Different River

”You can never step in the same river twice.” –Heraclitus

August 12, 2008

Police to track every car in New York City?

Filed under: — Different River @ 4:24 pm

CBS is reporting that they New York Police Department is planning to use “Radiation Sensors, Surveillance Cameras Used To Screen & Follow Every Vehicle Entering Lower Manhattan.”

They quote a supposedly representative “NYC resident Sam Mauer” as saying, “Good idea I think. Anything that makes the city safer is a very good idea.”

Well, yes.

But would someone please explain to me exactly how this is going to make the city safer?

If they don’t have a list of terrorists’ cars, how are they going to use this system to stop anything? And if they do have a list of terrorists’ cars, why waste the time and resources to track all the other cars?

And in any case, how is simply “tracking” cars going to stop any terrorist attacks? If they actually have a list of terrorists’ cars, why not stop them at the entry points, instead of tracking them all over the place — perhaps watching as they do their vile deeds, without bothering to stop them?

It seems to me that there is not only a massive invasion of privacy, but no corresponding benefit in terms of safety or security.

Big Sibling is Watching You.

June 20, 2006

Big Sibling is Watching You

Filed under: — Different River @ 2:26 pm

This is the second article I’ve seen on this in the past couple of weeks:

The future of law enforcement was launched into the smoggy Los Angeles skies at the weekend in the form of a drone aircraft intended to bring spy-in-the-sky technology to urban policing.

The unmanned aerial vehicle, called the SkySeer, looks like a remote-controlled toy and fits into a shoulder bag. In the air, the craft is guided by global positioning system coordinates, and a camera fixed to the underside sends video to a laptop command station.

A prototype is being tested by the LA county sheriff’s department, which says the SkySeer will accomplish tasks too dangerous for officers, and free helicopters for other missions. “This technology could be used to find missing children, search for lost hikers or survey a fire zone,” said Commander Sid Heal, head of the sheriff’s department technology exploration project. “The plane is virtually silent and invisible.”

The SkySeer, which has low-light and infrared capabilities and can fly at speeds of up to 30mph, would also be able to spot burglary suspects.

“A helicopter can be seen and heard and one can make behaviour choices based on that,” said Beth Givens of the Privacy Rights Clearinghouse. “Do we really want to live in a society where our backyard barbecues will be open to police scrutiny?”

Police say the concerns are unwarranted because everybody is already under surveillance.

“You shouldn’t be worried about being spied on by your government,” said Commander Heal. “These days you can’t go anywhere without a camera watching you, whether you’re in a grocery store or walking down the street.”

That’s supposed to make us feel better?

(By the way: If this won’t intrude our privacy any more than what they’ve got already, why do they need it?)

January 6, 2006

Your Phone Records Are For Sale

Filed under: — Different River @ 2:21 pm

And it has nothing to do with the PATRIOT Act, the NSA, or the Bush Administration. According to this article in the Chicago Sun-Times:

The Chicago Police Department is warning officers their cell phone records are available to anyone — for a price. Dozens of online services are selling lists of cell phone calls, raising security concerns among law enforcement and privacy experts.

Criminals can use such records to expose a government informant who regularly calls a law enforcement official.

Suspicious spouses can see if their husband or wife is calling a certain someone a bit too often.

And employers can check whether a worker is regularly calling a psychologist — or a competing company.

“Officers should be aware of this information when giving out their personal cell phone numbers to the general public,” the bulletin said. “Undercover officers should also be aware of this information if they occasionally call personal numbers such as home or the office, from their [undercover] ones.”

I want to know why any undercover officer ever thought doing that was safe. But now, getting the call records is not only possible, but easy — and while too expensive for most people to do it for mere curiousity, it’s cheap enough that most people could afford it if they had a serious reason to want to know:

To test the service, the FBI paid Locatecell.com $160 to buy the records for an agent’s cell phone and received the list within three hours, the police bulletin said.

