that case was not a violation of the Fourth Amendment.

What’s the legal argument against these searches?

Susan Melkisethian

As Brianne Gorod, the appellate counsel for the Constitutional Accountability Center explains, “The search in Riley v. California violates that core purpose of the Fourth Amendment…If the Supreme Court doesn’t resolve this, police officers in some parts of the country will be able to search the entire contents of an individual’s cell phone, tablet, e-reader, and any other digital devices he has in his possession if he is arrested, even if the arrest is for a minor offense, such as failing to fasten his seatbelt.” Additionally, the judge in Wurie found that not only do cops not need to read text messages in order to determine whether a cell phone is a gun, but they don’t need to read them to stop evidence from being deleted, either:

Weighed against the significant privacy implications inherent in cell phone data searches, we view such a slight and truly theoretical risk of evidence destruction as insufficient. While evidence preservation measures, such as removing a phone’s battery may be less convenient for arresting officers than conducting a full search of a cell phone’s data incident to arrest, the government has not suggested that they are unworkable, and it bears the burden of justifying its failure to obtain a warrant.

The case where the San Francisco protester had his cell phone seized, described above, uniquely argues that the searches violate the First Amendment; because cell phones contain valuable contact information for assemblies and protests.

My phone is locked, so this won’t happen to me…right?

It could. While it’s illegal for officers to compel you to give up information that could lead to incriminating evidence; Linda Lye from the ACLU argues that “the courts are still struggling with the issue on whether you can compel someone to provide a password to a cell phone.” And Ryan Radia, writing for Ars Technica, notes that “once police have lawfully taken the phone off your person, they are free to try to crack the password by guessing it or by entering every possible combination.” Law enforcement definitely has the capacity to break cell phone locks—CNET reported in 2012 that major tech companies have been helping police bypass lock pages on cell phones for years—and many police departments have forensic extraction devices that can obtain data from computers and cell phones.

Why do law enforcement say these searches are necessary?

Ron Cottingham, president of the Peace Officers Research Association of California, argued in a US News and World Report op-ed earlier this month that not all people under arrest are going to have their cell phones searched without a warrant. Instead, “in cases involving human trafficking, sexual slavery and narcotics, the contents of these devices can prove to be invaluable.” He also notes that “for those who choose to disobey our laws, they must understand that their actions could result in the loss of the privacy they enjoyed.”

What are the chances of the Supreme Court actually hearing these cases?

Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center, says, “It’s very likely that the Supreme Court will grant certiorari and review the issue (either in Riley or Wurie). If the Court does not take one case, it will likely take the other.” Laurie Levenson, a professor at Loyola Law School in Los Angeles argues that, “I think this issue will make it up to the Supreme Court, however, the court often waits to see how the circuit courts work out the issue, so I don’t think that Riley or Wurie will necessarily be the cases that go all the way.” The Supreme Court should issue its decision within the next month.

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Will the Supreme Court Stop Cops From Reading Your Text Messages?

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