By Fiona de Londras, Durham University | November 6, 2013
Next month the advocate general of the Court of Justice of the EU (CJEU), Yves Bot, will publish an opinion on the extent to which the Data Retention Directive, one of the most controversial security measures introduced by the EU in the past decade, is compatible with human rights law. Although not a binding judgement (this will come later), the CJEU’s opinion is a significant intervention in the ongoing debate over how to balance human rights with states’ perceived surveillance needs.
The security-related retention of communications by telecoms firms was on the European agenda well before 9/11, but privacy concerns had led to a limited approach. Telecoms companies in the EU were obliged to delete communications data as soon as all business needs had been met; the data could not be retained for security or criminal investigation purposes. Some states had attempted to adjust this and introduce a retention system in 2000, but this failed – again, largely because of privacy concerns. All this changed, however, after 9/11.
As early as May 2002, a “data retention amendment” had been made to existing EU privacy laws to allow for security-related data retention, and drafts of a provision that would require retention began to circulate. Those proposals attracted so much rights-based criticism that they were apparently abandoned; however, they quickly reappeared in the wake of the London and Madrid bombings, and in 2006, the Data Retention Directive was adopted.
It obliges all member states to introduce national data retention regimes, even where -— as in the UK —- there had already been significant resistance to such regimes when they were previously proposed at national level. The directive requires telecommunications providers to retain data on the source, destination, time, date, duration and type of all communications by fixed and mobile telephone, fax and internet, and on the location and type of equipment used.
The data is to be retained for between six month and two years, with national law deciding on the duration, and can be accessed by state agencies investigating “serious crime” —- a term that has different definitions across the member states.
The volume and extent of information retained under the directive is stunning; in effect, it has introduced a system of blanket surveillance across the entire EU. Although access to the information is regulated by law, state agencies can nonetheless access an enormous amount of information about our communications patterns and activities. This naturally raises serious human rights concerns, especially about privacy.
Security services insist that data retention is an indispensable tool for investigating serious crimes, such as terrorism and the production and distribution of child pornography. Yet different states make use of the Directive to wildly varying extents: in 2012, for example, Cyprus made 22 requests for access to data, while the UK made 725,467.
The question for the advocate general, the CJEU and the EU more broadly is whether or not the approach taken by the directive privileges perceived security needs over human rights. Data retention unquestionably constitutes a prima facie infringement on privacy; the real issue is whether this infringement is justified because it is necessary, effective, and limited. This question is at the core of all debates about “balance” in the security context: how far are we prepared to allow state power into our individual, family, social and democratic lives in order to “secure” us?
Answering this question requires us to decide on what we think “effectiveness” means in the context of security. If the directive helps to resolve a handful of serious crimes per year, or to prevent one terrorist attack, is it effective? Could a more limited approach -— such as requiring telecoms companies to collect data related to certain investigations but not to retain all data -— achieve the same security objectives while better protecting rights?
These are difficult questions, but they are ones we must resolve if we are to have a balanced security system. The advocate general’s opinion will be an important contribution to the debate, but it will not be the final word. Achieving a balanced approach to security requires critical scrutiny at practical, political, social and legal levels. This is all the more true given that, as the Data Retention Directive illustrates, security measures operate upon and have implications for the rights of all of us, all of the time.
Fiona de Londras is the Project Co-Ordinator of SECILE (Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness), a project that has received funding from the European Union Seventh Framework Programme (FP7/2007-2013) under grant agreement n° 313195.
- Are YOU content for the EU & UK politicos to be party to every detail of your life? (ironiestoo.blogspot.com)
- Corporate interests dominate group working on EU data law (computerworld.co.nz)
- Dutch Telcos Used Customer Metadata, Retained To Fight Terrorism, For Everyday Marketing Purposes (techdirt.com)
- How to choose a VPN that actually protects your privacy – Abine (uwnthesis.wordpress.com)
Ed Snowden has briefly stepped up to the mic to rebut Dianne Feinstein’s claims that the NSA’s bulk phone records collections are “not surveillance.” While he didn’t specifically name Feinstein, it’s pretty clear who his comments are directed towards, what with the senator putting in overtime over the past few weeks defending the agency’s cherished but useless Section 215 collections haystacks that are definitely not collections (according to the Intelligence Dictionary.)
