Federal Judge: Only Powered-Off Cell Phones Deserve Privacy Protections

By Chris Soghoian | ACLU | May 15, 2013

A federal magistrate judge in New York recently ruled that cell phone location data deserves no protection under the Fourth Amendment and that accordingly, the government can engage in real-time location surveillance without a search warrant. In an opinion straight from the Twilight Zone, magistrate judge Gary Brown ruled two weeks ago that “cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.”

The case in question involved a physician who the DEA believed had issued thousands of prescriptions for pain killers in exchange for cash. In March of this year, the DEA had obtained a warrant for his arrest, and, not knowing where he was, sought an order from magistrate judge Brown forcing the phone company to provide real-time data identifying the location of the physician’s phone.

Although the DEA agents requested a search warrant and the judge found that there was probable cause to believe that the cell phone location data would assist in the location and apprehension of an individual for whom there was already a valid arrest warrant, the judge later published a 30-page opinion further stating that he didn’t think the government needed to seek a search warrant in the first place.

Don’t Want the Government Tracking You? Turn Your Phone Off

In his puzzling opinion, the judge squarely criticizes people naive enough to expect privacy while also leaving their cell phones on when they’re not using them.

Given the ubiquity and celebrity of geolocation technologies, an individual has no legitimate expectation of privacy in the prospective location of a cellular telephone where that individual has failed to protect his privacy by taking the simple expedient of powering it off.

…

As to control by the user, all of the known tracking technologies may be defeated by merely turning off the phone. Indeed—excluding apathy or inattention—the only reason that users leave cell phones turned on is so that the device can be located to receive calls. Conversely, individuals who do not want to be disturbed by unwanted telephone calls at a particular time or place simply turn their phones off, knowing that they cannot be located.

The Catch-22 here is that the only people who the judge believes would have any reasonable expectation of privacy are those whose phones are turned off (and thus, not generating any location data that the government could access, even with a warrant). And it ignores the necessity of keeping your cell phone turned on for communicating with family or for work.

That consumers are dumb enough to willingly share their location using the “Girls Around Me” app (which the judge specifically calls out by name, although the wrong one), only further justifies covert, warrantless government surveillance:

Given the notoriety surrounding the disclosure of geolocation data to retailers purveying soap powder and blue jeans to mall shoppers, the police searching for David Pogue’s iPhone and, most alarmingly, the creators and users of the Girls Around You app, cell phone users cannot realistically entertain the notion that such information would (or should) be withheld from federal law enforcement agents searching for a fugitive.

This is, in a word, ridiculous. There is a big difference between location information you knowingly share with a select group of friends (or, in fact, the world) and information collected about you without your knowledge or consent. Someone might be happy to share their location with a few friends by “checking in” using Foursquare while at a music festival, but not want law enforcement to access that same information. And, they would still reasonably expect that their location a week later while at an Alcoholics Anonymous meeting or abortion clinic should remain private. Sharing location data isn’t and shouldn’t be all or nothing.

We are also baffled by the judge’s willingness to tie a reasonable expectation of privacy to the use of a cell phone power button. We’re not sure if the judge has watched the Onion’s spoof news video describing a fictional “Google Opt Out Village” for people who don’t want to be tracked by the advertising company, but the logic in his opinion is consistent with the absurdity of that spoof. If you don’t want Google to track you, stop using all modern technology and move to a remote village. If you don’t want the government to covertly track your phone, turn it off and leave it off. What could be simpler, right?

Related articles

• Federal judge denies motion to throw out evidence gathered via fake cell tower (arstechnica.com)
• District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment (volokh.com)

Obama to support Internet wiretapping program

RT | May 08, 2013

United States President Barack Obama is likely to endorse a Federal Bureau of Investigation effort that would ensure all Internet companies in the US provide a way for the government to conduct undetected, backdoor surveillance.

The FBI has been considering solutions to their so-called “Going Dark” problem as intricate methods of encryption and advances in technology have made it increasingly difficult for the federal government and law enforcement to gain access to online communications conducted in the shadows of the Web. Should the latest efforts of the FBI move forward, though, Internet companies that act as any conduit for correspondence of any kind would be heavily fined if they don’t include in their infrastructure a way for the government to eavesdrop on that dialogue in real time.

At a press conference in Washington, DC in March, FBI general counsel Andrew Weissmann said the Department of Justice was determined to have the means to wiretap any online communication by 2014 and called it “a huge priority for the FBI.” Further developments last month revealed that the FBI was considering a fine-based model under which Internet companies would be forced to comply or risk being penalized beyond repair.

On Tuesday, New York Times reporter Charlie Savage cited Obama administration officials as saying the president “is on the verge of backing” that very plan.

Savage explained that while companies would be allowed to operate without giving the government backdoor access, the fees would likely limit the number of entities willing to challenge the order. As RT reported last month, a company that doesn’t comply with the FBI’s orders would be fined $25,000 after 90 days. Additional penalties would then be tacked on every day an Internet service provider, website or other company fails to comply — with the price of the penalty doubling each day they don’t assist investigators.

“While the FBI’s original proposal would have required Internet communications services to each build in a wiretapping capacity, the revised one, which must now be reviewed by the White House, focuses on fining companies that do not comply with wiretap orders,” wrote Savage. “The difference, officials say, means that start-ups with a small number of users would have fewer worries about wiretapping issues unless the companies became popular enough to come to the Justice Department’s attention.”

Savage quoted a statement in his article from Weissmann in which the FBI attorney said, “This doesn’t create any new legal surveillance authority.” Instead, said Weissman, “None of the ‘going dark’ solutions would do anything except update the law given means of modern communications.”

“This always requires a court order,” he said.

Coincidently, that same issue has had major developments in its own right this week. On Wednesday morning, CNET reporter Declan McCullagh wrote that the Justice Department circulated memos in which they insisted that obtaining a search warrant isn’t necessary to eavesdrop on Internet communication of any sort.

