Florida sheriff’s deputies, under the guise of checking professional licenses, raided an Orlando-area barbershop using SWAT-like tactics back in 2010 and now a federal appeals court has ruled that the search was illegal.
In a ruling that allows a lawsuit against the department to proceed, the Eleventh Circuit Court of Appeals strongly criticized the Orange County Sheriff’s Office for storming the Strictly Skillz barbershop four years ago. “With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers’ licenses,” the court wrote. The raid was one of several deputies carried out against minority-owned barbershops and salons in 2010.
The justices said the deputies went too far in using a SWAT-like approach just to check whether barbers were licensed. In fact, inspectors from Florida’s Department of Business and Professional Regulation (DBPR) had inspected Strictly Skillz only two days prior to the raid and found everything in order.
Describing the raid as a “scene right out of a Hollywood movie,” the panel of judges wrote: “Unlike previous inspections of Strictly Skillz…the August 21  search was executed with a tremendous and disproportionate show of force, and no evidence exists that such force was justified.” The Fort Lauderdale Sun Sentinel reported that “no illegal or unlicensed activity was found” at the Pine Hills barbershop.
Working with DBPR, the deputy sheriffs claimed they suspected unlawful activity had taken place at the shop, which caters to minority customers, and others like it.
Tuesday’s ruling was a result of two deputies, Keith Vidler and Travis Leslie, petitioning that they should be immune from any civil litigation brought against them for doing their jobs. But the judges rejected their position, noting that they had twice before ruled in other cases that those participating in a warrantless criminal raid were not entitled to immunity. “Today, we repeat that same message once again,” the court wrote. “We hope that the third time will be the charm.”
Both the DBPR and the Sheriff’s Office launched internal investigations following a report by the Orlando Sentinel exposing the raids.
The DBPR terminated several employees and settled out of court with barbers. But the Sheriff’s Office concluded deputies did nothing wrong.
To Learn More:
Excessive Force Used in 2010 Barbershop Raid, Appeal Court Says (by Jeff Weiner, Fort Lauderdale Sun-Sentinel)
SWAT-Style Barbershop Raid Nets Harsh Rebuke (by Lorraine Bailey, Courthouse News Service)
Brian Berry v. Travis Leslie (Eleventh Circuit Court of Appeals) (pdf)
Uncovering information that should be available to the public has become increasingly difficult under the presidency of Barack Obama, an Associated Press bureau chief says. In some cases, it surpasses the secrecy of the George W. Bush administration.
The White House’s penchant for secrecy does not just apply to the federal government, according to AP’s Washington bureau chief, Sally Buzbee. During a joint meeting of news editors, she stated that the same kind of behavior is starting to appear in state and local governments.
Buzbee pointed out eight ways that the Obama administration is stifling public access to information – including keeping reporters away from witnessing any military action the United States takes as it battles Islamic State extremists in the Middle East.
“The public can’t see any of it,” Buzbee said, referring to the military campaign. “News organizations can’t shoot photos or video of bombers as they take off – there are no embeds. In fact, the administration won’t even say what country the [US] bombers fly from.”
She also expressed frustration with the government’s handling of the upcoming 9/11 trial, during which journalists are prohibited from looking at even non-classified court filings in real time.
“We don’t know what prosecutors are asking for, or what defense attorneys are arguing,” she said.
Meanwhile, basic information about the prison complex in Guantanamo Bay, Cuba is being withheld from the public, despite the fact that the Bush administration freely shared this data. The media is unable to learn how many inmates are on hunger strike in the infamous prison, or how frequently assaults on guards take place.
Freedom of Information Act (FOIA) requests have become harder than ever to process, Buzbee added. Government officials often fail to do so unless media outlets bring a lawsuit to bear.
At the same time, federal officials have begun pressuring state and local agencies to keep quiet.
“The FBI has directed local police not to disclose details about surveillance technology the police departments use to sweep up cellphone data,” Buzbee said. “In some cases, federal officials have formally intervened in state open records cases, arguing for secrecy.”
Raúl Castro, President of Cuba, said that he wants to start relations with the U.S., but first the U.S. must provide health insurance to all 46 million people who lack it; stop extrajudicial assassinations in sovereign countries through drone attacks; make higher education affordable for all; reform the prison system which has by far the highest incarceration rate in the entire world, with a drastically disproportionate amount of prisoners being minorities; grant Puerto Rico its sovereignty as required by the U.N. Charter, U.N. Declaration on Decolonization, and the popular referendum in Puerto Rico in 2012; halt the economic blockade, which has been ruled illegal for 22 straight years in the U.N.; close the detention facility and return the land to Cuba; turn over terrorists living freely in Miami who have bombed Cuban civilian airplanes, hotels and fishing boats; and free the three political prisoners who were investigating these groups to prevent further attacks.
Actually, he said: “We don’t demand that the U.S. change its political or social system and we don’t accept negotiations over ours. If we really want to move our bilateral relations forward, we’ll have to learn to respect our differences, if not, we’re ready to take another 55 years in the same situation.”
President Barack Obama has said Cuba: ”Has not yet observed basic human rights … I and the American people will welcome the time when the Cuban people have the freedom to live their lives, choose their leaders, and fully participate in this global economy and international institutions.” But he added: “We haven’t gotten there yet.”
Presumably Obama means when Cuba agrees to relinquish their right to self-determination, as guaranteed in the U.N. Charter, to join the U.S.-imposed neoliberal order. When Cuba agrees to gives up state control over industries like banking and telecommunications and opens them up to foreign investment, so more money can be shipped off the island instead of staying in the local economy and invested in the Cuban people. When Cuba agrees to “free trade” agreements, which would prevent labor and environmental safeguards while forcing local businesses to compete on an uneven playing field with multinational corporations that receive government subsidies, allowing them to undercut the price of local products. In short, when Cuba decides to respect private profit over the social welfare of its population.
U.S. calls for “democracy” and “human rights” in Cuba have an important historical connotation, which in reality has nothing to do with representative government nor human rights. The term is nothing more than a propaganda tool, instantly elevating the accuser to a superior moral status and subjecting the accused to an indefensible position regardless of the real facts, history and context.
