Tag: 4th Amendment

Cross posted from The Stars Hollow Gazette

“This is the most closed, control-freak administration I’ve ever covered.“

That is what David E. Sanger, the chief Washington correspondent for the New York Times, told former Washington Post executive editor Leonard Downie. Sanger was one of 30 journalists Downie interviewed for a report on the Obama administration’s efforts to control leaks. Downie, who was one of the editors involved in the Post’s Watergate investigation, called the administration’s “war on leaks” the most aggressive since the Nixon administration.

The Obama Administration and the Press

by Leonard Downie Jr. with reporting by Sara Rafsky, Committee to Protect Journalists

Leak investigations and surveillance in post-9/11 America

U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists.

Compounding the concerns of journalists and the government officials they contact, news stories based on classified documents obtained from Snowden have revealed extensive surveillance of Americans’ telephone and e-mail traffic by the National Security Agency. Numerous Washington-based journalists told me that officials are reluctant to discuss even unclassified information with them because they fear that leak investigations and government surveillance make it more difficult for reporters to protect them as sources. “I worry now about calling somebody because the contact can be found out through a check of phone records or e-mails,” said veteran national security journalist R. Jeffrey Smith of the Center for Public Integrity, an influential nonprofit government accountability news organization in Washington. “It leaves a digital trail that makes it easier for the government to monitor those contacts,” he said.

“I think we have a real problem,” said New York Times national security reporter Scott Shane. “Most people are deterred by those leaks prosecutions. They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.”

At the same time, the journalists told me, designated administration spokesmen are often unresponsive or hostile to press inquiries, even when reporters have been sent to them by officials who won’t talk on their own. Despite President Barack Obama’s repeated promise that his administration would be the most open and transparent in American history, reporters and government transparency advocates said they are disappointed by its performance in improving access to the information they need.

In an interview with Amy Goodman on Democracy Now!, Leonard Downey discusses freedom of the press and the Obama administration.

I found that these leaks investigations and a program called the Insider Threat Program, instituted since the Bradley Manning leaks, that requires government employees to monitor each other to make sure that they’re not leaking information to anyone, including journalists, to have really frightened government officials. Many, many reporters that I interviewed here in Washington say that government officials are afraid to talk to them. They’re afraid that their telephone conversations and their email exchanges would be monitored. That is to say that investigators could come in later, as they did in several leaks investigations, and use their telephone and email records in order to find the contacts between government officials and reporters. So they’re simply scared to talk to reporters.

And this, this is not good, because-I just heard the president saying that he was concerned about the safety of our troops and our intelligence officers. It’s important that responsible, knowledgeable government officials be able to talk to reporters about these matters, so that, among other things, they can alert reporters to information that might be harmful to national security or harmful to human life, in which case no responsible news organization would publish those.

Cross posted from The Stars Hollow Gazette

Monday morning the Supreme Court handed down a 9 – 0 decision on the 4th Amendment and privacy right ruling that police must obtain a warrant before they can place GPS device on a person’s vehicle. The ruling in United States v. Jones upholds a citizen’s right to privacy and smacks down the Obama administrations defense of unlimited surveillance. The ruling overturns the drug conviction of Antoine Jones that used information from a GPS device that was placed on his vehicle without a warrant.

Justices Say GPS Tracker Violated Privacy Rights

WASHINGTON – The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies. [..]

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants.

The Obama administration had argued that under a 1983 ruling the police had the right to place the device:

One of the Obama administration’s main arguments in support of warrantless GPS tracking was the high court’s 1983 decision in United States v. Knotts, in which the justices ruled it was OK for the government to use beepers known as “bird dogs” to track a suspect’s vehicle without a warrant. In that case, the police had the consent of that truck’s owner, which was not the case in the opinion decided Monday, Scalia wrote.

Law Professor Jonathan Turley provides broader discussion of the two opinions that were written by Justices Samuel Alito and Anton Scalia. Scalia’s opinion prevailed with Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor concurring.

Also Jeralyn E. Merritt of TalkLeft points out a question that was not addressed:

Whether the electronic surveillance, if achieved without having to physically trespass on Jones’s property, would have been “an unconstitutional invasion of privacy.”

We need to take back our data.

Bruce Schneier writes in a commentary on Wired that we have become intimately bound with our data in the information age.  The bits of information about us that are collected and stored in hundreds, even thousands of different spots around the globe determine whether we can get a job, obtain health insurance, have a loan approved, even board an airplane or enter a foreign country.

We leave a data trail wherever we go: when we use a discount card at the supermarket; when we log on to the Internet through our ISP; when we pick up a cell phone call.  Each bit and byte has the potential to affect our future, yet we have no control over who handles it, who gains access to it, even whether we can have a look at it ourselves.

We like to think that our vote is the ultimate weapon of the people, but if the new rule is to get elected, raid the treasury and change the laws that hamper you, and then go away, then we are just voting in new thieves.

