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Published: Sun, 18 Mar 2018 00:00:00 -0400

Last Build Date: Sun, 18 Mar 2018 22:00:03 -0400


No Fourth Amendment Protections Against Warrantless Cell Phone Searches at U.S. Border, Says Federal Court

Fri, 16 Mar 2018 15:50:00 -0400

In its 2014 decision in Riley v. California, the U.S. Supreme Court held that law enforcement officials violated the Fourth Amendment when they searched an arrestee's cell phone without a warrant. "Modern cell phones are not just another technological convenience," Chief Justice John Roberts wrote for the majority. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

But what about when an American citizen is returning home from abroad and U.S. border officials want to thoroughly search the contents of that person's cell phone? Does the Fourth Amendment require the government to get a warrant before searching cell phones at the border? According to a decision issued this week by the U.S. Court of Appeals for the 11th Circuit, the answer to that question is no.

The 11th Circuit's ruling came in the matter of United States v. Vergara. Hernando Vergara is a U.S. citizen who was returning home from a cruise to Mexico. Because of a prior conviction for possessing child pornography, a Customs and Border Protection officer searched his luggage, including the three cell phones that Vergara was carrying. One of those phones contained "a video of two topless female minors." The Department of Homeland Security entered the picture at that point. Vergara's cell phones were taken away to a DHS facility where they were subjected to a warrantless forensic search, which typically involves retrieving deleted files and other significant inspections of the phone's digital records. DHS discovered child pornography on Vergara's phones.

Vergara and his lawyers argue that this evidence should be deemed inadmissible because the government never obtained a search warrant. His position is based in significant part on the increased privacy protections for cell phone users that the Supreme Court recognized in Riley v. California.

But a divided panel of the 11th Circuit took a different view. "The forensic searches of Vergara's cell phones occurred at the border, not as searches incident to arrest," declared the majority opinion of Judge William H. Pryor. "And border searches never require a warrant or probable cause."

Writing in dissent, Judge Jill Pryor wrote that while she agrees "with the majority that the government's interest in protecting the nation is at its peak at the border," she disagrees "with the majority's dismissal of the significant privacy interests implicated in cell phone searches." In Riley, she noted, the Supreme Court recognized "the significant privacy interests that individuals hold in the contents of their cell phones." And in her view, "the privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley." If it were up to her, "a forensic search of a cell phone at the border [should require] a warrant supported by probable cause."

One thing is clear: We have not heard the last of this debate. Either this case, or one very much like it, is almost certainly headed for the Supreme Court.

City Orders Businesses to Join Its Police Surveillance System

Tue, 20 Feb 2018 12:25:00 -0500

City leaders in Saginaw, Michigan, are drafting local shops into the crime-fighting business. The city has ordered local businesses to install video cameras and to turn over footage to the police on demand. Saginaw City Council voted unanimously yesterday to pass an ordinance requiring certain types of businesses (with "characteristics which may tend to increase the risk of criminal activity on their premises") to install a minimum of three surveillance recording cameras. These must be in operation whenever the business is open, and one camera must be positioned to record the face of each person entering or leaving. Not all businesses are covered by the new rules, but if you spend time in Saginaw, you're likely to walk into one of these places. Besides some obvious choices—banks, gun shops, check-cashing businesses—the ordinance covers all hotels, gas stations, pharmacies, cell phone dealers, and places that sell liquor (or allow liquor to be consumed on the premises, like a banquet hall). All these businesses will have a year to install their surveillance systems, subject to approval and inspection by the Saginaw Police Department. Then, if "a crime occurs" involving the business (the ordinance is written very vaguely), the establishment will provide the recording of the incident to the police. If the business resists, police will attempt to get a search warrant. Businesses are required to retain all recordings for at least 30 days; if the police contact them about a crime, they have to retain their recordings of the incident for at least 60 days. Businesses will be subject to inspections of their surveillance systems whenever the chief of police damn well pleases. The new law states the chief or a designee can inspect the system at any "reasonable" time to make sure it's in compliance with the city ordinance, which also seems like a nice way of getting around any demand by a business that police get a warrant to review footage. Police could also use such a demand to access surveillance for purposes other than investigating a crime. You would think that the city of Saginaw, population around 50,000, must be in the midst of a massive crime wave. The opposite is true. While Saginaw's violent crimes historically are far above average, overall crime in the city has dropped significantly over the past decade. As in many other American cities, Saginaw's crime is on the decline and has been for a while. But that's not enough for city leaders who want to force businesses to install (and pay for) equipment that lets the police snoop on folks. A recent beating and robbery of a 65-year-old woman captured on surveillance footage in Saginaw is being used to make the case that video recording devices should be mandatory. Saginaw Police Chief Bob Ruth claims businesses can get compliant surveillance systems for $300–$350. This quote from Ruth, in Michigan Live, has a confounding use of "we," which seems to indicate that Ruth doesn't even recognize that private businesses are not there to do the city's bidding: "I think the extra work that we're doing is far outweighed by the quality of work we're going to get in the end, on the way we'll be able to solve cases. It's really going to help us." [emphasis added] Those who attempt to defy the city's ordinance will face fines for each day they are out of compliance. And eventually they could lose their business licenses. It's not unusual for a city or a police department to attempt to force a business to shell out for surveillance equipment and other costly security demands when violent crime or drug dealing frequently takes place on or near the premises. Officials use "nuisance abatement" procedures and zoning rules to essentially force them to help the police or get shut down. It's less common for a city to make these demands in advance and absent any evidence that a particular business is a crime incubator. Ruth says he's gotten good feedback from business owners for the ordinance. If businesses are all on board, what did they actually need the ordinan[...]