“Today, no telephone in America makes a call without leaving a record with the NSA. Today, no Internet transaction enters or leaves America without passing through the NSA’s hands,” Snowden said in a statement Thursday.
“Our representatives in Congress tell us this is not surveillance. They’re wrong.”
Her op-ed for the USA Today stated the following:
The call-records program is not surveillance.
Why is it not surveillance? Feinstein claimed, in direct contradiction to someone who’s seen most of the inner workings of the agency’s programs, that because it doesn’t sweep up communications or names, it isn’t surveillance. Also, she pointed out that surveillance or not, it’s legal. So there.
Maybe Feinstein considers the term “surveillance” to mean something closer to the old school interpretation — shadowy figures in unmarked vans wearing headphones and peering through binoculars.
Of course, this kind of surveillance contained many elements completely eliminated by the combination of the PATRIOT Act, the FISA Amendments Act, and a very charitable reading of the Third Party Doctrine. You know, the sort of stuff those shadowy men used to utilize: warrants, targeted investigations, reasonable suspicion, a grudging working relationship with the Fourth Amendment…
That’s all gone now. The courts have declared that sweeping up business records on millions of Americans is no more a violation of the Fourth Amendment than gathering metadata on a single person. The NSA has warped the definition of “surveillance” just as surely as they’ve warped the definition of “relevant.” The wholesale, untargeted gathering of millions of “transactions” from internet and phone activity doesn’t seem to resemble what anyone might historically think of as “surveillance,” but it’s surveillance nonetheless.
Sure, the NSA may not look at everything it gathers, but it has the capability to do so and it shows no interest in letting any of its dragnets be taken out of commission. The NSA’s defenders downplay the agency’s many intrusions by first playing the “legal” and “oversight” cards and, when those fail to impress, belittle their critics by trotting out condescending statements like, “The NSA isn’t interested in Grandma’s birthday phone call or the cat videos you email to your friends.”
Well, no shit. We’re hardly interested in that, either. We’re not worried about the NSA looking through tons of inane interactions. We know it doesn’t have the time or inclination to do so. We’re more concerned it’s looking at the stuff it finds interesting and amassing databases full of “suspicious” persons by relying on algorithms and keywords — a fallible process that robs everything of context and turns slightly pointed hay into the needles it so desperately needs to justify its existence.
What makes this even more frightening is that the agency then hands this unfiltered, untargeted, massive collection of data off to other agencies, not only in the US but in other countries, subjecting innocent Americans’ data to new algorithms, keywords and mentalities, increasing the possibility of false positives.
But what we’re mainly concerned about is the fact that an agency that claims its doing this to combat terrorism can’t seem to come up with much evidence that its programs are working. The NSA has deprived us of civil liberties while delivering next to nothing in terms of security. Americans have been sold out to a data-hungry beast, and even if it’s not officially “surveillance,” it’s still completely unacceptable.
The former top lawyer at the FBI deeply implicated in surveillance abuses revealed before and by Edward Snowden’s leaks was confirmed as a federal judge in a top court for terrorism cases this week.
The US Senate voted 73-24 on Monday in approving Valerie Caproni, Federal Bureau of Investigation general counsel from 2003 to 2011, to the Southern District of New York, one of the country’s most important federal courts for terrorism cases.
Caproni has received bipartisan criticism for allowing and defending surveillance abuses both found to be overbroad during her tenure and those not disclosed when she was counsel but later revealed to be inappropriate or illegal. For example, the Snowden leaks showed Caproni mischaracterized the limits of the Patriot Act during her term.