The U.S. is not suggesting that Cuba should be judged by established human rights and international humanitarian laws — The Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights (which the U.S. has never ratified); and the International Covenant on Civil and Political Rights (which the U.S. took more than 20 years to ratify); the Convention on the Rights of the Child, which the U.S. has never ratified; and many others. It is suggesting Cuba abide by the criteria the U.S. sets out for them and sees fit to interpret itself.
The reality is that the United States does not get to serve as judge and jury for other countries’ internal affairs, just as they would laugh in the face of anyone who tried to do the same to them. To pretend that your demands are more important than the law that governs the international system is beyond condescending.
Incidentally, there is a United Nations Committee that impartially reviews compliance with the International Covenant on Civil and Political Rights, one of the few treaties which the U.S. has both signed and ratified. The committee, in its most recent annual report, found the U.S. non-compliant in many areas.
To start, they found that the U.S. “has only limited avenues to ensure that state and local governments respect and implement the Covenant, and that its provisions have been declared to be non-self-executing at the time of ratification,” which serves to “limit the legal reach and practical relevance of the Covenant.”
Among the many matters of concern is accountability for “unlawful killings during its international operations, the use of torture or other cruel, inhuman or degrading treatment or punishment of detainees in United States custody.”
The committee also noted numerous domestic problems, including “racial disparities in the criminal justice system,” “racial profiling,” “excessive use of force by law enforcement officials,” “criminalization of homelessness,” “National Security Agency surveillance,” and even “voting rights.”
Obama’s sanctimonious remarks about Cuba demonstrate his disregard for the law that applies to both countries equally, and his unwillingness to be held to the same standard that he preaches to others.
Matt Peppe writes about politics, U.S. foreign policy, and Latin America. You can follow him on twitter.
The militarization of American police forces hasn’t been paid for by just the federal government. Pro-Israel groups in the U.S. have also played a role by financing trips for hundreds of law enforcement officers to travel to the Middle East for counterterrorism training, according to Ali Winston, a contributor to the Center for Investigative Reporting (CIR).
Monies provided by such groups as the Anti-Defamation League, the American Jewish Committee’s Project Interchange and the Jewish Institute for National Security Affairs have made it possible for “at least 300 high-ranking sheriffs and police from agencies large and small – from New York and Maine to Orange County and Oakland, California” to attend privately funded seminars in Israel since the September 11, 2001, terrorist attacks, Winston discovered.
There, they have learned how Israeli security forces deal with demonstrators and armed threats by terrorists. The seminars include field trips to such sites as military installations, surveillance outposts, and checkpoints at the West Bank and the Israeli-Egyptian border. The training includes spending time observing operations conducted by Israel’s Border Patrol, Defense Forces, national police and intelligence services.
U.S. police officials who have undergone such training have come from the Los Angeles and New York police departments, the New York and New Jersey Port Authority Police Department, the New York Metropolitan Transportation Authority Police, and the Major County Sheriffs’ Association. The fact that the former chief of Missouri’s St. Louis County Police Department trained in Israel in 2011 recently came to light following the well-armed police response to protestors in St. Louis-based Ferguson.
Israeli training of U.S. police has also influenced the type of equipment being used. Security forces from both countries are now using some identical gear, including stun and tear gas grenades manufactured by the same U.S. companies—Combined Systems Inc. and Defense Technology Corp. A long-range “sound rifle” that emits ear-shattering noise to disperse crowds, which was used against 2005 West Bank protestors, was also used in the recent police action against protestors in Ferguson.
Shakeel Syed, executive director of the Islamic Shura Council of Southern California, told CIR that American police are often copying what Israel does in terms of crowd control and other techniques.
“Whether it is in Ferguson or L.A., we see a similar response all the time in the form of a disproportionate number of combat-ready police with military gear who are ready to use tear gas at short notice,” Syed said. “Whenever you find 50 people at a demonstration, there is always a SWAT team in sight or right around the corner.”
Israel’s security forces have also trained police in Mexico since 1994, originally in response to the Zapatista uprising in Chiapas.
The US routinely shares private information about its citizens of Arab and Palestinian descent with Israel, the New York Times revealed yesterday.
In an Op-Ed in the newspaper, James Bamford said that the former National Security Agency (NSA) contractor Edward Snowden told him that the US “routinely passed private, unedited communications to Israel”.
Documents leaked by Snowden reveal that the US passes on “unevaluated and unminimised transcripts, gists, facsimiles, telex, voice and Digital Network Intelligence metadata and content,” to Unit 8200, an elite Israeli intelligence department.
He said the intercepts included communications of Arab and Palestinian-Americans, whose relatives in Israel and the Palestinian territories could become targets based on the information.
Whistleblower Snowden said this is ”one of the biggest abuses we’ve seen”, Bamford reported.
Bamford cited a memorandum of understanding between the NSA and Unit 8200 outlining transfers that have occurred since 2009.
Snowden, a former NSA contractor, is wanted by the US on espionage charges after leaking thousands of secret NSA documents.
He claimed asylum in Russia, where he has been granted a three-year residency that allows him to travel abroad.
The Secrecy of the Legal Justifications for NSA Surveillance Violates International Human Rights Law
Let’s be clear. Under international human rights law, secret “law” doesn’t even qualify as “law” at all.
The Human Rights Committee confirms that law is only law if people know it exists and can act based on that knowledge. Article 19 of the ICCPR, protecting the freedoms of opinion and expression, requires that “to be characterized as a “law,” [a law] must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. . . . “1 This same conclusion applies to Article 17, the right to privacy. The European Court of Human Rights similarly notes in the context of surveillance:
[T]he law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.2
This includes not just the law itself, but the judicial and executive interpretations of written laws because both of those are necessary to ensure that people have clear notice of what will trigger surveillance.
This is a basic and old legal requirement: it can be found in all of the founding human rights documents. It allows people the fundamental fairness of understanding when they can expect privacy from the government and when they cannot. It avoids the Kafkaesque situations in which people, like Joseph K in The Trial and the thousands of people on the secret No Fly Lists, cannot figure out what they did that resulted in government scrutiny, much less clear their names. And it ensures that government officials have actual limits to their discretion and that when those limits are crossed, redress is possible.