“The US Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages and other private files, internal documents reveal,” wrote McCullagh, citing a government documents obtained by the American Civil Liberties Union and provided to CNET.

According to McCullagh, those documents include very specific instructions from high-importance officials that demonstrate the Justice Department’s disinterest in applying established law when it comes to eavesdropping on Americans. While Weissmann made the argument that the FBI plan reportedly backed by the president won’t change what rules the DoJ operates by, the memos obtained by McCullagh paints the Obama White House as an administration unwilling to work with the already broad surveillance powers provided to it.

In one memo unearthed by the ACLU, McCullagh said the US attorney for Manhattan instructed his office that an easy-to-obtain legal paper that requires no judicial oversight is all that’s needed to obtain personal correspondence.

“[A] subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly ‘all records from an ISP,’” McCullagh wrote.

In another instance, McCullagh said the US attorney in Houston, Texas obtained the “contents of stored communications” from another ISP without getting a judge to sign a warrant.

One current law that limits how and when authorities can obtain a suspect’s email pursuant to a criminal investigation, the Electronic Communication Privacy Act, provides that while a warrant is needed for relatively recent correspondence, a comparably easier to get administrative subpoena is all that’s required to get communication older than 180 days. Provisions of the ECPA have been largely unchanged since it was passed in the mid-1980s, but last month a Senate Judiciary Committee approved an amendment that would require a warrant in all instances.

In advocating for fewer restrictions when obtaining store communication, the FBI’s Wessmann said in April that another law, 1994’s Communications Assistance for Law Enforcement Act, needs to be expanded so investigators can leap over current hurdles that keep them from conducting real time wiretaps of online discussions.

“You do have laws that say you need to keep things for a certain amount of time, but in the cyber realm you can have companies that keep things for five minutes,” he said. “You can imagine totally legitimate reasons for that, but you can also imagine how enticing that ability is for people who are up to no good because the evidence comes and it goes.”

In the wake of the Boston Marathon bombing on April 15, renewed calls across the country have been made to make it easier for investigators to quickly conduct surveillance — in and off the Web. A recent poll found that roughly two-thirds of Americans favored more surveillance cameras in public places, and now the nation’s top law officials are asking for increased spy power not just on the streets but on the Web.

Earlier this month, Google Chairman Eric Schmidt said at a discussion in Washington, “When you come across an advocate for one thing — an advocate for security, and advocate for privacy — they’re often arguing from a position without understanding that it’s a two-edged sword.”

“For example, very strong encryption would allow you and I to have a very, very secure communication: If we were criminals, if we were dissidents, if we were martyrs or if we were just doing a little business,” he said. “If you could figure out a way to ban very strong encryption from evil people and only allow good people…then this would be easy,” he said.

Related articles

• Obama administration bypasses CISPA by secretly allowing Internet surveillance (alethonews.wordpress.com)
• Spy, or pay up: FBI-backed bill would fine US firms for refusing wiretaps (alethonews.wordpress.com)
• To Ease Internet Snooping, Feds Promise To Ignore Privacy Violations (reason.com)

Automated License Plate Readers Threaten Our Privacy

By Jennifer Lynch and Peter Bibring | EFF | May 6, 2013

Law enforcement agencies are increasingly using sophisticated cameras, called “automated license plate readers” or ALPR, to scan and record the license plates of millions of cars across the country. These cameras, mounted on top of patrol cars and on city streets, can scan up to 1,800 license plate per minute, day or night, allowing one squad car to record more than 14,000 plates during the course of a single shift.

Photographing a single license plate one time on a public city street may not seem problematic, but when that data is put into a database, combined with other scans of that same plate on other city streets, and stored forever, it can become very revealing. Information about your location over time can show not only where you live and work, but your political and religious beliefs, your social and sexual habits, your visits to the doctor, and your associations with others. And, according to recent research reported in Nature, it’s possible to identify 95% of individuals with as few as four randomly selected geospatial datapoints (location + time), making location data the ultimate biometric identifier.

To better gauge the real threat to privacy posed by ALPR, EFF and the ACLU of Southern California asked LAPD and LASD for information on their systems, including their policies on retaining and sharing information and all the license plate data each department collected over the course of a single week in 2012. After both agencies refused to release most of the records we asked for, we sued. We hope to get access to this data, both to show just how much data the agencies are collecting and how revealing it can be.

ALPRs are often touted as an easy way to find stolen cars — the system checks a scanned plate against a database of stolen or wanted cars and can instantly identify a hit, allowing officers to set up a sting to recover the car and catch the thief.  But even when there’s no match in the database and no reason to think a car is stolen or involved in a crime, police keep the data. According to the LA Weekly, LAPD and LASD together already have collected more than 160 million “data points” (license plates plus time, date, and exact location) in the greater LA area—that’s more than 20 hits for each of the more than 7 million vehicles registered in L.A. County. That’s a ton of data, but it’s not all  — law enforcement officers also have access to private databases containing hundreds of millions of plates and their coordinates collected by “repo” men.

Law enforcement agencies claim that ALPR systems are no different from an officer recording license plate, time and location information by hand. They also argue the data doesn’t warrant any privacy protections because we drive our cars around in public. However, as five justices of the Supreme Court recognized last year in US v. Jones, a case involving GPS tracking, the ease of data collection and the low cost of data storage make technological surveillance solutions such as GPS or ALPR very different from techniques used in the past.