3 Supreme Court Cases to Watch This Month

Fri, 16 Feb 2018 09:15:00 -0500

February is shaping up to be quite a month at the U.S. Supreme Court. In the coming weeks, the justices will hear oral arguments in cases that tackle such contentious issues as the constitutionality of compulsory public-sector union fees, whether the First Amendment protects the wearing of certain political attire at the ballot box, and whether Microsoft must comply with federal warrants issued for email accounts whose data is stored overseas. Here are three Supreme Court cases to watch this month. 1. Janus v. American Federation of State, County, and Municipal Employees, Council 31 In the 1977 case of Abood v. Detroit Board of Education, the Supreme Court said that state governments may compel government workers to pay union fees as a condition of employment, even when those workers are not union members. The Court did so on the grounds that nonmember "free riders" should not be allowed to benefit from a public-sector union's collective bargaining activities. Later this month, the Supreme Court will hear oral arguments in a case that asks whether Abood should be overruled. The case is Janus v. American Federation of State, County, and Municipal Employees, Council 31. Mark Janus, an Illinois public-sector employee, objects to being forced to pay fees to a union that he has refused to join, arguing that such compulsion violates his First Amendment rights by making him subsidize the union's political speech and activities. The American Federation of State, County, and Municipal Employees, by contrast, argues that the Abood precedent "is sound and underlies important and longstanding tenets of this Court's First Amendment jurisprudence," such as the idea "that certain labor-relations interests justify the small intrusion on employees' First Amendment interests that fair-share payments represent." Oral arguments in Janus v. American Federation of State, County, and Municipal Employees, Council 31 are scheduled for February 26. 2. United States v. Microsoft Corporation The Stored Communications Act (SCA) of 1986 contains several provisions designed to safeguard private communications that are held "in electronic storage." Among them is a requirement that law enforcement officials may only obtain the contents of such communications "pursuant to a warrant." In 2013, federal authorities obtained a warrant for the contents of a drug suspect's Microsoft email account. But Microsoft refused to comply and moved to quash the warrant. Why? Because the email records in question happened to be stored in the company's datacenter in Dublin, Ireland. As Microsoft argues in its brief in United States v. Microsoft Corporation, "because statutes apply only domestically unless Congress clearly indicates otherwise, the SCA should be read to apply only to electronic communications stored here, just as other countries' laws govern electronic communications stored on their soil." The federal government takes the opposite view. Under the Stored Communications Act, it told the Court, "the government may compel a U.S. service provider to disclose electronic communications within its control, regardless of whether the provider stores those communications in the United States or abroad." What is more, the government argues, Microsoft's interpretation of the SCA "would hamper domestic law enforcement and counterterrorism efforts" by creating a massive loophole that could allow any U.S.-based email account to escape the reach of U.S officials so long as the data is stored abroad. Oral arguments in United States v. Microsoft Corporation are scheduled for February 27. 3. Minnesota Voters Alliance v. Mansky Under Minnesota law, "a political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." This ban applies to all apparel "designed to influence and impact voting" or "promoting a group with recognizable political views." Andrew Cilek, the executive director of the conservative group Minnesota Voters Alliance, ran afoul of this l[...]

Mass Surveillance Is One Chinese Export We Should Ban

Thu, 08 Feb 2018 15:20:00 -0500

What does a total surveillance environment look like? The people of Xinjiang, a region in northwestern China, have been finding out. Here's how The New York Times describes measures being implemented there: Imagine that this is your daily life: While on your way to work or on an errand, every 100 meters you pass a police blockhouse. Video cameras on street corners and lamp posts recognize your face and track your movements. At multiple checkpoints, police officers scan your ID card, your irises and the contents of your phone. At the supermarket or the bank, you are scanned again, your bags are X-rayed and an officer runs a wand over your body.... [Your] personal information, along with your biometric data, resides in a database tied to your ID number. The system crunches all of this into a composite score that ranks you as "safe," "normal" or "unsafe." The reason for all this snooping? The region is home to a significant population of Uighurs, a religious minority that the Chinese regime tends to see as subversive. The Uighurs, consequently, are subjected to an even greater degree of monitoring and harassment: Uighurs' DNA is collected during state-run medical checkups. Local authorities now install a GPS tracking system in all vehicles. Government spy apps must be loaded on mobile phones. All communication software is banned except WeChat, which grants the police access to users' calls, texts and other shared content. When Uighurs buy a kitchen knife, their ID data is etched on the blade as a QR code. China's treatment of the Uighurs is appalling in its own right, but the story should alarm Americans for another reason as well: It shows how much can be done with mass surveillance tech that already exists and is commercially available to government entities. Most if not all of the technologies being deployed in Xinjiang are already in use, to some extent, in the United States. Many major cities have installed comprehensive CCTV systems that can be easily retrofitted with facial recognition software. Biometric data, including fingerprints and retinal patterns, are routinely collected en masse by law enforcement agencies—and by private employers and consumer electronics companies that under current law can be compelled to hand their data over to the government. Sometimes that only takes a subpoena issued by law enforcement without any judicial review. While the Fourth Amendment does provide something of a shield against large-scale techno-snooping on everyone's everyday movements, the main reason there aren't yet huge government databases that keep comprehensive records on most people's movements and activities is just official forbearance. If, say, the NYPD really wanted to implement a tracking system like the one in Xinjiang—one that used fixed and mobile video cameras, long-distance retina scanners, and biometric databases to keep tabs on every New Yorker—it probably could. Because a great deal of mass surveillance is conducted at the local level (CCTV networks, license plate readers, cell-site simulators, etc.), state laws preempting or restricting the use of these technologies can actually be an effective way to ensure that privacy is protected. The 13 states that have outlawed automatic speed traps (a more directly intrusive forms of mass surveillance, since it hits ordinary people directly in the wallet) demonstrate this. But such restrictions on other forms of surveillance so far seem to have little political support. For example, a study conducted by the Georgetown University Law Center on Privacy and Technology found that very few jurisdictions have policies significantly restricting the use of facial recognition technologies—and in those that do, the restrictions are often self-imposed by executive agencies rather than mandated by state law. It shouldn't be the case that the only thing stopping Xinjiang-style mass surveillance in America is that the government hasn't bothered to install it yet. That kind of discretionar[...]