A 2010 report by the Department of Justice revealed the FBI inappropriately used non-judicial subpoenas called “exigent letters” to gather phone numbers of over 5,550 Americans until 2006.
“The FBI broke the law on telephone records privacy and the general counsel’s office, headed by Valerie Caproni, sanctioned it and must face consequences,” said John Conyers in April 2010 as chairman of the House Judiciary Committee.
Conyers called for Caproni’s firing at the time over the use of the non-judicial subpoenas, according to the Guardian.
“It’s not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel,” Conyers said in 2010.
Caproni told House lawmakers in 2008 if phone numbers — acquired from telephone companies by the FBI via the non-judicial subpoenas evidently sanctioned in the Patriot Act — were not related to a “currently open investigation, and there was no emergency at the time we received the records, the records are removed from our files and destroyed.”
Yet revelations found in documents supplied by Snowden outlined how the National Security Agency stores phone records on all Americans for up five years no matter if they are associated with an open investigation or not. In addition, it’s been found that the NSA has the capability to feed the FBI phone records if there is a “reasonable articulable suspicion” they are related to terrorism.
“Caproni knew that the Bush administration could use or was using the Section 215 provision in the Patriot Act to obtain Americans’ phone records on a broad scale, an issue that has recently been documented by the whistleblower material first printed in the Guardian,” Lisa Graves, a former deputy assistant attorney general who dealt with Caproni while working on national security issues for the ACLU, told the Guardian.
In 2007, DOJ’s Inspector General Glenn Fine found the FBI was serially abusing National Security Letters — a demand regarding national security independent of legal subpoenas– to obtain business records, including “unauthorized collection of telephone or internet email transactional records.” While the larger collection of phone records was still not exposed at the time, Caproni called the inappropriate collection a “colossal failure on our part.”
“Government officials that secretly approved of overbroad surveillance programs the public is only seeing now because of leaks, and whose testimony on the issue obscured rather than revealed these abuses, should be held to account for their actions in a public forum,” former FBI agent Mike German told the Guardian.
Caproni’s nomination to the federal bench had some bipartisan opposition, but not enough to block her appointment.
“She is a woman with impeccable credentials,” Sen. Kirsten Gillibrand (D-N.Y.) said on the Senate floor Monday. “This country needs more women like her.”
We’ve discussed a few times how the pervasive surveillance efforts of the NSA and others have tremendous chilling effects on how people communicate and how they act. We’ve discussed how this is a “cost” to the program that not many, especially those who are backing these programs, seem interested in measuring or even thinking about. Of course, implicit in our assumption is that these “costs” are things that are negatives of the program. Others would point out that for those in power, that’s not so much a cost as a benefit. It’s not a bug or an unintended consequence, but a feature. Chilling speech and clamping down on communications? Why that’s a good thing for those in power.
Josh Levy, from Free Press, has a great guest post over at Boing Boing where he discusses how the NSA’s surveillance regime is a huge attack on free speech, and how this is both inevitable, and for some, the intent of the program:
The chilling of free speech isn’t just a consequence of surveillance. It’s also a motive. We adopt the art of self-censorship, closing down blogs, watching what we say on Facebook, forgoing “private” email for fear that any errant word may come back to haunt us in one, five or fifteen 15 years. “The mind’s tendency to still feel observed when alone… can be inhibiting,” writes Janna Malamud Smith. Indeed.
Peggy Noonan, describing a conversation with longtime civil liberties advocate Nat Hentoff, writes that “the inevitable end of surveillance is self-censorship.”
Hentoff stressed that privacy invasions of this magnitude are “attempts to try to change who we are as Americans.” In fact, they are attempts to define who we are as human beings.
Meanwhile, over at the Atlantic, Bruce Schneier has a post discussing the detainment of David Miranda, where he comes to similar conclusions, that these authoritarian police states clearly have no practical benefit, except to enable a powerful government to show off its power to invade your lives:
This leaves one last possible explanation — those in power were angry and impulsively acted on that anger. They’re lashing out: sending a message and demonstrating that they’re not to be messed with — that the normal rules of polite conduct don’t apply to people who screw with them. That’s probably the scariest explanation of all. Both the U.S. and U.K. intelligence apparatuses have enormous money and power, and they have already demonstrated that they are willing to ignore their own laws. Once they start wielding that power unthinkingly, it could get really bad for everyone.