Just how far has the US strayed from this basic principle in its mass surveillance practices? Very far. The existence of the mass surveillance was kept officially secret from the world for over a decade, from when it started in earnest in 2001 until June of 2013 after the Snowden revelations. The surveillance at first had no judicial authorization whatsoever. Various pieces of it were brought under judicial authority — email records in 2004, U.S. domestic telephone records in 2006 and backbone and other content collection in 2007 — but these court decisions also happened entirely in secret, so the public still didn’t know. Even today, large amounts of both the caselaw and the Executive Branch’s internal legal guidance have been kept from the public. To the extent we know anything about what the government is doing, this has been based on the piecemeal (and often highly fragmented) release of information as the result of dogged FOIA work and the legal cases brought by EFF plus our friends at the ACLU and EPIC.3
The breadth of the secret law is astonishing. For instance, only after the Snowden revelations did the government first admit its legal theories — that its mass spying relied on outrageous secret interpretations of section 215 of the PATRIOT ACT and section 702 of the FISA Amendments Act — neither of which even mentions mass surveillance much less authorizes it. We also now know about the NSA’s domestic telephone records collection and a past program that collected cell location information but we still don’t know the NSA’s full use of section 215. In fact, on September 2 the government sidestepped questions from the Second Circuit about whether its legal arguments in support of its telephone records collection could also support the mass collection of all credit card or bank records of Americans (hint: it could).
Nor are these secret, often extremely weak interpretations of otherwise public laws the only problem. Sometimes there’s no “law” at all. The NSA’s foreign collection processes, which are much more extensive than their domestic collections, are only ostensibly justified by an Executive Order, currently Executive Order12333. While E.O. 12333 is public, it’s not law at all and it certainly does not mention mass surveillance of millions of innocent people around the world. None of the government’s legal interpretations of it are public either. We’ve now seen evidence that this non-law with secret interpretations is the basis for the NSA’s mass surveillance of communications not just in one place, but at nearly every step of their journey: from remote access to computers, to man-in-the-middle attacks on messages in transit, to attacking direct service providers like Google, to tapping into the undersea cables. Yet the legal basis for these unprecedented intrusions into privacy remains opaque.
To bring the U.S. in line with international law, it must stop the process of developing secret law and ensure that all Americans, and indeed all people who may be subject to its surveillance have clear notice of when surveillance might occur. Terrorists and other criminals already well understand that they can be subject to surveillance during an investigation, so the people who are hurt are the innocent. Some operational details can and should remain secret, of course, but the law must be sufficiently clear to allow innocent people to understand when and how they may be subject to surveillance and, as they wish, take steps to regain their privacy. Only then will the U.S. fulfill its obligations under international law.
1 See UN Human Rights Committee, General Comment no. 34 on freedoms of opinion and expression (Article 19 ICCPR), available at: http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. The European Court of Human Rights applied the principles developed under Article 10 ECHR (right to freedom of expression) in Sunday Times in the case of Silver and others v. the United Kingdom, nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, 25 March 1983, paras. 85-86, which concerned the right to privacy of prisoners under Article 8 ECHR.
2 Malone v. the United Kingdom, no. 8691/79, 2 August 1984, para. 67.
3 All too often the Intelligence Community shamefully elides the fact that its public releases were due to pressure from our work and even then only releases what it decides to release, likely skewing what the public learns.
Via Amy Alkon, we learn of yet another bizarre moment in the world of security theater known as the TSA. It involves a young man from Orono, Minnesota, named Kahler Nygard, who for reasons no one will ever explain, happens to be on a “selectee” list for flying. It’s not quite the no fly list, but it’s the list where you get four S’s on your boarding pass (“SSSS”), and the TSA is then supposed to give you and your bags that extra level of privacy-destroying attention, including a full gropedown. Nygard claims he got the full groping in Minnesota, but the TSA (or potentially a Spirit airlines employee) apparently believed it was overlooked — though, they didn’t “realize” this until the flight was halfway to Denver. Frantic calls were made and the TSA was eagerly waiting for Nygard when he landed in Denver, leading him to be pulled off the plane first (that’s a self-recorded video where he cheerfully announces to those on board, “No, I have not committed a crime!”), at which point the TSA demands to grope him again:
Yes, after he’s already flown from Minneapolis (where he claims he was groped, though the TSA claims it was missed) to Denver, the TSA wishes to grope him (and search through his bags again). Apparently, they believe that he might magically reverse time and go back in time to blow up the plane or something.
The TSA agent, Andrew Grossman, first demands Nygard’s boarding pass. Nygard points out that he no longer has it (you don’t need it after you board), which stumps Grossman, leading him to have to make a phone call — where he helpfully tells whoever he’s talking to at the other end that Nygard is “pretty objectionable, filming me.” Nygard keeps asking why they need to search him, and the TSA has no good answer, other than saying they need to do so. Nygard asks if he’s being detained, and they don’t answer. He asks if it’s an order or a request, and the TSA’s Grossman again doesn’t really answer (other than to say that he’s following orders). Finally, Nygard just walks away, saying that if he’s not being detained, he’s leaving. The TSA claims it’s calling the Denver police, who apparently did not do anything to stop Nygard, who walked out of the airport without any further problems.
I’m curious if the TSA’s Blogger Bob will step up with an explanation for why a passenger should be groped post-flight.
Global Information Society Watch | September 2014
Years before Edward Snowden leaked his first document, human rights lawyers and activists have been concerned about a dramatic expansion in law enforcement and foreign intelligence agencies’ efforts to spy on the digital world. It had become evident that legal protections had not kept pace with technological – that the state’s practical ability to spy on the world had developed in a way that permitted it to bypass the functional limits that have historically checked its ability to spy. These concerns culminated in the International Principles on the Application of Human Rights to Communications Surveillance, a set of principles intended to guide policymakers, activists and judges to better understand how new surveillance technologies have been eating away at our fundamental freedoms and how we might bring state spying back in line with human rights standards.
Over a year and a half in the making, the final version of the Principles appeared on July 20, 2013, the first weeks of what we might call the Snowden era. An updated version was issued in May 2014. The Snowden revelations, once they started rolling in, affirmed the worst of our concerns. Intelligence services as well as law enforcement had taken it upon themselves to spy on us all, with little consideration for the societal effects. Lawmakers and even the executive had little comprehension of the capabilities of their own spymasters, and how our digital networks were being turned against all individuals everywhere. The need for the Principles was confirmed in spades, but the long and difficult job of applying them to existing practices was just beginning.