Immigration Authorities Want Access to All the Raw Intelligence the Feds Already Collected on You

Thu, 08 Feb 2018 12:35:00 -0500

Now that Congress and the president have renewed and expanded federal foreign intelligence surveillance authorities to be used on Americans and people on American soil, immigration officials want in on the information. It's not enough for Border Patrol, Department of Homeland Security, and immigration officials to demand to see our papers at checkpoints and stops within the United States, to try to implement facial recognition scans at airports and entry points, to try to demand access to our phones and laptops, and to start scanning license plates. Now, the Daily Beast reports, they want to officially be treated like an intelligence agency and have greater access to information collected through secret surveillance. While this is by no means a new push confined to the current administration, Immigration and Customs Enforcement (ICE) probably has the friendliest ear they've had in a while in President Donald Trump. Betsy Woodruff explains: If ICE joins the Intelligence Community, then its officials will have increased access to raw intelligence, unfiltered by analysts. This could prove useful to both of the agency's components: Homeland Security Investigations (HSI), which investigates transnational crimes, including drug trafficking, money laundering, cybercrimes, and arms trafficking; and Enforcement and Removal Operations (ERO), which arrests and detains undocumented immigrants. For anybody who remembers the privacy debate surrounding the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA) amendments, the list of crimes ICE investigates is very relevant. When Congress renewed Section 702, they officially gave the FBI authorization to use this foreign intelligence law to secretly snoop on American citizens in order to investigate a list of federal crimes. That authorized list aligns very nicely with the types of crimes ICE investigates. So if ICE were to get greater access to federal intelligence, thanks to the renewal and expansion of Section 702 of FISA, immigration officials would also get additional access to secret data collected about Americans, not just immigrants. And Section 702's renewal puts some wonky warrant rules in place. If an American citizen is suspected of a crime that ICE is investigating, officials are required to get a warrant to get access to an American's private communications. But if they are not the subject of an investigation or their communications get collected in intelligence-gathering that's not about fighting crime, they do not. So, weirdly, Americans have more due process protections from warrantless snooping if they're suspected of crimes. For the purposes of ICE surveillance, it's very easy to imagine that an American communicating with an immigrant (here legally or not) having his or her phone calls or communications accessed without even knowing about it. So if ICE is allowed to intrude further into the realm of intelligence, that increases the number of federal officials allowed to have access to secret snooping not just of immigrants or people in foreign lands, but of Americans here at home as well.[...]

Governments Hate Bitcoin and Cash for the Same Reason: They Protect People’s Privacy.