Police are open about their desire to record the movements of every car in case it might one day prove valuable.  In 2008, LAPD Police Chief Charlie Beck (then the agency’s chief of detectives) told GovTech Magazine that ALPRs have “unlimited potential” as an investigative tool.  “It’s always going to be great for the black-and-white to be driving down the street and find stolen cars rolling around . . . . But the real value comes from the long-term investigative uses of being able to track vehicles—where they’ve been and what they’ve been doing—and tie that to crimes that have occurred or that will occur.”  But amassing data on the movements of law-abiding residents poses a real threat to privacy, while the benefit to public safety is speculative, at best.

In light of privacy concerns, states including Maine, New Jersey, and Virginia have limited the use of ALPRs, and New Hampshire has banned them outright.  Even the International Association of Chiefs of Police has issued a report recognizing that “recording driving habits” could raise First Amendment concerns because cameras could record “vehicles parked at addiction-counseling meetings, doctors’ offices, health clinics, or even staging areas for political protests.”

But even if ALPRs are permitted, there are still common-sense limits that can allow the public safety benefits of ALPRs while preventing the wholesale tracking of every resident’s movements.  Police can and should treat location information from ALPRs like other sensitive information — they should retain it no longer than necessary to determine if it might be relevant to a crime, and should get a warrant to keep it any longer.  They should limit who can access it and who they can share it with.  And they should put oversight in place to ensure these limits are followed.

Unfortunately, efforts to impose reasonable limits on ALPR tracking in California have failed so far. Last year, legislation that would have limited private and law enforcement retention of ALPR data to 60 days—a limit currently in effect for the California Highway Patrol — and restricted sharing between law enforcement and private companies failed after vigorous opposition from law enforcement. In California, law enforcement agencies remain free to set their own policies on the use and retention of ALPR data, or to have no policy at all.

Some have asked why we would seek public disclosure of the actual license plate data collected by the police—location-based data that we think is private.  But we asked specifically for a narrow slice of data — just a week’s worth — to demonstrate how invasive the technology is.  Having the data will allow us to see how frequently some plates have been scanned; where and when, specifically, the cops are scanning plates; and just how many plates can be collected in a large metropolitan area over the course of a single week. Actual data will reveal whether ALPRs are deployed primarily in particular areas of Los Angeles and whether some communities might therefore be much more heavily tracked than others. If this data is too private to give a week’s worth to the public to help inform us how the technology is being used, then isn’t it too private to let the police amass years’ worth of data without a warrant?

After the Boston Marathon bombings, many have argued that the government should take advantage of surveillance technology to collect more data rather than less. But we should not so readily give up the very freedoms that terrorists seek to destroy. We should recognize just how revealing ALPR data is and not be afraid to push our police and legislators for sensible limits to protect our basic right to privacy.

Documents

EFF and ACLU-SC’s legal Complaint

LA Sheriff’s Department ALPR Powerpoint Presentation

LA Sheriff’s Department – Automated License Plate Reader System Information

LAPD – Automated License Plate Reader User Guide

LA Sheriff’s Department – Field Operations Directive

IRS Says It Will Respect 4th Amendment With Regard to Email, But Questions Remain

By Nathan Freed Wessler | ACLU | April 16, 2013

With tax day behind us, taxpayers may soon have something else to celebrate from the IRS. In testimony before the Senate Finance Committee today, IRS Acting Commissioner Steven Miller was questioned aggressively about documents released by the ACLU last week that indicate that the IRS does not think it needs a warrant to read all emails and other electronic communications during criminal investigations. Under pressure from senators, Miller agreed to update IRS policy documents within 30 days to state that a warrant is required for access to all emails, regardless of their age.

Two senators from opposite sides of the aisle, Senator Grassley (R-IA) and Senator Wyden (D-OR), pressed Miller about whether the IRS has sought or obtained emails without a warrant since a federal appeals court ruled in 2010 that a warrant is required for all emails. (You can watch the hearing here. Sen. Grassley’s questions start at 1:25:00 and Sen. Wyden’s questions start at 1:31:10.) They asked why the IRS seems to be ignoring that 2010 decision—United States v. Warshak—in most of the country, and advising its criminal investigative agents that emails stored on a server for more than 180 days can be obtained without a warrant. Surprisingly, Miller answered that the IRS follows Warshak across the country. That’s not what internal IRS documents and its public policy manual show, but if true it is welcome news. Importantly, Miller committed to clarify written IRS policy within 30 days to state that a warrant is always required.

Miller’s testimony leaves several important questions unanswered, however:

1. Although Miller stated that the IRS Criminal Investigation unit obtains warrants for all emails, he did not discuss other forms of electronic communication such as text messages, instant messages, and direct messages on social media. Under the Fourth Amendment, a warrant should be required for those private communications as well.

2. Miller stated that, to his knowledge, the IRS has not obtained electronic communications without a warrant in the past. But an internal IRS Chief Counsel Advice memorandum from 2011 reveals that, months after Warshak, IRS investigative agents requested emails from an internet service provider without a warrant at least once. The IRS should explain when it started following Warshak nationally, and whether it has sought or obtained emails without a warrant in the past.

We applaud Senators Grassley and Wyden for quickly taking up this important issue and getting an answer from the IRS, less than a week after the ACLU released the IRS documents. But while the IRS’s apparent change of policy is a step in the right direction, there is more for Congress to do. The current IRS policy manual relies on the outdated Electronic Communications Privacy Act (ECPA), which only requires a warrant for some emails and other electronic communications. In order to uniformly protect the privacy of Americans’ private communications, lawmakers must update ECPA to require a warrant for the contents of all electronic communications, regardless of age or other factors. Strong reform legislation has been introduced by a bipartisan group of sponsors, and is starting to make its way through the legislative process. Follow this link to urge Congress to modernize our electronic privacy law and close the loophole that’s letting the government access email and other electronic communications without a warrant.

Related article

• New Documents Suggest IRS Reads Emails Without a Warrant (alethonews.wordpress.com)

Mom Says DC Cop Assaulted Little Kid

By IULIA FILIP | Courthouse News | April 15, 2013

WASHINGTON – A police officer slammed a 10-year-old student’s head on a table, concussing him, while talking to students about “behaving in class,” the boy’s mother claims in court.