How well do the services work? The Chicago Sun-Times paid $110 to Locatecell.com to purchase a one-month record of calls for this reporter’s company cell phone. It was as simple as e-mailing the telephone number to the service along with a credit card number. The request was made Friday after the service was closed for the New Year’s holiday.

On Tuesday, when it reopened, Locatecell.com e-mailed a list of 78 telephone numbers this reporter called on his cell phone between Nov. 19 and Dec. 17. The list included calls to law enforcement sources, story subjects and other Sun-Times reporters and editors.

Ernie Rizzo, a Chicago private investigator, said he uses a similar cell phone record service to conduct research for his clients. On Friday, for instance, Rizzo said he ordered the cell phone records of a suburban police chief whose wife suspects he is cheating on her.

“I would say the most powerful investigative tool right now is cell records,” Rizzo said. “I use it a couple times a week. A few hundred bucks a week is well worth the money.”

A glance at their web site shows a list of prices, and guaranteed service in 1-4 business hours for cell phone information (calls, name lookup by number, etc.). They also offer landline information, but they don’t list prices and have a “no information, no charge” guarantee, which implies they can’t always get that information.

I wonder if they have a discount plan for heavy users. Do they call it the “frequent spier” program? :-)

Seriously, though: Would it violate the Fourth Amendment if the government used this service to monitor people’s phone calls? What if the NSA used it to scan the call records for people calling terrorists?

December 22, 2005

It Seems to be Legal

Filed under: — Different River @ 9:00 pm

Lots of folks with the right experience — both Democrats and Republicans — seem to be coming out with convincing arguments that President Bush’s “impeachable” executive order authorizing certain eavesdropping of terrorist suspects and contacts without a court order is in fact perfectly legal.

First John Schmidt, Associate Attorney General in the Clinton Administration, writes:

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that “All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority.”

In other words, even the court that grants the warrants concedes that in certain situations, the warrants are not needed — and these situations are those under discussion now.

Schmidt also noted, as I did earlier, that Jamie Gorelick, who was Deputy Attorney General in the Clinton Administration, and more recently a member of the “9/11 Commission,” testified before Congress on July 14, 1994:

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General.”

Liberal Law Professor Cass Sunstein of the University of Chicago is not entirely decided, but he seems to think it’s likely the President has the authority to wiretap people against whom he also has the right to use military force. The alternative is truly bizzarre — he can order a terrorist bombed, but can’t listen to his phone calls?

(Libertarian?) Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit (and who also teaches at the University of Chicago Law School) writes in the Washington Post contends that this type of surveillance is not a threat to civil liberties. When a libertarian federal judge is willing to say something like that in public, I think it means he thinks it’s legal, also.

John Hinderaker, also a lawyer, quotes Schmidt, and adds additional case citations to make that case that it’s legal, and takes the New York Times to task for ignoring the relevant court decisions:

This morning, I sent the following email to New York Times reporters Eric Lichtblau and Adam Liptak (other Times reporters who have participated in the NSA stories do not publish their email addresses):

In your reporting in the Times you appear to have tried to create the impression that the NSA’s overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

“The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program’s legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

And, the Justice Department has issued a five-page statement explaining why it’s legal.

Meanwhile, the Los Angeles Times carries the allegation that the New York Times has been sitting on this story for a long time, and brought it up now to either (1) influence Congress’ vote on renewing the PATRIOT Act (which has nothing to do with the eavesdropping here), or (2) to bring attention to the issue ahead of the publication next month of a book by a New York Times reporter on the Bush Administrations spying programs.

December 20, 2005

Clinton and Carter Ordered Secret Warrantless Searches

As long as we’re on the subject of President Bush ordering wiretaps of al-Qaeda operatives’ international phone calls and e-mails without court-issued search warrants, Matt Drudge is reporting that President Clinton and President Carter did pretty much the same thing — although President Clinton extended the authority for warrantless searches beyond wiretapping, to include physical searches.