Of course, Schneier sees some upside to this in the long run — which is that such blatantly ridiculous activity seems to only embolden others to push back on this trampling of our rights. Hopefully, that pushback works, because the alternative is horrifying to those who believe in a free and open society.
- Nat Hentoff on the NSA and Privacy (cato.org)
Congressional Oversight? Dianne Feinstein Says She’s ‘Not A High-Tech Techie’ But Knows NSA Can’t Abuse Surveillance
As the NSA and defenders of NSA surveillance are trying to minimize the damage from the latest leak, which revealed the details of the XKeyscore program, they’re bending over backwards to insist that this program is both limited and immune from abuse. We’ve already mentioned that the claims that it can’t be abused are laughable since there’s already a well-documented history of abuse. However, even more bizarre is the following quote from Senate Intelligence Committee boss, Senator Dianne Feinstein (a staunch defender of the surveillance programs):
Feinstein said, “I am not a high-tech techie, but I have been told that is not possible.”
Note that among Feinstein’s jobs is oversight of this program. Yet, what kind of “oversight” is it when she admits that she’s not qualified to understand the technology but “has been told” that such abuses are not possible? That doesn’t seem like oversight. That seems like asking the NSA “can this system be abused?” and the NSA saying “oh, no no no, not at all.” That’s not exactly oversight, now is it?
Earlier this week, the Oakland City Council voted to approve the second phase of a $10.9 million surveillance center that would enable the City to engage in widespread warrantless surveillance of Oakland residents who have engaged in no wrongdoing whatsoever. This is a terrible blow to privacy.
The so-called Domain Awareness Center (DAC) would consolidate a vast network of surveillance data. The project was initially supposed to be about port security. But in a classic illustration of mission creep, the project as proposed would have pulled in over 1,000 cameras and sensors pointed at Oakland residents, including 700 cameras in Oakland schools. While surveilling schoolchildren is not going to secure the Port of Oakland, it would allow for the comprehensive tracking of innocent Oakland residents. The DAC would enable the city to track individuals when they visit the abortion clinic, the Alcoholics Anonymous meeting, or the union hall, or engage in other private activities. Although proponents of the project claimed that it did nothing more than consolidate existing surveillance systems, the mere combination of surveillance data is extremely intrusive. A mosaic depicts far more information than any individual tile.
Shockingly, the City Council was poised to approve the project even though there was no privacy framework in place whatsoever. Although the City’s proposed contract with a vendor to build the DAC took pains to prescribe in minute detail the precise manner in which, for example, metal framing systems are to be installed (studs are to be placed not more than 2 inches from abutting walls), there were no privacy provisions addressing key issues such as data retention and dissemination.
Disappointingly, and in the face of enormous opposition, the City Council voted on Tuesday to approve the DAC. The resolution it ultimately adopted requires the City Council to approve privacy policies and specifies which surveillance systems can be included in the DAC (the cameras in Oakland schools are no longer included). While the resolution contains a few nods to privacy, the City Council still put the cart before the horse. The City Council would never have approved a construction project, only to say that they’d review financial costs after the project is built. But it did just that with privacy costs.
You can follow Linda Lye on Twitter at @linda_lye.
- Oakland accepts federal funds for controversial, vast surveillance setup (arstechnica.com)
Automatic license plate readers are the most widespread location tracking technology you’ve probably never heard of. Mounted on patrol cars or stationary objects like bridges, they snap photos of every passing car, recording their plate numbers, times, and locations. At first the captured plate data was used just to check against lists of cars law enforcement hoped to locate for various reasons (to act on arrest warrants, find stolen cars, etc.). But increasingly, all of this data is being fed into massive databases that contain the location information of many millions of innocent Americans stretching back for months or even years.