Chante Price sued Metropolitan Police Officer David Bailey Jr. and the District of Columbia, in Federal Court.

She claims Bailey assaulted her son while the boy was discussing a book with a classmate, at Wilkinson Elementary School in Southeast Washington.

Moten Elementary students were temporarily assigned to Wilkinson because of renovations, Price says in the complaint. She claims Bailey’s assault gave her 80-lb., 4-foot 10-inch son headaches for two weeks and made him afraid to go to school.

“On April 19, 2012, T.P. was in music class,” the complaint states. “T.P.’s teacher sent him to the cafeteria because he wasn’t participating adequately in the class. In the cafeteria, he sat at a lunch table with a few other classmates who were also being disciplined. Officer Bailey was present in the cafeteria. There were no other adults in the immediate vicinity.

“On information and belief, Officer Bailey regularly stopped in Moten Elementary School at Wilkinson as part of his routine patrol.

“Officer Bailey lectured the children about behaving in class. T.P. quietly discussed the book he was reading with a classmate.

“Officer Bailey approached T.P. and said, ‘Stop playing with me.’ T.P. responded that he was ‘not playing.’ Officer Bailey grabbed T.P. by the back of his head and slammed T.P.’s head forward into the table. Officer Bailey then grabbed T.P. by the shirt and forcefully lifted him off his chair. Officer Bailey threatened, ‘Play with me again, I’ll take you to 7D [the Seventh District police station].’ Officer Bailey dropped T.P. back onto his chair. (Brackets in complaint).

“T.P.’s teacher entered the cafeteria shortly after the incident, and T.P. reported the incident to her. The teacher responded that she could not do anything because Officer Bailey was a police officer.”

In addition to the concussion and headaches, the assault injured her son’s chest, Price says in the complaint.

She claims says her son now is afraid to go to school, where he “feels insecure in his classroom, even with a teacher present.”

Price says she filed a complaint against Bailey with the District of Columbia Office of Police Complaints, which is investigating, but the U.S. Attorney’s Office declined to prosecute Bailey.

D.C. Police Chief Cathy L. Lanier said in a statement that “police officers should be afforded due process just like anyone else, before judgment is passed. It should also be noted that criminal charges were declined in this matter.”

Price seeks compensatory and punitive damages for constitutional violations, assault and battery.

She is represented by Arthur Spitzer with the American Civil Liberties Union.

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New Documents Suggest IRS Reads Emails Without a Warrant

By Nathan Freed Wessler | ACLU | April 10, 2013

Everyone knows the IRS is our nation’s tax collector, but it is also a law enforcement organization tasked with investigating criminal violations of the tax laws. New documents released to the ACLU under the Freedom of Information Act reveal that the IRS Criminal Tax Division has long taken the position that the IRS can read your emails without a warrant—a practice that one appeals court has said violates the Fourth Amendment (and we think most Americans would agree).

Last year, the ACLU sent a FOIA request to the IRS seeking records regarding whether it gets a warrant before reading people’s email, text messages and other private electronic communications. The IRS has now responded by sending us 247 pages of records describing the policies and practices of its criminal investigative arm when seeking the contents of emails and other electronic communications.

So does the IRS always get a warrant? Unfortunately, while the documents we have obtained do not answer this question point blank, they suggest otherwise. This question is too important for the IRS not to be completely forthright with the American public. The IRS should tell the public whether it always gets a warrant to access email and other private communications in the course of criminal investigations. And if the agency does not get a warrant, it should change its policy to always require one.

The IRS and Email: Reading Between the Lines

The federal law that governs law enforcement access to emails, the Electronic Communications Privacy Act (ECPA), is hopelessly outdated. It draws a distinction between email that is stored on an email provider’s server for 180 days or less, and email that is older or has been opened. The former requires a warrant; the latter does not. Luckily, the Fourth Amendment still protects against unreasonable searches by the government. Accordingly, in 2010 the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages.

However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.

The documents the ACLU obtained make clear that, before Warshak, it was the policy of the IRS to read people’s email without getting a warrant. Not only that, but the IRS believed that the Fourth Amendment did not apply to email at all. A 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel baldly asserts that “the Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server, because internet users do not have a reasonable expectation of privacy in such communications.” Again in 2010, a presentation by the IRS Office of Chief Counsel asserts that the “4^th Amendment Does Not Protect Emails Stored on Server” and there is “No Privacy Expectation” in those emails.

Other older documents corroborate that the IRS did not get warrants across the board. For example, the 2009 edition of the Internal Revenue Manual (the official compilation of IRS policies and procedures) explains that “the government may obtain the contents of electronic communication that has been in storage for more than 180 days” without a warrant.

Then came Warshak, decided on December 14, 2010. The key question our FOIA request seeks to answer is whether the IRS’s policy changed after Warshak, which should have put the agency on notice that the Fourth Amendment does in fact protect the contents of emails. The first indication of the IRS’s position, from an email exchange in mid-January 2011, does not bode well. In an email titled “US v. Warshak,” an employee of the IRS Criminal Investigation unit asks two lawyers in the IRS Criminal Tax Division whether Warshak will have any effect on the IRS’s work. A Special Counsel in the Criminal Tax Division replies: “I have not heard anything related to this opinion. We have always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.” But that’s just the ECPA standard. The real question is whether the IRS is obtaining warrants for emails more than 180 days old. Shortly after Warshak, apparently it still was not.

The IRS had an opportunity to officially reconsider its position when it issued edits to the Internal Revenue Manual in March 2011. But its policy stayed the same: the Manual explained that under ECPA, “Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of a warrant. Again, no suggestion that the Fourth Amendment might require more.