From Executive Order 12139, issued by President Carter on May 23, 1979:

By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act (this chapter) for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

And from Executive Order 12949, issued by President Clinton on February 9, 1995:

By the authority vested in me as President by the Constitution
and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 (“Act”) (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

In fact, Jamie Gorelick, who was Deputy Attorney General in the Clinton Administration, and more recently a member of the “9/11 Commission,” testified before Congress on July 14, 1994:

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General.”

Indeed, as Byron York points out, the Clinton Administration actually used that authority, searching the home of Aldrich Ames without a warrant. Ames was suspected (and later convicted) of spying, so I would guess this qualified him as an “agent of a foreign power” for these purposes, despite that fact that he’s an American citizen.

So when Democrats are crowing that Bush’s order makes him “the first President to ever willingly admit to an impeachable offense,” they have clearly taken leave of the facts, if not their senses.

Byron York also pointed out that when Gorelick announced the Clinton Administration’s position, the Washington Post reported it on page A-19.

Now, when Bush does the same thing (except less, since he didn’t include physical searches), it’s a top story.

Media bias, anyone?

Carl Levin, Strict Constructionist, and the Exclusionary Rule

Last week, the big news story was that shortly after the attacks of 9/11/01, the President “secretly authorized” the National Security Agency to eavesdrop on international phone calls and e-mail messages in which one of the participants was in the United States — without the court-approved warrants “ordinarily required for domestic spying”; that is, for eavesdrop on communications conducted wholly within the United States.*

The president explained the policy at a press conference, disputing the fact that the order was “secret,” at least from Congress:

So, consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program. And it has been effective in disrupting the enemy, while safeguarding our civil liberties.

U.S. Senator Carl Levin (D-MI) had something interesting to say about this:

He cites the law which authorized the use of force in Iraq [sic -- he must have meant the post-9/11/01 use-of-force resolution which did not mention Iraq specifically --DR] as the legal basis for his wiretapping and surveillance program. What he does not do is tell us where in that resolution authorizing force in Iraq does he see that authority. We can’t find any. Where in the Constitution — which not only has an Article II creating an executive branch but has a Bill of Rights protecting the privacy of Americans — where does he find in the Constitution the authority to tap the wires and the phones of American citizens without any court oversight?

I am tempted to answer: “Right after the sentence in the Constitution that guarantees the right to an abortion.” After all, Carl Levin is a well-known supporter of abortion as a Constitutional right. I’d love to hear him admit that there is no more explicit mention of abortion in the Constitution than there is of wiretapping suspected terrorists — a position that the so-called “strict constructionist” school of jurisprudence has been making for a long time.

Ah, but you say — no one ever claimed the right to an abortion was explicitly mentioned in the Constitution. Even the Supreme Court Justice Harry Blackmun, writing the majority opinion in Roe vs. Wade, explicitly admits that, “The Constitution does not explicitly mention any right of privacy,” let alone abortion. Instead, he finds the right to an abortion by reference to the “penumbras of the Bill of Rights,” or as Justice William Douglass put it in Griswold vs. Connecticut, “penumbras, formed by emanations from those guarantees that help give them life and substance.”

So, there you have it, Senator Levin: The president’s authority to wiretap suspected al-Qaeda operatives in the United States comes from the “penumbras, formed by emanations” from the use-of-force resolution passed on September 14, 2001.

(UPDATE, 12/28/05: Alex Tabarrok makes a similar point.)

Seriously, though: My real question is why anyone is surprised by this. A prominent former FBI agent said when he was in the FBI (mid-1960s), it was standard practice for the FBI to conduct warrantless searches. The Clinton Administration’s Project Echelon intercepted so much it’s been called an “information vacuum cleaner.”

Why is all this legal? Because the Supreme Court said it’s legal!

And, the Supreme Court said it’s legal in a decision that has been the very foundation of the liberal view of due process. See, in
Weeks vs. U.S. (1914)
(applied to the states in Mapp vs. Ohio (1961)), the Supreme Court decided that the “penalty” for an illegal search was the that evidence obtained through the illegal search could not be used against a defendant in court. This is called the “exclusionary rule.” As California Supreme Court Justice Stanley Mosk noted:

“The two-fold purpose of the exclusionary rule is to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct.