Tue, 06 Feb 2018 00:15:00 -0500

Publicly fretting about Bitcoin and other cryptocurrencies, last month, Treasury Secretary Steve Mnuchin assured an audience at the Economic Club of Washington that "one of the things we will be working very closely with the G-20 on is making sure that this doesn't become the Swiss numbered bank accounts." He specifically cited the difficulty cryptocurrencies pose to tracking transactions as a major concern. Soon afterward, India's finance minister, Arun Jaitley, sounded an even stronger note, saying, "The government does not consider crypto-currencies legal tender or coin and will take all measures to eliminate use of these crypto-assets in financing illegitimate activities or as part of the payment system." Why are government officials sounding such similar notes of hostility to increasingly popular non-state cryptocurrencies? "The core technology underlying cryptocurrencies, known as blockchain, is premised on anonymity," Richard Holden, an economics professor at the University of New South Wales, and Anup Malani, a law professor at the University of Chicago, explain. "But anonymity is also the main fuel for the underground economy, which is now conducted largely via cash." They add, "If cryptocurrencies were to replace cash as the preferred anonymous medium of exchange, they could significantly expand the underground economy because they are so much more convenient than cash." It's worth remembering that India's government hates cash, too. Less than two years ago, India demonetized all 500- and 1,000-notes—the highest denominations in circulation—turning them into worthless paper overnight. Officials happily plunged the economy into chaos, and forced many people to resort to barter, in an effort to force the private cash holdings powering the country's vast shadow economy into official view, subject to tracking and taxation. "We can gradually move from a less-cash society to a cashless society," Prime Minister Narendra Modi said at the time, making his ultimate aims clear even as his policies disrupted the lives of people subject to his rule. Lots of economic heavy-hitters agree with that sentiment, including Peter Bofinger, a member of the German Council of Economic Experts, who calls for "the abolition of cash, since coins and bills are obsolete and only reduce the influence of central banks." He insists that with the end of the anonymity provided by cash, "the markets for moonlighting and drugs could be dried up." Harvard University's Kenneth S. Rogoff, former chief economist of the International Monetary Fund, puts a similar book-length argument forward in The Curse of Cash. "The big problem with paper currency is that a large part of it is used to facilitate tax evasion and a huge spectrum of criminal activities," he says. Concerns about constant scrutiny by Big Brother don't sway him either, leading him to retort, "the government's right to tax, regulate and enforce laws trumps individual privacy considerations." Rogoff unsurprisingly also thinks cryptocurrencies are entirely too freewheeling, snarking that "bitcoin—it is a solution if you're wanting to launder money or tax evasion. I think the government will eventually have to regulate it severely and I think someday will issue its own digital currency." He adds, for emphasis, "it's the anonymity that's really the problem." Even in the absence of a formal policy decision, those concerns are already seeping through into everyday life in the United States. In recent weeks financial institutions including JPMorgan Chase & Co., Bank of America Corp., and Citigroup Inc. have restricted the use of their credit cards to purchase cryptocurrencies at least partially over concerns about the government's ability to track their use. Banks are required by regulators to monitor their customers' transactions for anything the government might interpret as money laundering, notes Bloomberg, "which isn't as easy once dollars are convert[...]

Neil Gorsuch and Samuel Alito Butt Heads Over the Fourth Amendment, Again

Thu, 01 Feb 2018 10:05:00 -0500

A major split seems to be developing between conservative justices Neil Gorsuch and Samuel Alito over the issue of property rights and the Fourth Amendment. The most recent evidence of this division came on January 9, when the U.S. Supreme Court heard oral arguments in Byrd v. United States. This case arose in 2014, when a woman named Natasha Reed rented a car and allowed her fiancé, Terrence Byrd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Byrd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Byrd is fighting to have that evidence thrown out as the fruits of an illegal search. The question presented to the Supreme Court is this: "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?" During the oral arguments, Justice Neil Gorsuch observed that Byrd's lawyer, Robert Loeb, had offered a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title." "We think the property interest here, the right that...Mr. Byrd would have had to bring a trespass action," Loeb replied, "demands a recognition of his right to invoke the Fourth Amendment." In other words, Byrd had "possession" of the car under common law principles. If, while driving it, somebody else tried to break in and steal it from him, he would have a common law right "to bring a trespass action," as Loeb put it, against that would-be thief. In this case, the trespasser is law enforcement, which, absent probable cause, has no authority to search the trunk. Justice Samuel Alito apparently did not like the sound of that. "The problem with going down this property route is that we go off in search of a type of case that almost never common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th-century America? Never." Loeb pushed back on Alito's characterization. "It's your right to bring trespass action against a stranger," he told Alito. "The fact that you can exclude a stranger and bring a trespass action against him is what supports your property right under the Constitution." A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed. "The Constitution uses the word 'property' numerous times," Alito told Loeb, "but the word 'property' doesn't appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnson's dictionary as 'goods or movables.'... Is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?" "I think if the common law recognizes your [right]," Loeb replied, "then both under the common law and common sense, that it makes sense to recognize a right to invoke a Fourth Amendment right." Gorsuch remained quiet during those exchanges between Alito and Loeb. But he spoke up again in favor of the property rights theory during the second half of the oral arguments, when Assistant to the Attorney General Eric Feigin was presenting the government's side of the case. According to Feigin, Byrd, "like other unauthorized drivers, simply has no connection to the car at all." "Mr. Faigin, you keep saying that," Gorsuch said, "but as a matter of property law, now and forever, a possessor would have a right [...]