Since then, the Principles have, we hope, been a lodestar for those seeking solutions to the stark reality exposed by Snowden: that, slipping through the cracks of technological developments and outdated legal protections, our governments have adopted practices of mass surveillance that render many of our most fundamental rights effectively meaningless. The Principles have been signed by over 470 organizations and individual experts, by over 350,000 individuals throughout the world, and endorsed by the United Kingdom’s Liberal Democratic Conference, as well as European, Canadian, and German parliamentarians.The Principles have played a central guiding role in a number of the rigorous debates on the need to limit states’ increasingly expansive surveillance capacities. Their impact is already evident in, for example, the United States’ President Review Group on Intelligence and Communications Technologies report, the Inter-American Commission on Human Rights report and the the United Nations High Commissioner for Human Rights’ recent report on the right to privacy in the digital age. Their influence has also manifested in some of the administrative, legislative and administrative attempts to address surveillance problems post-Snowden. Perhaps most importantly, they have functioned as a rallying point for campaigning and advocacy initiatives around the world.
Below, we spell out some of the key features of the Principles. A more detailed explanation of the legal grounding for our conclusions in human rights jurisprudence can be found in a Legal Analysis and Background Materials document generated in support of the Principles.
Core Definitions in International Human Rights Law
The Principles begin with defining two core concepts that spell out the “what” and the “how” of measured surveillance. The first concept focuses on the type of data to be protected, while the second one ensures that a broad range of surveillance activity constitutes an interference with privacy rights. Outdated definitions of these two terms have led to expansive surveillance practices, as wide swaths of sensitive data or surveillance activities have been deemed outside the scope of legal protections. These definitional changes are designed to re-focus privacy protections away from artificial examinations of the kind of data or method of interference, and back on the ultimate effect on the privacy of the individual.
The Principles make clear that it’s time to move beyond the fallacy that information about communications does not pose as serious a threat to privacy as the content of communications. Information about communications, also called metadata, subscriber information or non-content data, can include the location of your cell phone, clickstream data, search logs, or anonymous online activity. Individually, these can be just as invasive as reading your email or listening to your phone calls. When combined and analyzed en masse, the picture painted by such data points can be far more revealing than the content of the communications they accompany. In spite of this reality, pre-Internet age (in fact, postal service-based!) legal conceptions have persisted in some legal systems, offering less or, in some instances, no protection at all to information that is not classified as ‘content’. What is important is not the kind of data is collected, but its effect on the privacy of the individual.
As explained in Legal Analysis and Background Materials which have been prepared for the Principles:
“The Principles use the term “protected information” to refer to information (including data) that ought to be fully and robustly protected, even if the information is not currently protected by law, is only partially protected by law, or is accorded lower levels of protection. The intention, however, is not to make a new category that itself will grow stale over time, but rather to ensure that the focus is and remains the capability of the information, alone or when combined with other information, to reveal private facts about a person or her correspondents. As such, the Principles adopt a singular and all-encompassing definition that includes any information relating to a person’s communications that is not readily available to the general public.”
This concern has been addressed by the latest report of the Office of the High Commissioner for Human Rights, who made clear that:
“From the perspective of the right to privacy, this distinction between [content and metadata] is not persuasive. The aggregation of information commonly referred to as “metadata” may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication.”
Given the revealing nature of metadata and content alike, states should be restrained from unchecked interference with any protected information: from revealing a speaker’s identity if it is not public; from wantonly vacuuming up the websites or social media one has visited; from stockpiling information on all the people one has communicated with; and tracking the ‘when’, ‘from where’, and ‘for how long’ of all our digital activities. In the pre-Internet age, the much more limited amount and kind of “metadata” available to law enforcement was treated as less sensitive than content, but given current communications surveillance capabilities, this can no longer be the case.
Communication Surveillance: Much of the expansive state surveillance practices confirmed during the past year depend on confusion over whether actual “surveillance” has occurred and thus whether human rights obligations even apply. Some have suggested that if information is merely collected and kept but not looked at by humans, no privacy invasion has occurred. Others argue that computers analysing all communications in real-time for key words and other selectors does not amount to “surveillance” for purposes of triggering legal privacy protections. Still others seek to reduce privacy protections to ‘harmful uses’ of information. Such legal variations can mean the difference between reasonable and carefully targeted investigations and a surveillance state built on the continuous mass surveillance of everyone.
In the digital age, where the most sensitive portions of our lives are constantly communicated over digital networks, it has never been more important to ensure the integrity of our communications. It means little whether the interference takes the form of real-time monitoring of Internet transmission, hacking into individuals’ mobile devices, or mass harvesting of stored data from third party providers. The mere recording of Internet transactions – even if ultimately unviewed – can have serious chilling effects on the use of our most vital interactive medium. We have to ensure that all acts of communications surveillance are within the scope of human rights protections and, hence, are “necessary and proportionate”.
On this front, the Office of the High Commissioner for Human Rights (OHCHR) report, made clear that:
“any capture of communications data is potentially an interference with privacy and, further, that the collection and retention of communications data amounts to an interference with privacy whether or not those data are subsequently consulted or used. Even the mere possibility of communications information being captured creates an interference with privacy, with a potential chilling effect on rights, including those to free expression and association.”
To remedy this issue, the Principles define “communications surveillance” as encompassing the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, or arises from or a person’s communications in the past, present or future.
Scope of Application
The Principles also address a long-standing problem arising from narrow interpretations adopted by some states regarding the extraterritorial application of their human rights obligations. Some have argued that the obligation to respect privacy and other human rights of individuals effectively stops at their national borders. In a world of highly integrated digital networks, where individual interactions and data routes defy any semblance of territorial correspondence, such distinctions are meaningless. The Principles therefore apply to surveillance conducted within a state or extraterritorially, and regardless of the purpose for the surveillance – including enforcing law, protecting national security, gathering intelligence, or another governmental function.
The OHCHR’s report explicitly underscores the principle of non-discrimination:
“Article 26 of the International Covenant on Civil and Political Rights provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law” and, further, that “in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
In this regard, the OHCHR’s report has underscored its importance:
“measures to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance.”
The 13 Principles
The substantive Principles are firmly rooted in well-established human rights law. Generally, any limits on human rights should be necessary, proportionate and for a set of permissible purposes. These limits must be set out in law, and cannot be arbitrary.
Under international human rights law, each right are divided in two parts. The first paragraph sets out the core of the right, while the second paragraph sets out the circumstances in which that right may be restricted or limited. This second paragraph is usually called the “permissible limitations” test.
Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Right
The OHCHR report has neatly summarized these obligations with respect ot Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits the arbitrary or unlawful interference with privacy rights
“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances. The limitation must be necessary for reaching a legitimate aim, as well as in proportion to the aim and the least intrusive option available…Any limitation placed on the right (an interference with privacy, for example, for the purposes of protecting national security or the right to life of others) must be shown to have some chance of achieving that goal. The onus is on the authorities seeking to limit the right to show that the limitation is connected to a legitimate aim. Furthermore, any limitation to the right to privacy must not render the essence of the right meaningless and must be consistent with other human rights, including the prohibition of discrimination. Where the limitation does not meet these criteria, the limitation would be unlawful and/or the interference with the right to privacy would be arbitrary.”
Legality – No Secret Laws: The principle of legality is a fundamental aspect of all international human rights instruments and the rule of law. It is a basic guarantee against the state’s arbitrary exercise of its powers. For this reason, any restriction on human rights must be prescribed by law. The meaning of “law” implies certain minimum qualitative requirements of clarity, accessibility, and predictability. Laws limiting human rights cannot be secret or vague enough to permit arbitrary interference.
On that front, the Office of the High Commissioner on Human Rights made clear that:
“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances.”
The need to meaningfully and publicly explain rights-infringing practices—while important in all contexts—is key to any effective check on communications surveillance as such practices tend to be surreptitious and difficult to uncover. Given the highly technical and rapidly evolving nature of communications surveillance, it is also incumbent that laws are interpreted publicly and not through secret processes effectively free from public scrutiny. The state must not adopt or implement a surveillance practice without public law defining its limits. Moreover, the law must meet a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of, and can foresee, its application. When citizens are unaware of a law, its interpretation, or the scope of its application, it is effectively secret. A secret law is not a legal limit on human rights.
In her landmark report Pillay made clear that:
“Secret rules and secret interpretations even secret judicial interpretations of law do not have the necessary qualities of “law”. Neither do laws or rules that give the executive authorities, such as security and intelligence services, excessive discretion; the scope and manner of exercise of authoritative discretion granted must be indicated (in the law itself, or in binding, published guidelines) with reasonable clarity. A law that is accessible, but that does not have foreseeable effects, will not be adequate. The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, and additional oversight.”
Laws should only permit communications surveillance by specified State authorities to achieve a Legitimate Aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
Under international human rights law, any restriction on our fundamental freedoms must generally pursue a permissible purpose or “legitimate aim.” These purposes or aims are often enumerated within the Article itself. The Principles therefore require that communications surveillance only be undertaken in pursuit of a predominantly important legal interest. Such interests have been described by Germany’s highest court as “the life, limb and freedom of the individual or such interests of the public a threat to which affects the basis or continued existence of the state or the basis of human existence.”
Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Rights, which prohibits arbitrary interference with the right to privacy.
The Office of the High Commissioner on Human Rights has similarly affirmed, in its 2014 Report, that “any limitation to privacy rights reflected in article 17 must be necessary for reaching a legitimate aim”. The Report elaborates:
“Surveillance on the grounds of national security or for the prevention of terrorism or other crime may be a “legitimate aim” for purposes of an assessment from the viewpoint of article 17 of the Covenant. The degree of interference must, however, be assessed against the necessity of the measure to achieve that aim and the actual benefit it yields towards such a purpose.”
Finally, communications surveillance cannot be employed in a manner that discriminates on the basis of grounds such as race, colour, sex, language religion or national origin, as such discrimination constitutes an illegitimate purpose.
Necessity, Adequacy and Proportionality
International human rights law makes clear that any interference with our fundamental freedoms must be “necessary in a democratic society”. In its General Comments No. 27, the Human Rights Committee clearly indicates that it is not sufficient that such restrictions serve a legitimate aim, they must also be necessary to it. Restrictive measures must also be adequate or appropriate to achieving their protective function. They must also be the least intrusive options amongst those which might be expected to achieve the desired result, and they must be proportionate to the interest to be protected. Finally, any restrictive measure which undermines the essence or core of a right is inherently disproportionate and a violation of that right.
Applying these foundational principles to the context of communications surveillance, the Principles affirm that:
Necessity: Often, a surveillance objective might be achieved using far less intrusive mechanisms. While it is by no means necessary to exhaust other options, it should be recognized the communications surveillance is inherently invasive and should not be a tool of first recourse.
Adequacy: It is not sufficient to show that a given surveillance practice is necessary for achieving a given objective, it must also be adequate and appropriate to it. As noted by the High Commissioner, at minimum, communications surveillance which interferes with privacy “must be shown to have some chance of achieving [its] goal.”
Proportionality: Communications surveillance should be regarded as a highly intrusive act that interferes with human rights and poses a threat to the foundations of a democratic society. Communications surveillance for investigative purposes, in particular, should only occur once the state has convinced an objective third party – a judge – that a serious threat to a legitimate interest exists and that the communications mechanism in question will yield information that will assist with that serious threat.
No voluntary cooperation:
Current digital networks and interactions entrust vast amounts of personal and sensitive data in the hands of a wide range of third party intermediaries, including ISPs, email providers, hosting companies and others. Through their discretionary decisions to comply (or not) with state surveillance requests, these intermediaries can dramatically impact on the privacy rights of all. Such voluntary sharing bypasses due process and poses a serious threat to the rule of law. The Necessary and Proportionate principles therefore prohibit any state communications surveillance activities in the absence of judicial authorization.
Contrary to many official statements, the modern reality is that state intelligence agencies are involved in a much broader scope of activities than simply those related to national security or counterterrorism. The Necessary and Proportionate Principles state that communications surveillance (including the collection of information or any interference with access to our data) must be proportionate to the objective they are intended to address. And equally importantly, even where surveillance is justified by one agency for one purpose, the Principles prohibit the unrestricted reuse of this information by other agencies for other purposes.
The Office of the High Commissioner for Human Rights report also emphasized that point:
“The report explained that the absence of effective use limitations has been exacerbated since September 11, 2001, with the line between criminal justice and protection of national security blurring significantly. The resultant sharing of data between law enforcement agencies, intelligence bodies and other State organs risks violating Article 17 of the Covenant on Civil and Political Rights, because surveillance measures that may be necessary and proportionate for one legitimate aim may not be so for the purposes of another.”
