Category Archives: The 4th Amendment

When can police use drug dogs?

In Illinois v. Caballes, the Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to sniff a vehicle during a legitimate traffic stop.

This decision stems from the case of Roy Caballes, who was pulled over for speeding and subsequently arrested for marijuana trafficking after a drug dog was brought to the scene and alerted on his vehicle. The Illinois Supreme Court reversed his conviction, finding that a drug sniff was unreasonable without evidence of a crime other than speeding.

But in a 6-2 ruling, the Court held that the Fourth Amendment is not implicated when police use a dog sniff during the course of a legal traffic stop. Justice Stevens wrote the Opinion of the Court, finding that since dog sniffs only identify the presence of illegal items — in which citizens have no legitimate privacy interest — the Fourth Amendment does not apply to their use.

What this ruling means for you

The Caballes ruling authorizes police to walk a drug dog around the vehicle during any legitimate traffic stop. If the dog signals that it smells drugs, police then have probable cause to conduct a search.

However, the ruling does not allow police to detain you indefinitely until dogs arrive. The legitimacy of the traffic stop still depends on its duration. Basically, if police can’t bring a dog to the scene in the time it takes to run your tags and write a ticket, the use of the dog becomes constitutionally suspect. So if you’re pulled over and police threaten to call in the dogs, you are not required to consent to searches.

Usually, the officer won’t have a police dog on hand and he needs reasonable suspicion to detain you while waiting for the drug dog. Before the dog arrives, you have the right to determine if you can leave by asking “Officer, am I free to go?” If the officer refuses and detains you until the dogs come, you have the right to remain silent and refuse to consent to any searches.

If a dog arrives, you have the right to refuse to consent to a dog sniff, even if the officer claims you have to. Be aware that unlocking your car at the officer’s request or handing the officer your keys is the same as consenting to a search. You always have the right to refuse by stating “Officer, I don’t consent to any searches.” (Repeat, if necessary.)

If a judge determines that the officer had no justification to detain you until the dog arrived, any evidence discovered by the dog may be thrown out in court.

What this ruling does not do

Caballes does not constitute a significant change in the constitutionality of dog sniffs. This case essentially clarifies previous rulings in which the Court was reluctant to apply the Fourth Amendment to the use of drug dogs.

The ruling also does not apply to the use of police dogs in situations other than legitimate traffic stops. For example, suspicionless dog sniffs in parking lots or on sidewalks are not authorized by Caballes, and the Court has found random drug checkpoints unconstitutional. Nonetheless, the Court’s “no privacy interest in contraband” doctrine is a nasty one, but it might open up possibilities for future legal challenges.

Possible legal challenges to Caballes

The Supreme Court recently agreed to hear a case that casts doubt on the effectiveness of drug dogs to generate probable cause for a vehicle search. In Florida v. Harris, the Florida Supreme Court ruled that a drug dog’s reliability record must also be considered to determine probable cause.

The case will provide long-due scrutiny to the legal assumption that dogs are reliable contraband indicators. In their dissenting opinion of Caballes, Justices Souter and Ginsburg pointed to studies showing that drug dogs frequently return false positives (12.5-60% of the time, according to one study). A recent Chicago Tribune field study revealed that drug dogs are more often wrong than they are right when alerting for drugs in vehicles. (Worse, police often train their dogs to falsely “alert” on suspected vehicles.)

A high court ruling in favor of Harris would effectively overturn Caballes, because a dog “alert” would no longer be enough to justify a vehicle search.

Medical marijuana and the murkiness of “contraband”

17 states and the District of Columbia have legalized the use of medical marijuana for citizens with a doctor’s recommendation. As such, the Caballes “contraband” distinction fails in states such as California or Colorado where hundreds of thousands of people are legally authorized to possess and use it.

After all, if police dogs are regularly alerting on substances that are no longer illegal, that flips the ”no privacy interest in contraband” doctrine on its head. For example, a vehicle search resulting from a drug dog alerting for marijuana in Mendocino or Boulder is unconstitutional under Caballes. The odor of marijuana can no longer be probable cause, because prior to the search it’s impossible for an officer (or a drug dog) to know whether or not the detected marijuana is contraband or not.

While this defense might not work in federal courts — which have yet to recognize the legal standing of medical marijuana — it could be used to challenge dog searches in states that have legalized medical marijuana.

Advertisements

DHS checkpoints

Are you an American Citizen is that a reason to stop you?

 

Know Your Rights: What To Do If You’re Stopped By Police, Immigration Agents or the FBI

We rely on the police to keep us safe and treat us all fairly, regardless of race, ethnicity, national origin or religion. This card provides tips for interacting with police and understanding your rights.

Note: Some state laws may vary. Separate rules apply at checkpoints and when entering the U.S. (including at airports).