The first indication that the IRS was considering the effect of Warshak came in an October 2011 IRS Chief Counsel Advice memorandum available on the IRS website but not provided in response to our FOIA request. An IRS employee sought guidance about whether it is proper to use an administrative summons, instead of a warrant, to obtain emails that are more than 180 days old. (The emails in question were located on an internet service provider’s (ISP) server somewhere in the territory covered by the Ninth Circuit Court of Appeals). The memo summarized the holding of Warshak and advised that “as a practical matter it would not be sensible” to seek older emails without a warrant. This is good advice, but the memo’s reasoning leaves much to be desired. The memo explained that Warshak applies only in the Sixth Circuit but that, because the ISP had informed the IRS that it did not intend to voluntarily comply with an administrative summons for emails, there was not “any reasonable possibility that the Service will be able to obtain the contents of this customer’s emails . . . without protracted litigation, if at all.” Any investigative leads contained in the emails would therefore be “stale” by the time the litigation could be concluded, making attempted warrantless access not worthwhile.

The memo misses another chance to declare that agents should obtain a warrant for emails because the Fourth Amendment requires it. Instead, the memo’s advice (which may not be used as precedent and is not binding in other IRS criminal investigations) is limited to situations in the Ninth Circuit where an ISP intends to challenge warrantless requests for emails. The IRS shouldn’t obey the Fourth Amendment only when it faces the inconvenience of protracted litigation; it should recognize that the Fourth Amendment requires warrants for the contents of emails at all times.

Finally, to the present: has the IRS’s position changed this tax season? Apparently not. The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days. Apparently the agency believes nothing of consequence has changed since ECPA was enacted in 1986, or the now-outdated Surveillance Handbook was published in 1994.

The IRS Owes the American Public an Explanation—and a Warrant Requirement

Let’s hope you never end up on the wrong end of an IRS criminal tax investigation. But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails. Until now, that hasn’t been the case. The IRS should let the American public know whether it obtains warrants across the board when accessing people’s email. And even more important, the IRS should formally amend its policies to require its agents to obtain warrants when seeking the contents of emails, without regard to their age.

(We also sent FOIA requests to the FBI and other components of the Department of Justice—we will be receiving records from those offices in the coming weeks).

Related articles

• Like rest of the feds, the IRS can get your e-mails with no problem (arstechnica.com)
• When a Secretive Stingray Cell Phone Tracking “Warrant” Isn’t a Warrant (alethonews.wordpress.com)

The Totalitarianism of Universal Background Checks

By Anthony Gregory | The Beacon | April 4, 2013

Finally, some sanity, and from a somewhat unexpected source. The ACLU is concerned about the civil liberties implications of the new Harry Reid Senate bill to establish so-called “universal background checks” for firearms purchases. The organization has tended toward silence on gun rights, but at least now it recognizes aspects of the problem with this terrible proposal.

Ever since Sandy Hook, the Obama administration and its progressive choir have demanded a new Assault Weapons Ban (AWB). Now it looks like that plan is toast. California Senator Dianne Feinstein blames gun owners and the NRA, and in a sense we should have expected all along that this proposal would get nowhere. Such a ban would mostly target “semi-automatic” rifles—which, despite all the hysterics, simply refers to any standard rifle that fires one round each time the trigger is pulled—that happen to have esthetic elements like the pistol grip that do not in fact add to the weapons’ lethality. This is the nonsensical standard used to ban some classes of weapons instrumentally identical to the ones banned in 1994.

The first AWB devastated the Democrats politically, and probably contributed as much as anything to the Republicans’ crushing victory in the 1994 congressional elections after forty years in the legislative minority. It also hurt Al Gore in his run against George W. Bush in 2000. The ban generally prohibited ordinary but scary looking rifles, which are used in about two percent of violent crimes committed with firearms. The law did not apply to, say, most of the weapons used at the Columbine school massacre in 1999. But it did interfere with Americans’ basic right to own what we can fairly call the modern version of the musket. Millions of Americans own such weapons like the AR-15, the most popular rifle and one targeted by the Democrats’ proposal for a new, robust AWB. These weapons are used for hunting, sport, and self-defense. They are not, despite all the misinformation to the contrary, repeating, military-style rifles.

In any event, the unpopularity of an AWB always doomed this proposal, especially under a Democratic president as distrusted on the right as Obama. The Republicans have the House and too many Democrats in the Senate are loyal to their gun-owning constituents.

So this whole time, the real threat to our firearms freedom has been these less debated, peripheral proposals—proposals that strip people the state deems “mentally ill” of the right to bear arms, proposals that violate the civil rights of released convicts, proposals to increase penalties for violations of current law, and, as disturbing as anything, proposals to institute “universal background checks.”

The gun restrictionists have pointed to polls showing more than 90% approval of such background checks, including among a vast majority of conservatives, Republicans, and gunowners. Liberty is always attacked on the margins, and most Americans don’t go to gun shows and so don’t see the big deal. Surely the state should know who is armed. Surely we don’t want people buying and selling guns freely.

But, in fact, universal background checks are arguably even more tyrannical than banning whole classes of weapons. Why should the government know who is armed? Why shouldn’t people be allowed to freely buy and sell private property without government permission? Half of Americans see background checks as the first step toward full registration then confiscation. Many fear that the new law would create records of these deals that would not immediately be destroyed, which could form databases or enable government in further nefarious purposes. The progressives have tended to regard any of these worries as paranoia, but it looks like the ACLU is now among the paranoid.