This Boring British Cops Clone May Show the Future of American Mass Surveillance

Wed, 31 Jan 2018 15:50:00 -0500

BBC's popular reality show Traffic Cops is not so far from what a stereotype-inclined American might imagine if told "it's like Cops, but British." It also shows a worrying future-that-might-be of mass surveillance in America. Traffic Cops may not be a montage of helmeted and mustachioed bobbies puffing after pickpocketing orphans on cobblestoned streets. But to American eyes, the constables of Traffic Cops do seem terribly proper and polite. Compared to the show's ever-controversial American cousin, there's very little shouting, wrestling, cracking of skulls, or brandishing of firearms. In fact, to Americans used to seeing copious amounts of such activities in our cop shows, Traffic Cops (and its spinoff, Motorway Cops) can seem downright boring. Sure, you get the occasional familiar chase-bail-run-tackle sequence. But thanks to strict national restrictions on engaging in high-speed chases, pursuits often end with the cops taking down a plate number and letting the fugitive drive away. This might sound like a pleasant alternative to American civil libertarians, but there's a sinister twist that sours the picture: mass surveillance. The really boring thing about the show is how much time the constables spend just waiting for alerts from Britain's driver surveillance network to pop up on their squad-car screens. Some background: Britain's major roads are among the most heavily surveilled on earth. Every day, more than 8,500 Automated Number Plate Recognition (ANPR) devices placed along the country's roads and in police vehicles read and store the location of between 25 and 35 million license plates, potentially capturing more than half of Britain's entire population of 65 million. Driving in the United Kingdom is also regulated more heavily than in many parts of the U.S. In addition to being licensed and insured, British drivers must pay an annual per-vehicle excise tax meant to discourage private car ownership. The Ministry of Transportation is also supposed to inspect each car annually for compliance with environmental standards. The Ministry of Transporation and the United Kingdom's tax collection service share all their vehicle data with a vast law enforcement data management system called the Police National Computer (PNC). All private car insurers are required to do this as well. And the PNC is connected, of course, to the ANPR network. As such, the ANPR cameras are able to determine, within moments, the license, insurance, tax, and inspection status of every car they see. When the system spots a violation, it alerts the Traffic Cops. src="" allowfullscreen="allowfullscreen" frameborder="0" height="315" width="560"> Occasionally, the ANPR helps the cops recover a stolen vehicle or locate a missing person. At other times it flags cars "known to be associated with drugs," cars possessed by people with unpaid tax debt, and cars whose owners have a history of "anti-social driving," whatever that is. But the great majority of the infractions it uncovers seem to involve skirting the high costs of compliance with Britain's burdensome driving regulation scheme. To judge from the show, the typical penalty seems to be a stiff fine and seizure of the car—a punishment the cops readily explain (with exquisite politeness) is imposed purely as a deterrent. In straight-to-camera bits filmed in the backs of police cars, "outlaw drivers" often confess that they haven't paid their road tax or renewed their inspection because they can't afford to, but still need to drive to get to work, take children to school, and so on. The cops nod sympathetically while writing out the ticket and calling the tow truck. These encounters typically end with frustrated driver and passenger standing by the side of the road as the constable, driving off, shakes his head sadly and reminds the au[...]

National I.D. By Any Other Name Still Stinks

Tue, 30 Jan 2018 13:35:00 -0500

(image) There have been many pushes to centralize and standardize our individual identification data at the federal level. But when given the choice, American voters and their representatives have always rejected the idea of National I.D. Alas, that hasn't stopped the government with going ahead with it anyway.

In a new report published by the Cato Institute, Jim Harper of the Competitive Enterprise Institute details how a patchwork of state-level systems and programs that collect and share data already does everything the National I.D. proposals of the past ever hoped to, and is poised to do much more.

Harper's report identifies six different programs that in conjunction with each other can or already do provide federal, state, and local authorities with near-instantaneous access to huge amounts of identifying data. Combined, they form a de facto National I.D.

The most familiar (and also most complete) of these systems are the federal REAL ID driver's license standardization mandates and the E-Verify digital employment eligibility checks used by a number of states.

For those who have followed the years-long controversy over REAL ID, the report's most dismaying insight may be that the fight is essentially over. After years of resisting or refusing implementation of the Department of Homeland Security's REAL ID requirements, all 50 states are now in at least partial compliance.

The result, the report says, is a nationwide system in which "even a small-town sheriff in rural Georgia or Vermont could have access to a database of hundreds of millions of Americans' images." Between that and E-Verify, that sheriff could easily tie a face to a Social Security account—a National I.D. measure that voters have vociferously opposed, and that was rejected when it was proposed in the 1970s.

This de facto National I.D. becomes even more expansive when combined with a number of new technologies that states are starting to roll out. Harper discusses the possible combinations of REAL ID and E-Verify with the facial and license plate recognition technologies many states are already using, either in experimental or full-fledged forms.

It's troubling enough that a single license plate recognition unit bolted to a telephone pole on a small town's main street might allow Barney Fife to build an extensive record of residents' comings and goings with minimal effort, or that a facial recognition program tacked onto the New York Police Department's city-wide CCTV network could automatically track and log your walk from Harlem to Chelsea. But a world is fast approaching in which Barney and Bill Bratton can share that information with each other immediately, without any meaningful oversight or restriction.

Trump's Immigration Crackdown Means ICE Will Track Your License Plate Even if You're Not an Immigrant