This is what we have found after analyzing more than 26,000 pages of documents from police departments in cities and towns across the country, obtained through freedom of information requests by ACLU affiliates in 38 states and Washington, D.C. As it becomes increasingly clear that ours is an era of mass surveillance facilitated by ever cheaper and more powerful computing technology (think about the NSA’s call logging program), it is critical we learn how this technology is being used. License plate readers are just one example of a disturbing phenomenon: the government is increasingly using new technology to collect information about all of us, all the time, and to store it forever – providing a complete record of our lives for it to access at will.
Today, we are releasing all of the documents we have received (accessible through this interactive map and this issue page) and are publishing a report, “You Are Being Tracked,” which explains what these documents say about license plate readers: what they are capable of, how they are being used, and what privacy harms they can cause if protections aren’t put in place. We’re also offering more than a dozen recommendations we think local police departments and state legislatures should follow when they pass laws about this technology.
As is often the case with surveillance technology, there are unobjectionable – even beneficial – uses of license plate readers. We don’t object when they’re used to identify people who are driving stolen cars or are subject to an arrest warrant. But they should not become tools for tracking where each of us has driven.
License plate readers capture vast amounts of data on innocent people
Because of the way the technology works – these devices snap photos of every passing car, not just those registered to people suspected of crimes – virtually all of the data license plate readers gather is about people who are completely innocent. Data that we obtained through our records requests illustrates this point vividly.
Why we should worry
Should the government be logging for months, years, or indefinitely the movements of the other 99 percent of people, who are innocent?
The answer to this question is no. License plate reader information can be very revealing. While one snapshot at one point might not seem sensitive, as blankets of plate readers cover our streets, and as the government stores data for longer and longer, the technology quickly morphs into a powerful tracking tool.
As computer technology and storage capacity get cheaper every year, we need to prepare for a future not just where there are a few license plate reader cameras in every town, but one in which there are multiple cameras on every block.
What can location data reveal about people? Trips to places of worship, political protests, or gun ranges can be powerful indicators of people’s beliefs. Is it really the government’s business how often you go to the drug store or liquor store, what doctors you visit, and the identities of your friends? I’m sure all of us can remember something from our past that could embarrass us. If the government comes to suspect you of something in 2020, should it have access to databases stretching back years that could dig up facts about you that previously went unnoticed?
What’s happening now
Law enforcement data-retention policies today are all over the map. While some police departments store data briefly, others keep it for a long time, or indefinitely.
The government doesn’t have a great track record of using this kind of information responsibly. As our report details, the data can be abused for official purposes, like spying on protesters merely because they are exercising their constitutionally protected right to petition the government, or unofficial ones, like tracking an ex-spouse.
Prior to the rise of powerful surveillance technology, it simply wasn’t possible to watch all of the people all of the time. But as these natural limits erode and the impossible becomes possible, we have to make conscious choices about how technology should be used.
What’s the right line with license plate readers?
There is a reasonable way to regulate this technology. The primary law enforcement use of these systems is to take pictures of plates to make it possible to check them against “hot lists” of cars of interest to law enforcement. This can be done virtually instantaneously. While plates that generate a “hit” may need to be stored for investigative purposes, there is no need to store plates for months or years to achieve this purpose.
That is to say, the answer to regulating license plate readers is to have strict limits on how long plate data can be retained. While we don’t recommend a specific cutoff date, we think it should be measured in days and weeks, not months and certainly not years.
To their credit, some law enforcement agencies already comply with this principle. For example, the Minnesota State Patrol deletes all data after 48 hours.
Others keep data for longer, and the rationale given is always the same: Although you can’t tell immediately that someone is committing a crime, some of those people may well be doing something wrong, goes the argument. But in our society, the government doesn’t watch all of us all the time just in case we commit a crime.