There is no need to discuss pure hypotheticals. There have been gun confiscations in the United States. After the Civil War, officials conducted confiscations to disarm American Indians and blacks became the target in the Jim Crow South. Confiscations followed Hurricane Katrina, along with the rest of the government’s martial law response. Since many gun controllers openly say they want a total ban of certain kinds of firearms, or all firearms, why wouldn’t gun owners fear that registration will lead to confiscation? The U.S. president promised that he would not take away Americans’ rifles, then went ahead and proceeded to propose to do just that. Add all of this to the database growth, the warrantless wiretapping, the domestic surveillance drones, the frightening executive power grabs concerning detention, interrogation, and executions, and the overall militarization of policing that has unfolded thanks to the wars on drugs and terror, and it seems fairly appropriate that in the age of Bush and Obama, civil libertarians of all stripes would resist the drive toward universal background checks or anything with such an Orwellian name as that.

This whole matter should also remind us of the interlocking nature of personal liberties. Abolishing the Second Amendment necessarily means abolishing the Fourth as well. Just ask the millions of black and Hispanic young men stopped and frisked in New York City in the name of gun control and with the purpose, as the police commissioner reportedly put it, to “instill fear” of police in these demographic groups. It is the violations of privacy that concern the ACLU, but anyone jealous of her security in her papers, persons, and effects should recoil at the thought of the state collecting these records.

Of course, it should go without saying that when it comes to criminal enterprise, universal background checks are unenforceable. In a country with as many guns as there are people, criminals and the state will always get the weapons they want. Firearms are easier to manufacture than many illegal drugs, and we see how well the state has stamped those out. The rapid developments in 3-D printing makes it even crazier that we’d still be talking about gun control as anything but a threat to the liberty of the law abiding.

The AWB looks defeated for now, but perhaps that was always known to be inevitable by our cynical civilian disarmament fetishists in Washington, DC. Perhaps the real goal was to get what could be gotten now—the beginnings of a national database of every lawful gun owner. The so-called gun show loophole—the freedom of owners to sell firearms to one another with few encumbrances—is a pocket of liberty. Closing this loophole would be a tragedy. We can only hope that civil libertarians across the spectrum ban together to challenge this march to erode these core freedoms.

Related articles

• Gun poll: Most say background checks may bring confiscation (thehill.com)
• 4 More Ways Obama’s Gun Control Speech Sows Mistrust (reason.com)

When a Secretive Stingray Cell Phone Tracking “Warrant” Isn’t a Warrant

By Hanni Fakhoury | EFF | March 28, 2013

An Arizona federal court this afternoon will be the battleground over the government’s use of a “Stingray” surveillance device in a closely watched criminal case, United States v. Rigmaiden. And in an important development, new documents revealed after an ACLU of Northern California Freedom of Information Act (FOIA) request should leave the government with some explaining to do.

“Stingray” is the brand name of an International Mobile Subscriber Identity locator, or “IMSI catcher.” A Stingray acts as a fake cell-phone tower, small enough to fit in a van, allowing the government to route all network traffic to the fake tower. We’ve warned that Stingrays are dangerous because they have the capability to obtain the contents of electronic and wire communications while necessarily sucking down data on scores of innocent people along the way.

The Fourth Amendment requires searches be “reasonable,” generally meaning they must be accompanied by a warrant. To get a warrant, the government must show there is probable cause to believe the place they want to search will have evidence of a crime. And it means the judge must ensure the warrant is “particular,” or limited to only allow searches into areas where the evidence is most likely to be found. The only way a judge can make these tough decisions is with the government being forthright about what it’s doing.

But when it comes to Stingrays the government has been extremely secretive about its use, withholding documents in FOIA requests, failing to explain (or even understand) the technology to a Texas federal judge and in Rigmaiden, misleading the court about the fact it’s even using one at all.

Daniel David Rigmaiden is charged with a variety of tax and wire fraud crimes. Hoping to pinpoint Rigmaiden’s precise location within an apartment complex, federal agents applied for an order requesting the court to order Verizon to help the agents pinpoint the physical location of a wireless broadband access card and cell phone they believed Rigmaiden was using. The order is clearly directed towards Verizon:

The Court therefore ORDERS, pursuant to Federal Rule of Criminal Procedure 41(b); Title 18, United States Code, Sections 2703 and 3117; and Title 28, United States Code, Section 1651, that Verizon Wireless, within ten (10) days of the signing of this Order and for a period not to exceed 30 days, unless extended by the Court, shall provide to agents of the FBI data and information obtained from the monitoring of transmissions related to the location of the Target Broadband Access Card/Cellular Telephone…

Ultimately, it turns out the government did not just get Verizon to give it the data. It also used a Stingray device to find Rigmaiden, sucking up loads of other data from other electronic devices in the complex as well, which it deleted.

When Rigmaiden filed a motion to suppress the Stingray evidence as a warrantless search in violation of the Fourth Amendment, the government responded that this order was a search warrant that authorized the government to use the Stingray. Together with the ACLU of Northern California and the ACLU, we filed an amicus brief in support of Rigmaiden, noting that this “order” wasn’t a search warrant because it was directed towards Verizon, made no mention of an IMSI catcher or Stingray and didn’t authorize the government—rather than Verizon—to do anything. Plus to the extent it captured loads of information from other people not suspected of criminal activity it was a “general warrant,” the precise evil the Fourth Amendment was designed to prevent.

The FOIA documents bolster our argument that this isn’t a warrant. The documents are a series of internal emails from DOJ attorneys in the United States Attorney’s Office for the Northern District of California, the district where the order in Rigmaiden’s case was issued. The emails make clear that U.S. Attorneys in the Northern California were using Stingrays but not informing magistrates of what exactly they were doing. And once the judges got wind of what was actually going on, they were none too pleased:

As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…

These emails, combined with the text of the disputed order itself, suggest agents obtained authorization to use a pen register without indicating they also planned to use a Stingray. Either at the time of the application or after the fact, the government attempted to transform that order into a warrant that authorized the use of a Stingray.