Integrity of Communications And Systems:
No law should impose security holes in our technology in order to facilitate surveillance. Undermining the security of hundreds of millions of innocent people in order to ensure surveillance capabilities against the very few bad guys is both overbroad and short-sighted, not least because malicious actors can use these exploits as readily as state agents. The assumption underlying such provisions—that no communication can be truly secure—is inherently dangerous, akin to throwing out the baby with the bathwater. It must be rejected.
The Office of the High Commissioner for Human Rights report supports that conclusion, stating that:
“The enactment of statutory requirements for companies to make their networks “wiretap-ready” is a particular concern, not least because it creates an environment that facilitates sweeping surveillance measures.”
Notification And Right To An Effective Remedy
Notification must be the norm, not the exception. Individuals should be notified that access to their communications has been authorized with enough time and information to enable them to appeal the decision, except when doing so would endanger the investigation at issue. Individuals should also have access to the materials presented in support of the application for authorisation. The notification principle has become essential in fighting illegal or overreaching surveillance. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.
Before the internet, the police would knock on a suspect’s door, show their warrant, and provide the individual a reason for entering the suspect’s home. The person searched could watch the search occur and see whether the information gathered went beyond the scope of the warrant. Electronic surveillance, however, is much more surreptitious. Data can be intercepted or acquired directly from a third party such as Facebook or Twitter without the individual knowing. Therefore, it is often impossible to know that one has been under surveillance, unless the evidence leads to criminal charges. As a result the innocent are the least likely to discover their privacy has been invaded. Indeed, new technologies have even enabled covert remote searches of personal computers and other devices. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.
The OHCHR report lays out four characteristics that effective remedies for surveillance-related privacy violations must display:
“Effective remedies for violations of privacy through digital surveillance can thus come in a variety of judicial, legislative or administrative forms. Effective remedies typically share certain characteristics. First, those remedies must be known and accessible to anyone with an arguable claim that their rights have been violated. Notice (that either a general surveillance regime or specific surveillance measures are in place) and standing (to challenge such measures) thus become critical issues in determining access to effective remedy. States take different approaches to notification: while some require post facto notification of surveillance targets, once investigations have concluded, many regimes do not provide for notification. Some may also formally require such notification in criminal cases ; however , in practice , this structure appears to be regularly ignored.”
The 2014 OHCHR report continues, stressing the importance of a “prompt, thorough and impartial investigation”; a need for remedies to actually be “capable of ending ongoing violations”; and noting that “where human rights violations rise to the level of gross violations…as criminal prosecution will be required”.
Safeguards for International Cooperation:
Privacy protections must be consistent across borders at home and abroad. Governments should not bypass national privacy protections by relying on secretive informal data sharing agreements with foreign states or private international companies. Individuals should not be denied privacy rights simply because they live in another country from the one that is surveilling them. Where data is flowing across borders, the law of the jurisdiction with the greatest privacy protections should apply.
More to Be Done: The Necessary and Proportionate Principles provide a basic framework for governments to ensure the rule of law, oversight and safeguards. They also call for accountability, with penalties for unlawful access and strong and effective protections for whistleblowers. They are starting to serve as a model for reform around the world and we urge governments, companies, NGOs and activists to use them to structure necessary change.
But while the Principles are aimed at governments, government action isn’t the only way to combat surveillance overreach. All of the communications companies, Internet and telecommunications alike, can help by securing their networks and limiting the information they collect and retain. Online service providers should collect the minimum amount of information for the minimum time that is necessary to perform their operations, and to effectively obfuscate, aggregate and delete unneeded user information. This helps them in their compliance burdens as well: if they collect less data, there is less data to hand over to the government. Strong encryption should be adopted throughout the entire communications chain and, where possible, for data in storage.
It’s clear that under the cloak of secrecy, malfunctioning oversight and the limited reach of outdated laws, the practice of digital surveillance in countries from the far north to the far south, have overrun the bounds of human rights standards. We all hope to see activists around the world showing exactly where a country has crossed the line, and how its own policymakers and the international community might rein it back. We must call for surveillance reform to ensure that our national surveillance laws and practices comply with human rights standards and to ensure cross-border privacy are in place and effectively enforced. Working together, legal plus technical efforts like deploying encryption, decentralization of services and limiting information collected, can serve as a foundation for a new era of private and secure digital communications.
- International Principles on the Application of Human Rights to Communications Surveillance, updated July 2014 https://neccessaryandproportionate.org/text
- EFF, Article19: Legal Analysis and Background Materials: International Principles on the Application of Human Rights to Communications Surveillance, May 2014 https://en.necessaryandproportionate.org/LegalAnalysis
- The Right to Privacy in the Digital Agehttp://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx
- Report of the High Commissioner for Human Rights on the right to privacy in the digital age
- Annual Report of the Inter-American Commission on Human Rights 2013. Annual Report of the Office of the Special Rapporteur for Freedom of Expression http://www.oas.org/en/iachr/expression/docs/reports/2014_04_22_%20IA_2013_ENG%20_FINALweb.pdf
- Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).
- UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, A/HRC/13/37
- UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, A/HRC/23/40
Bureau of Investigative Journalism | September 15, 2014
The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists’ sources and communications from government scrutiny and mass surveillance.
The Bureau’s application was filed with the European Court of Human Rights on Friday. If the court rules in favour of the application it will force the UK government to review regulation around the mass collection of communications data.
The action follows concerns about the implications to journalists of some of the revelations that have come out of material leaked by Edward Snowden.
These have made it clear that by using mass surveillance techniques, government agencies can not only collect, store and scrutinise the content of electronic communications but also analyse masses of metadata – the details about where digital communications such as emails originate and the subject area of those communications.
Gavin Millar QC, who is working on the case with the Bureau, believes UK authorities are routinely carrying out such data collection and analysis and says this enables a sophisticated picture to be developed of a journalist’s or organisation’s network of contacts, sources and lines of enquiry as well as materials, subjects and persons of interest to them.
Click here for a summary of the case.
Why data harvesting is a human rights issue – find out why we’re doing this.
Gavin Millar QC: A breach of international law.