This is not just an issue we’ll have to decide in the context of license plate readers, but the most important surveillance issue of our time. Should the NSA collect all data about everyone’s calls, just in case it’s useful to identify a terrorist? Why stop there? Why not store all of the contents of the calls we make as well? And emails? This is not just about communications or public movements. It’s also about what happens inside the home. As electric companies convert to “smart grids” that provide them data about the patterns of your electricity usage, it could well become apparent when you take a shower and whether you run your dishwasher more frequently than others in your demographic profile. … Full article
Former Republican presidential candidate Ron Paul appeared on CNN tonight to tell Piers Morgan why he objects to the NSA surveillance program. Morgan directly asked Paul if he would have actually ended surveillance programs if he were president. Paul said he would still want intelligence gathering, but it would be done in a more transparent way, maintaining that the current surveillance program are unquestionably unconstitutional. He directly told NSA defenders that they are simply “justifying dictatorship.”
Paul dismissed the use of a FISA court as a significant enough of a check on the executive branch. He said this program is undeniably “destroying the Constitution,”, and posed a question to anyone who defends the widespread surveillance.
“What should the penalty be for the people who destroy the Constitution? They’re always worrying about how they’re going to destroy the American citizens who tell the truth, to let us know what’s going on, but we ask the question: what is the penalty for people who deliberately destroy the Constitution and rationalize and say, ‘Oh, we have to do it for security.’ Well, frankly, you end up losing–you lose your security and you lose your freedoms too.”
He told NSA defenders that the nation is on a “very dangerous course,” and when they try to say there’s nothing wrong with such massive intelligence gathering, “you’re justifying dictatorship!”
Courtesy of CNN: Video
journeymanpictures · May 7, 2013
For downloads and more information visit: http://www.journey.webbler.co.uk/?lid…
Increasing numbers of ‘terror suspects’ are being arrested on the basis of online and CCTV surveillance data. Authorities claim they act in the public interest, but does this intense surveillance keep us safer?
“I woke up to pounding on my door”, says Andrej Holm, a sociologist from the Humboldt University. In what felt like a scene from a movie, he was taken from his Berlin home by armed men after a systematic monitoring of his academic research deemed him the probable leader of a militant group. After 30 days in solitary confinement, he was released without charges. Across Western Europe and the USA, surveillance of civilians has become a major business. With one camera for every 14 people in London and drones being used by police to track individuals, the threat of living in a Big Brother state is becoming a reality. At an annual conference of hackers, keynote speaker Jacob Appelbaum asserts, “to be free of suspicion is the most important right to be truly free”. But with most people having a limited understanding of this world of cyber surveillance and how to protect ourselves, are our basic freedoms already being lost?
As documented by the Associated Press and other journalists, the NYPD has built a program dedicated to the total surveillance of Muslims in the greater New York City era.
Officers have routinely monitored restaurants, bookstores and mosques and created detailed records of innocent conversations they’ve both had with individuals and eavesdropped on.
The NYPD has also sent paid infiltrators into mosques, student associations and beyond to take photos, write down license plate numbers and keep notes on people for no reason other than because they are Muslim.
Partnering civil rights attorneys filed papers in federal court seeking to stop the NYPD from creating dossiers on innocent Muslim New Yorkers and end the Police Department’s ability to initiate investigations into Muslim New Yorkers when there is no belief that they have engaged or are about to engage in unlawful activity or an act of terrorism.
The filing is part of the Handschu v. Special Services Division proceeding, a decades-old federal case that has produced a series of court orders regulating NYPD surveillance of political and religious activity.
- New York Muslims protest police surveillance (alethonews.wordpress.com)
Yesterday I wrote about Dayton Ohio’s plan for an aerial surveillance system similar to the “nightmare scenario” ARGUS wide-area surveillance technology. Actually, ARGUS is just the most advanced of a number of such “persistent wide-area surveillance” systems in existence and development. They include Constant Hawk, Angel Fire, Kestrel (used on blimps in Afghanistan), and Gorgon Stare.