Judicial superivison of searches is most needed when the government uses new technologies to embark into new and unknown privacy intrusions. But when the government hides what it’s really doing, it removes this important check on government power. We hope the court sees its been duped, and makes clear to the government that honesty and a warrant are requirements to using a Stingray.

The Constitution Applies When the Government Bans Americans From the Skies

By Nusrat Choudhury & Hina Shamsi | ACLU | March 28, 2013

The government does not have the unchecked authority to place individuals on a secret blacklist without providing them any meaningful opportunity to object, the ACLU argued in a brief filed last Friday with the federal district court in Oregon.

We made the filing in Latif v. Holder, our lawsuit asserting that the government violated the Fifth Amendment due process rights of 13 Americans, including four military veterans, by placing them on the No Fly List and refusing to give them any after-the-fact explanation or a hearing at which they can clear their names.

Our brief highlighted the utter irrationality of the government’s No Fly List procedures. The plaintiffs in Latif all flew for years without any problems. But more than two years ago, they were suddenly branded as suspected terrorists based on secret evidence, publicly denied boarding on flights, and told by U.S. and airline officials that they were banned from flying perhaps forever. Each of them asked the government to remove them from the No Fly List through the only “redress” mechanism available—the Department of Homeland Security Traveler Redress Inquiry Program. But the government has refused to provide any explanation or basis for their inclusion in the list. Our clients have been stuck in limbo ever since.

We submitted evidence to the court showing that the No Fly List burdens our clients’ constitutionally protected liberties, with devastating consequences for their personal and professional lives. It deprives them of the ability to fly—an essential means of travel in modern life. It also stigmatizes them as suspected terrorists, although they have never been charged with any crime, let alone convicted of one.

Our brief argued that the Constitution’s core promise of procedural due process requires the government to provide at least some explanation and some hearing where Americans can defend themselves after it deprives them of their liberties. The government’s categorical refusal to provide either is unconstitutional. We explained:

Defendants’ refusal to provide the bare rudiments of due process stems from their embrace of an explicit policy—known as the “Glomar” policy—of refusing to confirm or deny any information concerning a person’s status on the No Fly List. The Glomar policy and Defendants’ inadequate process cannot be reconciled with governing due process doctrine. Courts routinely require notice and some form of hearing for much less severe deprivations of liberty than Plaintiffs have suffered. Thus, the government cannot suspend a student from school for ten days, or recover excess Social Security payments, or terminate state assistance for utility bills without some kind of notice and hearing.

In its own brief to the court defending its “redress” program, the government’s arguments boiled down to two sweeping—and extraordinary—claims. First, according to the government, the Constitution has nothing to say about the adequacy and fairness of the procedures the government provides Americans to challenge their inclusion on the No Fly List because “alternatives” to flying are available. We countered that argument in a separate brief (also filed on Friday) showing that the government relied on the wrong law, and by providing evidence confirming what is obvious: the No Fly List so severely restricts Americans’ ability to travel that it triggers due process rights. Not only does the list ban Americans from the skies, it even bars them from travel on boats. As a result, two of our clients have been effectively banned from traveling from the United States to be with their families in Ireland and Yemen.

The government’s second sweeping claim is that even confirming or denying No Fly List-status (much less actually providing notice of the reasons and basis for inclusion in the list) will cause a parade of national security horribles, including the disclosure of sensitive or classified information. Our brief, however, showed that this argument is based on a fiction: all of our clients already know they are on the No Fly list; they were each prevented from flying and explicitly told that they are on the list. We also pointed out that the mere possibility that sensitive national security information might be involved is no reason to categorically foreclose the hearings that due process requires.

Americans have a right to know what kind of “evidence” or innuendo is sufficient to land them on the No Fly List, and to have a hearing where they can defend themselves. Without this bare minimum, there is no meaningful check to correct the government’s mistakes or ensure that it uses the blacklisting power it claims fairly and appropriately. We are asking the court, therefore, to vindicate a basic yet fundamentally important proposition: a government black list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.

ACLU and CCR Comment on New York Times Article on Killing of Anwar Al-Aulaqi

ACLU | March 10, 2013

NEW YORK – The American Civil Liberties Union and the Center for Constitutional Rights issued the following statement in response to The New York Times article today detailing the U.S. government’s killings of three U.S. citizens:

“In anonymous assertions to The New York Times, current and former Obama administration officials seek to justify the killings of three U.S. citizens even as the administration fights hard to prevent any transparency or accountability for those killings in court. This is the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program, including its use against citizens.

“Government officials have made serious allegations against Anwar al-Aulaqi, but allegations are not evidence, and the whole point of the Constitution’s due process clause is that a court must distinguish between the two. If the government has evidence that Al-Aulaqi posed an imminent threat at the time it killed him, it should present that evidence to a court. Officials now also anonymously assert that Samir Khan’s killing was unintended and that the killing of 16-year-old Abdulrahman al-Aulaqi was a mistake, even though in court filings the Obama administration refuses to acknowledge any role in those killings.  In court filings made just last week, the government in essence argued, wrongly, that it has the authority to kill these three Americans without ever having to justify its actions under the Constitution in any courtroom.”

The ACLU and CCR are challenging the legality of the drone strike that killed Al-Aulaqi and Khan, as well as the separate strike that killed Al-Aulaqi’s 16-year-old son, Abdulrahman, in Yemen in September and October 2011.

The ACLU is also seeking disclosure of the legal memoranda written by the Department of Justice Office of Legal Counsel that provided justifications for the targeted killing of Al-Aulaqi, as well as records describing the factual basis for the killings of all three Americans, in a separate Freedom of Information Act lawsuit.

More information is at: www.aclu.org/targetedkilling and http://ccrjustice.org/targetedkillings

Related article

• Justice Department White Paper Details Rationale for Targeted Killing of Americans (alethonews.wordpress.com)

Police militarization comes under nationwide investigation

RT | March 07, 2013

The American Civil Liberties Union has launched a campaign to investigate the growing trend of placing militarized police units in cities and towns across the country.