Fri, 26 Jan 2018 15:58:00 -0500

Immigration and Customs Enforcement (ICE) now has access to a national database of license plates, allowing it to track millions of cars on a daily basis regardless of the owners' immigration status. A no-bid contract awarded in December by the Department of Homeland Security will allow ICE "access to a commercially available License Plate Reader (LPR) database." Though the contract recipient is not identified in public documents, The Verge (which first uncovered the contract's existence) reports that ICE will use a database built and maintained by Vigilant Solutions, a California-based company that partners with law enforcement agencies across the country to collect scans of law-abiding citizens' plates. Each snapshot included in the database includes the license plate number, the attached vehicle's make and model, the state of registration, the GPS coordinates, and a timestamp, according to a "privacy impact assessment" released by DHS. License plate scanners are often attached to police cars, but some jurisdictions have them at fixed locations, including toll booths, bridges, and even ordinary road signs. "Some LPR systems also capture within the image the environment surrounding a vehicle, which may include drivers and passengers," the assessment notes. "Information can be collected from all vehicles that pass the camera." Despite the obvious privacy issues, the DHS assessment concludes that it's fine for ICE to have access to the database, in the name of "public safety and national security." Automated license plate readers have been a point of concern for the American Civil Liberties Union (ACLU) since 2013, when the organization released a report based on public records requests submitted to 600 police departments. The ACLU said the scanners were "becoming a tool for mass routine location tracking and surveillance." While license plate scanners can be used for legitimate law enforcement functions as part of criminal investigations, the ACLU says those instances account for "a tiny fraction" of the millions of license plate records tracking drivers, most of whom have no idea that they're in the database. The DHS contract states that "ICE is neither seeking to build nor contribute to a national public or private LPR database." But the immigration cops are happy to put the existing database to use. According to The Verge, ICE will be able to query the database for five years' worth of data, enough to track nearly every movement that a target might have made during that time. Agents will also get immediate email alerts when a particular license plate is spotted again. "Knowing the previous location(s) of a vehicle can help determine the whereabouts of subjects of criminal investigations or priority aliens to facilitate their interdiction and removal," the privacy assessment explains. "In some cases, when other leads have gone cold, the availability of commercial LPR data may be the only viable way to find a subject." The Verge also reports that DHS experimented with giving ICE access to license plate scanner databases in 2012, but the Obama administration ultimately backed away from the idea because of privacy concerns. The Trump administration, which has made it a priority to apprehend and deport illegal immigrants—even ones who pose no apparent risk to public safety or national security—seems to have no such qualms. To be clear, the national LPR database maintained by Vigilant Solutions does not discriminate between cars owned by illegal immigrants and those owned by legal residents of the United States. For that matter, it does not discriminate between vehicles owned by people suspected of committing any crime and everyone else. It's a blanket surveillance tool that tracks an estimated 100 million people every month as they commute, run errands, and visit friends. It ev[...]

Regulations Prevent Some People from Using Google Arts & Culture's Portrait-Matching Feature

Wed, 24 Jan 2018 09:55:00 -0500

(image) Tons of people recently downloaded the Google Arts & Culture app to discover which famous work of art they resembed, filling the internet with side-by-side images of selfies and portraits. While those in Illinois or Texas may be curious if they look like a Rembrandt portrait or Botticelli's Birth of Venus, Google refrained from releasing this portrait-matching feature in those states due to their stringent biometric regulations.

While the app itself has existed for a few years and offers additional features, the selfie feature went viral as scores of people began posting their accurate, or sometimes cruelly inaccurate (and hilarious) matches on social media. Using facial recognition technology, the app compares the image of its user to the thousands of famous portrairs housed in its database, offering up a series of "matches," so users can find their artistic dopplegangers. But people whose phones are registered in the state Illinois and Texas discovered they were unable to use this feature (though they could ask their out-of-state relatives to find their matches for them).

That's because the app uses biometrics or "biometric identifiers," according to the National Law Review, which include fingerprints, voiceprints, and facial geometry that can be used to identify a specific individual. Illinois in particular has led the forefront in biometric privacy lawsuits and regulations—having passed the illinois Biometric Information Privacy Act ("BIPA") in 2008. While other states like Washington and Texas have passed their own versions of BIPA, Illinois remains the most onerous. As a result of this legislation, companies like Facebook, Shutterfly, and others have all been the target of large class action lawsuits regarding their use of biometric data.

Though Google requires users to accept a disclaimer before using the feature that states the app only stores data as it actively seeks for matches, the company feared these security measures may not be enough to satisfy Illinois law. Unlike other states, in Illinois BIPA allows private citizens to sue companies for damages, when typically suits of this nature must be brought by the attorney general of that state.

Consequently, this regulation has deprived citizens of Illinois from enjoying other, possibly more useful features and products. Nest—another company specializing in thermostats and home security—declined to sell a doorbell technology that can recognize visitors in the state.

According to BIPA and the National Law Review, BIPA is an essential regulation, because unlike Social Security numbers and passwords that can be changed if necessary, biometrics are biologically unique and, when compromised, leave an individual without recourse, making this type of potential identity theft all the more dangerous.

But there are tradeoffs. As Matthew Kugler, an assistant professor at Northwestern University's Pritzker School of Law, told The Chicago Tribune, "(Maybe) people would much rather have their selfie feature than this privacy protection. That's something we'll have to see."