Eugene V. Debs nearly 100 years ago was a political prisoner in the United States for the “crime” of opposing the United States government’s participation in World War I and conscription of people to fight in that war. In March of 1919, the US Supreme Court, pointing to the Espionage Act of 1917 for justification, upheld Debs’ conviction by a trial jury and ten-year prison sentence for making antiwar comments in a June 16, 1918 Canton, Ohio speech.
Justice Oliver Wendell Holmes, Jr. wrote the Supreme Court’s short Debs v. United States opinion that upheld the conviction and ten-year prison sentence of Debs for two charges that Holmes described as follows:
This is an indictment under the Espionage Act of June 15, 1917… It has been cut down to two counts, originally the third and fourth. The former of these alleges that on or about June 16, 1918, at Canton, Ohio, the defendant caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech, set forth. The fourth count alleges that he obstructed and attempted to obstruct the recruiting and enlistment service of the United States and to that end and with that intent delivered the same speech, again set forth.
In effect, Debs was incarcerated for exercising his right to free speech regarding two political matters — the US government choosing to participate in World War I and the US government using the draft to help fight that war. One may expect the justices to have reread the First Amendment to the US Constitution and promptly overturned Debs’ conviction. However, Holmes explains that a prior Supreme Court decision had already settled the inapplicability of Debs’ First Amendment defense.
The prior Supreme Court decision, announced just seven days earlier, was for the case Schenck v. United States. The Supreme Court’s Schenck opinion allowed Holmes in the Debs opinion to bypass offering ridiculous contortions of logic to justify throwing a prominent labor and political leader in prison for criticizing the heart of the US government’s war policy. Instead, Holmes could just summarily deem Debs’ conviction and sentence constitutional and legitimate based on precedent. Here is how Holmes, again writing for the Supreme Court, argued in the court’s Schenck opinion that a flier opposing the draft was not protected under the First Amendment:
We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.
So there you have it: the First Amendment protects your free speech so long as that speech cannot affect US government policy, or at least so long as your free speech cannot pose a serious threat to something the Supreme Court thinks it is very important to promote, such as the US government participating in World War I and forcing Americans to fight in that war.
Debs was an eloquent opponent of this war, and for that, coupled with his prominence in American labor and politics, he was imprisoned.
In addition to his labor union activities, Debs had run four times as the Socialist Party nominee for US president before his conviction, winning more votes each time. In his last pre-imprisonment run in 1912, Debs won over 900,000 votes — 6.0% nationwide.
In 1920, while serving his prison term, Debs again ran for president, winning a few thousand more votes than in 1912 and 3.4% nationwide.
Debs knew his June 16, 1918 Canton, Ohio speech — despite his care in presenting the speech such that it would comply with US government speech restrictions — could lead to his imprisonment. Indeed, in his speech, Debs talks of other individuals who had been imprisoned for the “crime” of exercising their right to free speech. Debs explains near the beginning of the speech why he spoke anyway:
I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think; but I am not going to say anything that I do not think. I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.
Debs’ complete speech may be read here.
Watch here actor Mark Ruffalo present a reading of some excerpts concerning war from the speech:
Trustee James Montgomery, who last Friday publicly broached his misgivings about the university’s decision to hirefire Salaita, was the sole vote on behalf of Salaita. Though Montgomery had originally signed a statement supporting Chancellor Wise, he said, “I’m just someone who has the humility to be able to say that I think I made a mistake and I don’t mind saying it.” Here is his eloquent testimony.
Needless to say, the vote today sucks, and there is no use sugar-coating it. While it’s testament to the movement we’ve mounted that the Board was forced to publicly confront this issue, and that we managed to persuade one trustee to change his mind (from reports I’ve heard, other trustees did as well, but they are student trustees who have no voting power), our power and our principles proved in the end not to be enough to match the donors’ purse strings.
So it looks like a legal remedy will now be pursued. I’m using the passive voice because I have no idea what Salaita and his lawyers are planning, though the Center for Constitutional Rights, which is representing Salaita, did put out a statement after the Board vote. And the ever charming Chair of the Board of Trustees had this to say:
“I assume the attorneys will reach out and work something out or understand their position more clearly. We are not looking to be held up. We want to be fair but we don’t want to be pushovers,” board Chairman Christopher Kennedy said after the meeting. “Either they will sue or we will settle. It is hard to predict what another party will do. … Am I going to give you my playbook on a negotiating matter?”
The legal route is one path, an important path, but it’s not the only path, and more important, it’s not our path. That is, the path of all of us who have spoken out on this case.
Our path is not legal; it is political. It’s not about lawyers, it’s not about courtrooms. It’s about principles and movements, words on the web, bodies on the ground, and voices in the street. It is about power. How we deploy that power, I don’t know. That we will deploy that power, I am sure. Now is the time to think creatively and collectively.
In the meantime, I wanted to take note of a comment Chancellor Wise made in an interview to the Chronicle of Higher Education:
People are mixing up this individual personnel issue with the whole question of freedom of speech and academic freedom.
It’s a telling statement, revealing an archipelago of assumption that I’ve been tackling in all my work since my first book. In Wise’s world, freedom of speech stands on one side, employment on the other, and never the twain shall meet. It’s almost as if, to her mind, we’re making a category error when we speak of both in the same breath.
And it’s not just Wise who thinks this way. About two weeks ago on Twitter, I heard a similar remark from a young progressive journalist (I won’t link to the comment because I don’t want to draw negative attention or criticism to this person, who went on to express a willingness to rethink her position). Rights and repression are one thing, employment sanctions another. The philosopher Gerald Dworkin voiced an attenuated version of that argument, too.
Yet as I’ve argued on this and other blogs countless times, employment sanctions are in fact one of the most common methods of political repression in this country. Remember that anecdote Tocqueville reported in his journals, about how he asked a doctor in Baltimore why in a country that had so much formal religious freedom there was such a compulsion toward orthodoxy. Without hesitating, the doctor said it was all about the making and breaking of private careers.
If a minister, known for his piety, should declare that in his opinion a certain man was an unbeliever, the man’s career would almost certainly be broken. Another example: A doctor is skilful, but has no faith in the Christian religion. However, thanks to his abilities, he obtains a fine practice. No sooner is he introduced into the house than a zealous Christian, a minister or someone else, comes to see the father of the house and says: look out for this man. He will perhaps cure your children, but he will seduce your daughters, or your wife, he is an unbeliever. There, on the other hand, is Mr. So-and-So. As good a doctor as this man, he is at the same time religious. Believe me, trust the health of your family to him. Such counsel is almost always followed.