Doors busted down and windows smashed in. It’s becoming more of a regular occurrence each day in America as heavily-armed SWAT teams are being sent to the homes of suspects, often nonviolent ones, with enough firepower to take down a small army. In November, a botched raid ended with an 18-year-old girl in the hospital. Other incidents haven’t been exactly isolated either: guns get drawn on both grannies and grandkids alike, and equipping law enforcement officers with the means to make these nightmares become reality is easier by the day.

Police units across the US are becoming more like militaries than the serve-and-protect do-gooders that every young schoolboy once aspired to be. Not only are officers being trained to act with intensity as the number of these home invasions increase, but more and more police departments are being awarded arsenals of heavy-duty weaponry that are then being turned not onto members of al-Qaeda, but innocent children and unsuspecting house guests.

ACLU affiliates across the United States filed Freedom of Information Act requests with law enforcement agencies on Wednesday in hope of obtaining as much material as possible relevant to the ongoing expansion of small town police squads to heavily armed squadrons of soldiers.

“Federal funding in the billions of dollars has allowed state and local police departments to gain access to weapons and tactics created for overseas combat theaters – and yet very little is known about exactly how many police departments have military weapons and training, how militarized the police have become, and how extensively federal money is incentivizing this trend,” reads a statement released by the ACLU. “It’s time to understand the true scope of the militarization of policing in America and the impact it is having in our neighborhoods.”

On Wednesday, the ACLU issued a statement saying branches and affiliates in 23 states around the country filed over 255 public records requests only hours after the investigation was formally launched. The agencies hope that, by analyzing documents, can learn more about the extent that “federal funding and support has fueled the militarization of state and local police departments.”

“Equipping state and local law enforcement with military weapons and vehicles, military tactical training, and actual military assistance to conduct traditional law enforcement erodes civil liberties and encourages increasingly aggressive policing, particularly in poor neighborhoods and communities of color,” explains Kara Dansky, senior counsel for the ACLU’s Center for Justice. “We’ve seen examples of this in several localities, but we don’t know the dimensions of the problem.”

The ACLU says they want to know as much as possible about the type of training given to local SWAT officers, as well as information about the types of technology used by agencies around the country. Through the FOIA requests, the ACLU hopes to learn what types of weapons have been used, who they’ve been used on and what the end result has been. They also want documentation pertaining to the growing use of GPS technology, surveillance drones and any agreements between local police departments and the National Guard. The ACLU is also interested in any relationships between small law enforcement units and the US Departs of Defense and Homeland Security.

“The American people deserve to know how much our local police are using military weapons and tactics for everyday policing,” adds Allie Bohm, an advocacy and policy strategist for ACLU. “The militarization of local police is a threat to Americans’ right to live without fear of military-style intervention in their daily lives, and we need to make sure these resources and tactics are deployed only with rigorous oversight and strong legal protections.”

In 2011, the Department of Defense gave half-a-billion dollars’ worth of military machinery that would have been left otherwise unused to law enforcement agencies coast-to-coast. Among the items offered up to officers at no cost at all that year were grenade launchers, helicopters, military robots, M-16 assault rifles and armored vehicles. Before 2012 came to a close, figures for that year were expected to end with more than a 400 percent increase.

Peter Kraska, a criminologist at Eastern Kentucky University, tells journalist Radley Balko that while the militarization of police squads is indeed accelerating, it isn’t likely the ACLU will get all the answers they want.

“My experience is that they’ll have a very difficult time getting comprehensive, forthright information,” Kraska says. “If the goal here is to impose some transparency, you have to understand, that’s not what the SWAT industry wants.”

Related article

• The Militarization of Policing in America

Homeland Security Approves Seizure of Cell Phones and Laptops within 100 Miles of Border; Report Remains Secret

By Matt Bewig | AllGov | February 11, 2013

  (graphic: ACLU)

Americans have no Fourth Amendment rights against unreasonable searches and seizures if they happen to be within 100 miles of the border, according to the “Executive Summary” of a still-secret report by the Department of Homeland Security (DHS). As the ACLU-created map above shows, nearly 2/3 of Americans (197 million people)—including the entire populations of Florida, Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Delaware, Maryland, Washington, DC, and Michigan—live in this “Constitution free” zone, as do the residents of the nation’s five most populous cities: New York, Los Angeles, Chicago, Houston and Philadelphia.

The secret report is DHS’s response (two years late) to critics of its policy, in place since at least 2008, of allowing border control agents, without a warrant or even a suspicion of wrongdoing, to search any travelers’ electronic devices (laptops, cell phones, tablets, cameras, etc.) and seize data they find. According to a Freedom of Information Act request (FOIA) filed three years ago by the ACLU, DHS subjected more than 6,500 travelers—nearly half of them U.S. citizens—to searches under this policy between October 2008 and June 2010.

The Executive Summary of the secret report, which DHS is allowing the public to see, sets forth its conclusions without even summarizing the reasoning underlying them. Thus it asserts that “imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” but is silent on how DHS defines “civil rights/civil liberties benefits” or how it balances these against its institutional needs.

The ACLU, which has already filed an FOIA request demanding the full report, released a statement arguing that “allowing government agents to search through all of a traveler’s data without reasonable suspicion is completely incompatible with our fundamental rights: our Fourth Amendment right to privacy—and more specifically the right to be free from unreasonable searches—is implicated when the government can rummage through our computers and cell phones for no reason other than that we happen to have traveled abroad. Suspicionless searches also open the door to profiling based on perceived or actual race, ethnicity, or religion. And our First Amendment rights to free speech and free association are inhibited when agents at the border can target us for searches based on our exercise of those rights.”

To Learn More:

DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border (by David Kravets, Wired)