There are two problems with this, and serious problem, and a really serious problem: First, freeing a(n otherwise) guilty person because of an illegal search does not really penalize law enforcement officers; it penalizes the general population, who are now subject to suffer future crimes by that individual, and a reduced deterrent to crime for other individuals; it also penalized the victim, who is denied justice. Law enforcement officers are not, generally speaking, “paid by the conviction”; the suffer no more than any other citizen when a criminal goes free. Thus, there is no reason to expect that the exclusionary rule actually deters law enforcement officers from conducting illegal searches at all. The exclusionary rule thus fails to achieve the purpose for which it is intended.

More seriously, by in effect limiting the “penalty” for an illegal search to the exclusion of evidence from a criminal trial, the exclusionary rule effectively gives law enforcement a free hand to conduct as many illegal searches and wiretaps as they want, so long as they do not use the evidence so obtained in a criminal trial. This is why J. Edgar Hoover’s FBI could conduct illegal searches wiretaps all over the place with impunity — if anyone discovered the search and complained, they’d just say, “Fine, we won’t use it against you in court.”** This is fine if you’re guilty of something — but no consolation at all if you’re innocent. The FBI could put a hidden camera in your shower or your bedroom, and if you never do anything illegal, you would have absolutely no recourse. The exclusionary rule effectively superseded the common-law criminal and civil penalties for illegal searches.

In effect, the exclusionary rule serves to narrowly construe the fourth amendment privacy protections to apply only to the guilty. If you are guilty, you will be protected from illegally-obtained evidence from being used against you in court. But if you are innocent — whether accused of a crime or not — they can search and wiretap you as much as they want, and as long as you don’t commit a crime, there’s nothing you can do to stop them.

So to answer Senator Levin’s question: Even if the authority to wiretap al-Qaeda isn’t in the war resolution, and isn’t even in the “penumbras, formed by emanations” of the war resolution or the President’s authority as Commander-in-Chief — in short, even if the wiretaps are actually illegal — the President can go ahead and do them anyway.

And his ability to do so comes from the very capstone of liberal jurisprudence.



*Normally, there is division of labor in eavesdropping — the NSA listens to stuff outside the United States, and the FBI listens to stuff inside the United States. I suspect this is due to the fact that the NSA was set up to protect us from foreign threats and the FBI was originally set up to investigate federal crimes within the U.S.

** Actually, law enforcement could effectively, if not strictly legally, use the information indirectly to prosecute criminals. For example, if they heard through a wiretap that a someone was about to commit a crime at a particular time and place, or had hid the loot someplace, they could go there and witness the crime in the open, or “find” the loot. Though they found out where it was through an illegal wiretap, the actual information obtained in the wiretap did not always have to be presented in court for it to be useful. When it didn’t, the exclusionary rule didn’t even protect guilty people. The only protection it provided was when some evidence was available only illegally, and that evidence was necessary either to convict, or to obtain a legitimate warrant.

April 4, 2005

Big Sibling is Watching You

Filed under: — Different River @ 2:01 am

(Yeah, I know you thought it was Big Brother — but that’s so sexist!)

The city of Bellwood, Illinois — a suburb of Chicago — is planning to put police surveillance cameras everywhere in the city. Well, every street, sidewalk, and alley, at least. No word on whether they’ll put them in bedrooms in private homes, but you’d be advised to keep your shades drawn if you live there. Of course, these days that might be considered probable cause for a search.

The cameras will automatically rotate and zoom to focus in on any source of loud noise; most cameras will not be (intentionally) visible to the observer. Police will be able to monitor the cameras from headquarters, and from laptops in their cars (all wireless of course), and city officials will be able to monitor them on PDAs. (Careful if you date the Mayor’s daughter!)

Details from CrimProf . (Hat tip: InstaPundit.)