One of the problems created by these systems—which have heretofore been used primarily in war zones—is that they tend to generate a deluge of video footage. A 2010 article says that American UAVs in Iraq and Afghanistan produced 24 years’ worth of video in 2009, and that that number was expected to increase 30-fold (which would be 720 years’ worth) in 2011. Who knows what that’s up to this year, or where it will be by, say, 2025. The human beings who operate these systems can’t possibly analyze all that footage.
In an attempt to solve this problem, Lawrence Livermore Labs has created a system for the military called “Persistics.” It can be used in conjunction with drone (or manned) camera systems such as ARGUS to help manage the vast oceans of video data that are now being generated. The system is
designed to help the Department of Defense and other agencies monitor tens of square kilometers of terrain from the skies, with sufficiently high resolution for tracking people and vehicles for many hours at a time.
That’s from a May 2011 report that I recently came across with the faintly ominous title “From Video to Knowledge.” Produced by Livermore Labs, it contains a lot of interesting detail about Persistics and the problems and solutions involved in massive aerial video surveillance.
The Persistics system consists of algorithms that “analyze the streaming video content to automatically extract items of interest.”
Its analysis algorithms permit surveillance systems to “stare” at key people, vehicles, locations, and events for hours and even days at a time while automatically searching with unsurpassed detail for anomalies or preselected targets.
With Persistics, the report boasts, “analysts can determine the relationships between vehicles, people, buildings, and events.” Among the capabilities touted in the report are:
- “Seamless stitching” together of images from multiple cameras to create “a virtual large-format camera.”
- Stabilizing video (“essential for accurate and high-resolution object identification and tracking”).
- Eliminating parallax (the difference in how an object appears when viewed from slightly different angles).
- Differentiating moving objects from the background.
- The ability to automatically follow moving objects such as vehicles.
- Creating a “heat map” representation of traffic density in order to “automatically discern if the traffic pattern changes.”
- Comparing images taken at different times and automatically detecting any changes that have taken place.
- Super-high “1,000-times” video compression.
- The ability to provide all the locations a particular vehicle was spotted within a given time frame.
- The ability to provide all the vehicles that were spotted at a particular location within a given time frame.
Technologically, according to the report, the Persistics program relies heavily on the explosion in the power of consumer Graphics Processing Units (GPUs) used in video games and the like.
The report also says that the system “is being further enhanced” to work with ARGUS, and includes new details about that system:
Persistics can simultaneously and continuously detect and track the motion of thousands of targets over the ARGUS-IS coverage area of 100 square kilometers. ARGUS-IS can generate several terabytes of data per minute, hundreds of times greater than previous-generation sensors.
Previous reports said that ARGUS could cover 15 square miles; here it reports 100 square kilometers, which is 38.6 square miles. (I suppose we should expect Moore’s Law-like expansion in the capabilities of these systems.)
Of course, the system is designed to store and retrieve all the records and data about everything that it surveils:
Persistics supports forensic analyses. Should an event such as a terrorist attack occur, the archival imagery of the public space could be reviewed to determine important details such as the moment a bomb was placed or when a suspect cased the targeted area. With sufficiently high-resolution imagery, a law-enforcement or military user could one day zoom in on an individual face in a heavily populated urban environment, thus identifying the attacker.
As with every privacy-invading technology designed and/or sold as helping foil terrorists, we have to wonder how long it will be before it’s applied to tracking peace activists.
Future work on Persistics is focused on the kind of behavioral analytics that have been discussed in the context of programs such as “Trapwire.” Livermore scientists, according to the report, are now working on automated methods for identifying “patterns of behavior” that could indicate “deviations from normal social and cultural patterns” and “networks of subversive activity.”
Also under development are efforts to allow the three-dimensional viewing of targets, as well as “methods to overlay multiple sensor inputs—including infrared, radar, and visual data—and then merge data to obtain a multilayered assessment.”