The FISA bill goes into compromise with Bush already promising his veto if the bill doesn’t include retroactive immunity for the telephone companies. Congress knows damn well the telco’s don’t need immunity because they should be able to produce an executive order for anything illegal they are accused of. If they can’t, then they should stand trial. Bush was willing to break the law in the first place because he saw the need as vital to national security, yet his willingness to suspend the same program over a provision in a bill pretty much destroys his claim of vital interest.

I want to show another way to shatter the claim that domestic spying is vital to national security, and point out the possible abuses that could happen if the apparatus is allowed to run without oversight.

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The rule of law is mankind’s greatest triumph. It ensures that all actions and transactions are zero-sum endeavors. We agree on a value and trade if we are willing to pay the price. If we steal, or gain an unfair advantage in some other way, then justice puts up the capitol to balance the transaction. It forcibly extracts the balance from the perpetrator and charges interest. When an injustice is allowed to stand, the damage is greater than the original injustice. It undermines the system and fosters the notion of an entitled class that is above the law. Resentment is our internal justice system that works not by raising our own self worth, but by lowering the worth of the other class, seeding distrust and even hatred. Scooter Libby was within the arms of justice but was released by an entitled class that was above the law and let his roll in a dangerous and senseless crime against this country go unpunished. Joe Wilson, in my mind, would be justified in taking action against those that would place the life of his wife in danger.

The phone companies should be able to hold up a presidential order in court for any illegal act they perpetrated. I can understand that. What I can’t understand is not being able to find out if they followed the presidential order or went beyond it. Even more unbelievable is not being allowed total oversight over the scope of data mining and how that data is used in all cases. FISA was created by the abuse of the 4th amendment in the past. That abuse, as always, led to other abuses such as the burglary at Watergate.

The phone companies have a body of information so valuable that many specific laws have been enacted to safeguard it and the unfair advantage it creates if a privileged class has unfair access. It’s not just the possibility of being able to listen in on the content of a call; the telemetry of calling patterns is in itself of immense value and can be used for grossly unfair advantages.

Analyzing the calling patterns of an investment bank can greatly increase the chance of speculating correctly that a certain company might be in play for a takeover. Analyzing the calling patterns in and out of certain phones at the FBI or Justice department can be used as an early warning of an investigation. Congressional offices. Defense contractors. Law offices. Doctors offices. Local police. Party headquarters. Husbands/wives/paramours/competitors/personal enemies – all for the taking. All for sale. Unchecked.

Any and every time a telco complies with a request that is not public knowledge and might otherwise be illegal, the telco gains a bit too. They can begin to think of it as the norm and possible start helping themselves too because, after all, they can hold up examples for all the world to see if they felt pressured in any way. Leverage is a great way to unhinge justice.

The premise of the governments efforts to gather information is to thwart terrorism. They will use the argument that stopping even one attack makes it worth the violence being done to our liberties. That’s a false argument; more people die in car accidents than terrorist attacks, so why don’t they take our cars away too.

Even with low odds, if eavesdropping were certain to stop terrorism, then I might accept it with strict oversight. The fact is, it is unlikely a terrorist would communicate in the clear in a way that the automated collection apparatus would catch. Why talk openly when they can just post a picture of an ugly purple couch on Craigslist at an address in Walla Walla Washington as a signal to do something. The apparatus is useless to stop it.

Concentrating and analyzing the motherload of all data under the excuse of looking for terrorists is just an excuse. The power is too great to not abuse. The FBI has already admitting to abusing this information and has thoughtfully informed us that they are attempting to reduce the abuse. How will we know? We are not allowed full oversight.

Since congress very well might abdicate their responsibility to their constituents – us – then is there anything we the people can do for ourselves? It has to be done now because soon, it might be impossible to organize any kind of protest or action without the government being in on every detail.

One thought that I had would be to show how easy it is to undermine the premise of the system. If software was written to work on computers and cell phones that constantly emitted non-specific, non-localized, threatening-sounding, non-threats (can’t call it FOX News – already taken) then it would overwhelm the automated collection systems, causing them to flag billions of messages for review by human eyes every day. Harmless phrases such as “Flea bomb the white house at the end of the street,” might drive any system that is looking for terrorists crazy. Even worse would be to take specific sentences from Tom Clancy books and randomly emit them.

If any lawyers are reading this, do you know if voluntarily running such software would be illegal? What would be the government’s response in your estimation?

Unless that data is open to everyone, it should be open to no one. The government has not acknowledged any program of data mining. How can we know that? If they are not mining, then the program mentioned above should have no detrimental effect.

This in no way can be construed as sedition. I just want my 4th amendment rights honored. Since destroying the equipment that is listening to us is destruction of property, I wonder if there might not be another way around it by simply undermining the premise.