Unlike them, I’m not a lawyer, but I think — i.e., I’m afraid — that this is perfectly legal. Courts have held that people have no “expectation of privacy” in a public place. As soon as you step out your front door you are in a public place. And maybe even if you just open your door, they could just aim the camera and zoom in, since a policeman standing in front of your door when you open it could theoretically see in. Somehow, I doubt this is what the Founders had in mind when they wrote the Fourth Amendment, but with all that “living constitution” stuff I guess it doesn’t matter.

March 28, 2005

A Question for the Federal Judiciary

Filed under: — Different River @ 8:23 pm

Why is it that the same federal judiciary that finds constitutional rights to abortion and contraception in the “penumbras, formed by emanations” of the search and seizure clause of the fourth amendment, could not find the necessity in a statue requiring a de novo finding of fact for a temporary restraining order to keep someone alive long enough for their de novo finding to have any meaning?

February 24, 2005

Discrimination in Brookline (2)

Filed under: — Different River @ 12:23 pm

A couple of weeks ago I mentioned the story of an Army Lieutenant living in Brookline, Massachusetts, who was denied renewal of his gun permit for reading in the “wrong” section of a public library.

I neglected to include — but should have — another angle to the story: Nearly all non-white gun owners in Brookline have been denied renewal of their permits.

It was the faces of three disillusioned and angry residents that told a story in the lobby of Brookline District Court earlier this week.

There was Kang Lu, a Chinese-born U.S. Army second lieutenant and future military doctor, dressed in uniform, hoping, finally, for redemption in the form of a restored license to carry firearms. Next to him was longtime resident Yat Lau, also Chinese-born, who was similarly rejected in his bid to renew a license to carry a permit that was first issued to him four years ago in Newton.

And finally, sitting quietly on a bench outside the courtroom, was diminutive law paralegal and gospel choir singer Jacqueline Scott, a 53-year-old African-American woman and former domestic abuse victim, who said she has heard “nothing, nothing, nothing,nothing ” from the Brookline Police on her first-time application to carry a gun which she completed in October 2003.

Asked if the he felt as though he and others on hand were being targeted for revocation or non-action on licenses by police because of their race, Lu said only, “If you look around here today, we can let you make that assessment.”

(Note that this is a permit to own, not to carry, a gun, and not just a handgun. So you needed even if you own a hunting or target rifle or shotgun.)

Mass Backwards has been following the excellent coverage of the Brookline TAB on this story, and they report that in addition to denying him his permit renewal, while his old permit was still valid, the Brookline police searched his apartment and seized his guns, without a proper warrant. So they are not only violating his rights under the First Amendment (to use a library) and the Second Amendment (to keep, never mind bear, arms), but also his Fourth Amendment right to be free of unreasonable searches and seizures without a warrant:

Part of Lu’s complaint is that he was called by Raskin to arrange a visit “to discuss” his license application at Lu’s apartment in June 2003. But Raskin used the visit to hand Lu a license denial letter, at which point Raskin – accompanied by several additional officers – confiscated Lu’s firearms.

And, after the story got out, more people are coming out of the woodwork with similar complaints, and they are calling Lieutenant Lu’s lawyer.

After the TAB first reported about Lu’s inability to secure a gun permit, his lawyer Jesse Cohen says he has been besieged by calls from other residents who also have complaints about discourteous treatment and trumped-up reasons for denial of licenses by Brookline police.

He said the complaints focus on the decisions made by Brookline Sgt. Michael Raskin, who is in charge of processing and investigating gun license applications.
“When the TAB printed the first story [Feb. 3], many people came out of the woodwork and contacted me … talking about similar experiences with Sgt. Raskin,” said Cohen, who this week was granted a postponement of the hearing in Brookline to April 7 in order to collect all of the testimony from those who since contacted him.

Cohen also said they are considering filing a federal civil rights lawsuit against the Brookline Police Department. I say go for it.

As I said before, , you would never know from the situation now that the American Revolution started just outside Boston, with a conflict over the (British) government’s confiscation of guns.

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