Of course, much of this is unobjectionable from a domestic civil liberties point of view when it’s used as originally intended: on foreign battlefields. The problem comes when the government brings the technology home and turns it inward upon the American people. In fact, at the close of the report, Livermore contemplates exactly that:
Unmanned aircraft have demonstrated their ISR [intelligence, surveillance, and reconnaissance] value for years in Afghanistan and Iraq. As U.S. soldiers return home, the role of overhead video imagery aided by Persistics technology is expected to increase. Persistics could also support missions at home, such as monitoring security at U.S. borders or guarding ports and energy production facilities. Clearly, with Persistics, video means knowledge—and strengthened national security.
Among the federal agencies most interested in the technology, the report says, is DHS.
- Drone ‘Nightmare Scenario’ Now Has A Name: ARGUS (alethonews.wordpress.com)
Yesterday the drone regulation bill in the Washington state legislature died, having failed to meet the cutoff date for moving to the House floor. Although our lobbyist there thought the bill would have passed both houses had the Democratic leadership allowed it to get there, they did not. Boeing lobbied against the bill, as did law enforcement.
One of the arguments presented by opponents, our Washington state lobbyist Shankar Narayan reports, was the claim that no regulations are needed for drones because we ought to let the courts work out the privacy issues surounding drones and deal with any abuses that arise. I have also heard spokespeople for the drone industry association, the AUVSI, making this argument lately. It seems to be emerging as a primary argument of drone-legislation opponents.
This is a weak argument. Let me briefly give five reasons why:
- There is no reason to wait for abuses to happen when they are easily foreseeable. When you put an enormously powerful surveillance technology in the hands of the police and do not place any restrictions on its use, it will be abused, sooner or later, in ways illegal (i.e. by bad apples) and legal (i.e. through officially approved policies that nonetheless violate our Constitution and/or values). Why wait, when we can prevent them before they take place and spare their victims the grief?
- The legal system has always been very slow to adapt to new technology. For example, it took the Supreme Court 40 years to apply the Fourth Amendment to telephone calls. At first the court found in a 1928 decision that because telephone surveillance did not require entering the home, the conversations that travel over telephone wires are not protected. It was not until 1967 that this literal-minded hairsplitting about “constitutionally protected areas” was overturned (with the court declaring that the Constitution “protects people, not places”). Today, technology is moving far faster than it did in the telephone era—but the gears of justice turn just as slowly as they ever have (and maybe slower).
- There are many uncertainties about how our Constitution will be applied by the courts to aerial surveillance. Just as the new technology of the telephone broke the Supreme Court’s older categories of understanding, so too will drones with all their new capabilities bring up new situations that will not fit neatly within existing jurisprudential categories of analysis. For example, how will the courts view the use of drones for routine location tracking? The Supreme Court started to grapple with such questions in its recent decision in the Jones GPS case, but it is far from clear what the ultimate resolution will be. The Supreme Court has ruled before that the Fourth Amendment provides no protection from aerial surveillance, even in one’s backyard surrounded by a high fence, and while the new factors that drones bring to the equation could shift that judgment, we cannot be certain. Legislators should not sit around waiting for cases to come before the courts; they should act to preserve our values now.
- Legislatures often set rules even when the Constitution would seem to cover something. To take just one example: after the Supreme Court issued that 1967 ruling that a warrant was needed to tap someone’s phone, Congress went on to enact detailed standards the government had to follow before it could do so. What it did not do was throw its hands up and say “the court has ruled, if there are any further abuses we can let the courts take care of them.”
- Our courts often defer to the judgments of elected bodies. While the courts’ role is to step in and protect fundamental rights when they are threatened by the majority, they normally show great deference toward the judgments of elected representatives of the people. And for good reason—we live in a democracy, and unless fundamental rights are at stake decisions should be made by our democratic representatives. A legislature acting to protect fundamental rights such as privacy does not threaten such rights, and there is no reason why elected representatives shouldn’t act to protect our fundamental values if they feel that the citizens in their districts want them to.
Let’s hope that state legislators in other states don’t fall for this line of argument.