The state needn’t punish men and women for their heresies; the private sector will do it for them. That’s why during the McCarthy years so few people went to jail. Two hundred tops. Because it was in the workplace that Torquemada found his territory: some twenty to forty percent of employees, monitored, investigated, or otherwise subject to surveillance for their beliefs. The ruling elites in this country have always understood what Hamilton wrote in Federalist 79:
In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.
Which brings us back to Steven Salaita. As I argued on Labor Day, it’s easy to see his case as simply one of academic freedom or the rights of tenured professors. It is that, but it’s more. It’s about the use of employment sanctions for political ends, the peculiarities and particularities of Fear, American Style, which do not apply only to Steven Salaita. They apply to all at-will employees, to that terra incognita of private governance that is the American workplace. Salaita is but the latest in a long line of victims.
While the pro-Israel forces show no compunction about using the weapons of state to enforce their orthodoxies, the sphere of employment, particularly in the academy, where one most often hears views critical of Israel, will become increasingly the scene of the censor. It already has: as I said the other day, my first battle over Israel/Palestine was to defend an adjunct in my department who had been fired for his (mistakenly construed) views on Israel/Palestine.
The issue is not simply Israel/Palestine; it’s the growing assault on fundamental rights and the increasing push toward precarity that has become the experience of workers everywhere.
If we’re going to fight this in the academy, we’re going to have to fight it the way every worker has ever had to fight: not only in courts of law, but also in the streets; not just with the help of lawyers, but also with help of each other; not simply with our smarts, but also with our feet. With unions, strikes, boycotts—the entire repertoire of collective action and militancy that gave this country whatever minimal (and ever fading) semblance of decency it has managed to achieve.
Ferguson PD Lies About Why It Released Videotape Of Store Robbery, Lies Some More When Confronted With The Facts
In the wake of the shooting of Michael Brown, the Ferguson Police made several ill-advised moves. The biggest was the paramilitary force that greeted protests, looking for all the world like a unit flown in from Kabul, followed shortly thereafter by the detainment of several journalists. The decision to withhold the officer’s name was also received poorly, but this was complicated by one baffling move — the release of a store surveillance tape that appeared to show Brown stealing cigarillos from a local store shortly before he was shot dead.
This tape’s release was purely self-motivated. Even the Dept. of Justice — which had stepped in shortly after everything went to hell in Ferguson — advised against it. The only conceivable reason for the release was a post-facto “justification” of Officer Darren Wilson’s decision to shoot an unarmed man several times.
But the Ferguson PD tried to cover up this motivation. Matthew Key at TheBlot has dug into the events surrounding the release of the surveillance tape and found nothing but Ferguson PD lies.
The chief of police for the Ferguson Police Department misled members of the media and the public when he asserted that his hand was forced in releasing surveillance footage that purported to show 18-year-old resident Michael Brown engaged in a strong-arm robbery at a convenience store minutes before he was fatally shot by a police officer.
The tape — released on the same day the PD belatedly revealed the name of the officer who shot Brown — was supposedly released as the result of “multiple” FOIA requests from journalists and other citizens.
“We’ve had this tape for a while, and we had to diligently review the information that was in the tape, determine if there was any other reason to keep it,” Jackson said at the press event. “We got a lot of Freedom of Information requests for this tape, and at some point it was just determined we had to release it. We didn’t have good cause, any other reason not to release it under FOI.”
But another FOIA request exposed this claim for what it is. TheBlot used a FOIA request to obtain all FOIA requests sent to the Ferguson PD. And it couldn’t find a single one that specifically requested that tape.
Last month, TheBlot Magazine requested a copy of all open records requests made by members of the public — including journalists and news organizations — that specifically sought the release of the convenience store surveillance video. The logs, which were itself obtained under Missouri’s open records law, show only one journalist — Joel Currier with the St. Louis Post-Dispatch — broadly requested any and all multimedia evidence “leading up to” Brown’s death on Aug. 9.
With that lie uncovered, the Ferguson Police decided to double down. A statement issued to TheBlot claimed that multiple other FOIA requests were made orally, due to heavy traffic to the city’s website and email server. Possibly believable, but was anyone logging these verbal requests? And could this be where the multiple requests for the surveillance video originated? The answers are “yes,” “well, actually no,” and “shut up.”
The first response:
City of Ferguson attorney Stephanie Karr said that “many requests were made verbally due to the fact that the City’s website and email were down at several points during that week” and that “city personnel cataloged all requests and treated them in the same manner as it would any Sunshine Law request.
So, if they were logged, there’d be some record of a bunch of people asking for the release of the surveillance tape, right? Cue backpedal #1:
Karr responded to a request for comment Saturday afternoon by denying the City of Ferguson had a log of verbal records requests.
“You assume that the Custodian of Records, somehow, logged every single question, statement or request for information, verbal or otherwise, made to every single police officer, city employee, consultant, appointed official or elected official,” Karr told TheBlot by e-mail. “That assumption is, quite simply, wrong and unrealistic.”
Actually, TheBlot didn’t “assume” anything. It simply took Karr’s first statement at face value. Apparently, everything about the first statement was a lie. On top of that, the Ferguson PD may have violated the Sunshine Law by not logging requests it filled or denied. TheBlot has a request in for the logged verbal FOIA requests and in the meantime notes that the PD is still withholding both the incident report for the shooting (which may not even exist) as well as the incident report for the robbery.
Just a little more evidence pointing towards the unreliability of public officials, especially when caught in the middle of misconduct. Not only has the PD apparently lied about its reasons for releasing the tape, but it continues to withhold information about its involvement in the shooting of Michael Brown. Earlier, it claimed Officer Wilson suffered injuries — possibly severe — during his “interaction” with Brown. Those have proven false as well, with Wilson’s own post-shooting text messages saying nothing about sustaining an injury as well as citizen video showing Wilson standing around the shooting scene for several minutes without seeking medical attention.
Odds are, no one directly requested this video. The release of the video coincided with the forced release of the officer’s name in a blatant attempt to provide justification for his actions. While undoubtedly true that the city’s website and email server have been hit pretty hard during the past few weeks, that’s no excuse for city employees to fulfill or deny FOIA requests without documentation — especially when its track record so far shows an urge to bury and obfuscate.