D.C. Prosecutors Dismiss 129 Inauguration Day Protest Cases

Fri, 19 Jan 2018 16:45:00 -0500

Federal prosecutors have dismissed all charges against 129 of the defendants arrested in connection with the protests in downtown D.C. on Inauguration Day. The decision comes one month after a local Superior Court jury acquitted the first six of the so-called "J20" protesters. Fifty-nine protesters still face charges. The group was arrested after some demonstrators broke store windows, started fires, and clashed with riot police in Washington's downtown business district. Civil libertarians harshly criticized the arrests, pointing out that the defendants included people who did not appear to have committed any violence or vandalism; the government was prosecuting them under a theory of liability that could criminalize a broad range of nonviolent dissent. Privacy advocates also criticized the digital search warrants sought in connection with the case, one of which compelled a webhost to reveal the I.P. addresses of every vistor to a site afiliated with the protests. In a "Notice of Intent to Proceed" filed with the court, lead prosecutor Jennifer Kerkhoff and U.S. Attorney Jessie Liu did not concede the innocence of the defendants whose cases were being dismissed. But "in light of the legal rulings by the court and the jury's verdicts in the first trial of these cases," they decided to proceed only with those defendants who "(1) engaged in identifiable acts of destruction, violence, or other assaultive conduct; (2) participated in the planning of the violence and destruction; and/or (3) engaged in conduct that demonstrates a knowing and intentional use of the black-bloc tactic on January 20, 2017, to perpetrate, aid or abet violence and destruction." The mention of a "black-bloc tactic" refers to the prosecution's initial theory of the case. Prosecutors claimed that by dressing in masks and black clothes while marching together with individuals who assaulted police and destroyed property, each defendant had aided and abetted those crimes, whether or not they had not committed them personally. Even before the jury's not guilty verdict in December, that theory found a skeptical response in court. In early November, Judge Lynn Leibovitz ruled that one of the two charges with which all of the arrested demonstrators were charged, Felony Engaging in a Riot, didn't actually exist under D.C. law. (In the district, federal prosecutors prosecute local laws.) Then, before the case was submitted to the jury, Judge Leibovitz took the unusual step of acquitting the defendants of the other Riot Act felony charge herself. That acquittal from the bench requires a judge to hold that the government has produced so little evidence that no reasonable juror could possibly find proof of guilt beyond a reasonable doubt. The jury was left to consider only the related lesser charges stemming from specific acts of alleged property damage, plus misdemeanor riot charges. It returned a verdict of not guilty to each. At a hearing this afternoon, Kerkhoff claimed that the government has identified specific video clips and or items of physical evidence that prove each of the remaining defendants committed at least one specific criminal act. One defendant still facing charges is Aaron Cantú, a staffer at the Santa Fe Reporter. Charges had been dismissed early on against six other journalists who said they were merely covering the protest rather than rioting, but prosecutors contend that Cantú participated in the destruction. (Another reporter, independent videographer Alexei Wood, was found not guilty at the first trial.) The next group of remaining defendants are scheduled to be tried beginning March 26.[...]

Stop Warrantless Snooping on Americans

Wed, 17 Jan 2018 00:01:00 -0500

Over the course of two hours last Thursday morning, Donald Trump offered two diametrically opposed takes on a surveillance bill making its way through Congress. Both were wrong. The FISA Amendments Reauthorization Act of 2017, which the House approved last week and the Senate is considering this week, has nothing to do with purported wiretapping at Trump Tower or any other direct surveillance of the Trump campaign, as the president initially suggested. But neither is its impact limited to "foreign bad guys on foreign land," as Trump said in a corrective tweet after alarmed advisers explained his administration's position to him. The bill would renew for six years Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes warrantless collection of communications between people in the United States and people in other countries when "a significant purpose" of the snooping is obtaining "foreign intelligence information." Although the official target is supposed to be a "non-U.S. person" (i.e., neither a U.S. citizen nor a legal permanent resident) who is believed to be located in a foreign country, the National Security Agency "incidentally" gathers a great deal of information about Americans, including their international emails, chat sessions, and phone calls. Once the information has been collected, the FBI can peruse it at will, looking for evidence of crimes that may have nothing to do with foreign intelligence (itself a very broad category), let alone terrorism or national security. Section 702 thus gives the FBI and other law enforcement agencies a way to dodge the Fourth Amendment's ban on unreasonable searches and seizures, which is generally understood to require a warrant based on probable cause for surveillance that reveals the content of private conversations. The bill that the House approved implicitly acknowledges this problem by requiring a warrant to search Section 702 data about Americans—but only when the FBI is looking for information about someone who is already the target of a criminal investigation (and only when the investigation is not related to national security). Criminal suspects, in other words, would receive more privacy protection than people who the government has no reason to believe have broken the law. The FISA Amendments Reauthorization Act also opens the door to reviving a suspended program that collected international communications "about" a foreign intelligence target. That kind of surveillance can pick up exchanges where neither party is the target and, due to technical problems in screening out domestic internet traffic, even when both parties are in the United States. Last week, by a vote of 233 to 183, the House rejected an amendment that would have required a warrant for searches of Section 702 data and for surveillance partly motivated by a desire to collect information about Americans. That amendment, known as the USA RIGHTS Act, also would have explicitly banned "about" surveillance and limited the use of Section 702 information to cases involving foreign intelligence or national security. The legislators who supported the USA RIGHTS Act included conservative Republicans such as James Sensenbrenner (Wis.) and Ted Poe (Texas) as well as progressive Democrats such as Jared Polis (Colo.) and Barbara Lee (Calif.). They were united by a belief that constitutional rights must be respected even when they inconvenience people who think invoking national security should be the end of the argument. "Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear," writes Sen. Rand Paul (R-Ky.), who cosponsored the USA RIGHTS Act in th[...]

Senate Votes to Shut Down Rand Paul Filibuster Against Surveillance Act Renewal

Tue, 16 Jan 2018 20:05:00 -0500

The Senate joined the House today in rejecting reforms to federal surveillance laws to make sure that the private communications of Americans are not snooped on by officials without warrants. The Senate voted 60-38 this afternoon in favor of cloture to end debate and to prevent any amendments prior to a formal up-down vote on the FISA Amendments Reauthorization Act of 2017. (Small clarification: Debate will be limited to 30 hours prior to the vote. So Paul and Wyden and others will be able to speak at length, but they won't be able to stop the vote.) This bill, should it pass, will renew and expand the snooping powers of Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments for another six years. Though the law has the world "foreign" in its name, the reality is that it has been used to collect and access communications from Americans, often without warrants and without our knowledge. A bipartisan group of lawmakers, led by Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have been trying to amend the bill so that it would require the FBI and National Security Agency (NSA) to get warrants in order to query or access any communications records (like emails or phone calls) from American citizens when they get drawn into international surveillance. In a press conference before the vote today, they were joined by other supporters in the Senate, including Sen. Elizabeth Warren (D-Mass.), who said, "The United States should not be in the business of warrantless searches of dragnet surveillance of American citizens. … Opposing warrantless mass surveillance is not a partisan issue." Today's vote means reforms to provide stronger Fourth Amendment protections from unwarranted searches will not happen and a filibuster can't actually stop the scheduled vote. The USA RIGHTS Act is essentially dead, unless the full vote fails. (Spoiler: Since the renewal bill survived a cloture vote, it won't fail.) So what did the Senate actually vote for in the FISA Amendments Reauthorization Act of 2017? This bill doesn't just renew Section 702 for six years; it also codifies permission for the FBI to access and use data secretly collected from Americans for a host of domestic federal crimes that have nothing to do with protecting America from foreign threats. It has added some unusually worded warrant requirements that will protect some people—but only when they're actually suspected and are being investigated for criminal activities. Furthermore the bill will give the NSA permission to attempt to restart what are known as "about" searches, access to communications that merely reference a foreign target, not just communications to and from that target. The NSA voluntarily ended these types of searches once it became clear they were gaining access communications that they had no authority to be viewing. This bill will allow them to attempt to restart it unless Congress acts separately to stop it. The vote was a nailbiter: They needed exactly 60 votes to end debate and prevent a filibuster. "Credit" for the passage of a bill that strips away a little bit more of Americans' privacy rights goes not just to fearmongering Republicans insisting that adding warrant protections expose us somehow to terror attacks, but to Sen. Claire McCaskill (D-Mo.), who cast the final vote to end debate and push the bill forward. Also worth noting: While Sen. Ted Cruz (R-Texas) had been fairly quiet during the public discussion and lead-up to the vote, he voted against cloture, siding with Paul and Wyden. Below, Paul gave an impassioned speech before the cloture vote that pretty much previewed what he would have been talking about if he had gotten the chance to filibuster: Senator @RandPaul: "I rise[...]

House Votes to Renew, Expand Authority to Snoop on Americans

Thu, 11 Jan 2018 13:15:00 -0500

Members of the House rejected today an effort to mandate that federal officials obtain warrants to access data collected secretly about Americans as part of the push to renew foreign intelligence surveillance authorizations. The USA RIGHTS Act, pushed in the house by Reps. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.) was not adopted. After an intense debate, the vote failed 183-233. The USA RIGHTS Act was an attempt to fix some serious privacy problems with the Foreign Intelligence Surveillance Act (FISA) authorities under Section 702. Though FISA is supposed to be used for snooping on foreign targets, it has been brought to bear against Americans and used for domestic crime cases, secretly and without warrants. Section 702 was set to expire at the end of 2017 and civil rights groups and privacy-minded lawmakers demanded reforms so that the FBI and National Security Administration (NSA) would be required to get warrants before accessing or even querying these databases for information and communications from Americans. That's what the USA RIGHTS Act was meant to do, and it failed. About two-thirds of the Republicans voted against the amendment and about two-thirds of the Democrats voted for it, so it wasn't really a "party line" vote, but the Democrats could have pushed it through had they all supported it. Several ranking Democrats openly supported increasing the powers of a surveillance state, even under a president they loathe. (House Minority Leader Nancy Pelosi and Intelligence Committee Ranking Member Adam Schiff, both Democrats, voted against Amash.) Instead, the House voted 256 to 164 in favor of the FISA Amendments Reauthorization Act of 2017. This bill doesn't just renew Section 702 for six years; it also codifies permission for the FBI to access and use data secretly collected by Americans for a host of criminal cases that have nothing to do with protecting America from foreign threats. There had been some attempts to get some warrant demands in the bill, but as surveillance expert Marcy Wheeler has noted, the law was worded so that it applies only if you're a suspect of a crime. That is to say, people suspected of criminal activity have greater privacy protections under the law than those who just have their data and communications snatched up en masse. The American Civil Liberties Union is not thrilled. A response from Neema Singh Guliani, their policy counsel: "The House voted today to give President Trump and his administration more spying powers. The government will use this bill to continue warrantless intrusions into Americans' private emails, text messages, and other communications. "No president should have this power. Yet, members of Congress just voted to hand it to an administration that has labeled individuals as threats based merely on their religion, nationality, or viewpoints. The Senate should reject this bill and rein in government surveillance powers to bring Section 702 in line with the Constitution." Now the reauthorization goes to the Senate, where Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have sponsored the Senate version of the USA RIGHTS Act. They have both already tweeted their responses to what happened in the House today: No American should have their right to privacy taken away! #FILIBUSTER — Senator Rand Paul (@RandPaul) January 11, 2018 If this #Section702 bill comes to the Senate, I will filibuster it. — Ron Wyden (@RonWyden) January 11, 2018 It's filibuster time! Clearly Paul and others need to try to book some time on Fox and Friends and try to convince President Donald Trump to switch his position back to opposing domestic surveillance. Update: Amash tweeted his response to the amen[...]