YOUR RIGHTS
– You have the right to remain silent. If you wish to exercise that right, say so out loud.
– You have the right to refuse to consent to a search of yourself, your car or your home.
– If you are not under arrest, you have the right to calmly leave.
– You have the right to a lawyer if you are arrested. Ask for one immediately.
– Regardless of your immigration or citizenship status, you have constitutional rights.

YOUR RESPONSIBILITIES
– Do stay calm and be polite.
– Do not interfere with or obstruct the police.
– Do not lie or give false documents.
– Do prepare yourself and your family in case you are arrested.
– Do remember the details of the encounter.
– Do file a written complaint or call your local ACLU if you feel your rights have been violated.

If You Are

 

IF YOU ARE STOPPED FOR QUESTIONING
Stay calm. Don’t run. Don’t argue, resist or obstruct the police, even if you are innocent or police are violating your rights. Keep your hands where police can see them.
Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
You do not have to consent to a search of yourself or your belongings, but police may “pat down” your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.

IF YOU ARE STOPPED IN YOUR CAR
Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
Upon request, show police your driver’s license, registration and proof of insurance.
If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.
Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

IF YOU ARE QUESTIONED ABOUT YOUR IMMIGRATION STATUS
You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers.)
If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.
Do not lie about your citizenship status or provide fake documents.

IF THE POLICE OR IMMIGRATION AGENTS COME TO YOUR HOME
If the police or immigration agents come to your home, you do not have to let them in unless they have certain kinds of warrants.
Ask the officer to slip the warrant under the door or hold it up to the window so you can inspect it. A search warrant allows police to enter the address listed on the warrant, but officers can only search the areas and for the items listed. An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person is inside. A warrant of removal/deportation (ICE warrant) does not allow officers to enter a home without consent.
Even if officers have a warrant, you have the right to remain silent. If you choose to speak to the officers, step outside and close the door.

IF YOU ARE CONTACTED BY THE FBI
If an FBI agent comes to your home or workplace, you do not have to answer any questions. Tell the agent you want to speak to a lawyer first.
If you are asked to meet with FBI agents for an interview, you have the right to say you do not want to be interviewed. If you agree to an interview, have a lawyer present. You do not have to answer any questions you feel uncomfortable answering, and can say that you will only answer questions on a specific topic.

IF YOU ARE ARRESTED
Do not resist arrest, even if you believe the arrest is unfair.
Say you wish to remain silent and ask for a lawyer immediately. Don’t give any explanations or excuses. If you can’t pay for a lawyer, you have the right to a free one. Don’t say anything, sign anything or make any decisions without a lawyer.
You have the right to make a local phone call. The police cannot listen if you call a lawyer.
Prepare yourself and your family in case you are arrested. Memorize the phone numbers of your family and your lawyer. Make emergency plans if you have children or take medication.
Special considerations for non-citizens:
– Ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
– Don’t discuss your immigration status with anyone but your lawyer.
– While you are in jail, an immigration agent may visit you. Do not answer questions or sign anything before talking to a lawyer.
– Read all papers fully. If you do not understand or cannot read the papers, tell the officer you need an interpreter.

IF YOU ARE TAKEN INTO IMMIGRATION (OR “ICE”) CUSTODY
You have the right to a lawyer, but the government does not have to provide one for you. If you do not have a lawyer, ask for a list of free or low-cost legal services.
You have the right to contact your consulate or have an officer inform the consulate of your arrest.
Tell the ICE agent you wish to remain silent. Do not discuss your immigration status with anyone but your lawyer.
Do not sign anything, such as a voluntary departure or stipulated removal, without talking to a lawyer. If you sign, you may be giving up your opportunity to try to stay in the U.S.
Remember your immigration number (“A” number) and give it to your family. It will help family members locate you.
Keep a copy of your immigration documents with someone you trust.

IF YOU FEEL YOUR RIGHTS HAVE BEEN VIOLATED
Remember: police misconduct cannot be challenged on the street. Don’t physically resist officers or threaten to file a complaint.
Write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first).
File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish.
Call your local ACLU or visit www.aclu.org/profiling.

This information is not intended as legal advice.
Produced by the American Civil Liberties Union 6/2010

NSA collecting phone records of millions of Verizon customers daily

Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama

• Read the Verizon court order in full here
• Obama administration justifies surveillance

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largesttelecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered. Read more> 

What you should know about NSA phone data program

WASHINGTON (AP) — The government knows who you’re calling.

Every day. Every call.

Here’s what you need to know about the secret program and how it works:

___

Q: What happened and why is it a big deal?

A: The Guardian newspaper published a highly classified April U.S. court order that allows the government access to all of Verizon’sphone records on a daily basis, for both domestic and international calls. That doesn’t mean the government is listening in, and the National Security Agency did not receive the names and addresses of customers. But it did receive all phone numbers with outgoing or incoming calls, as well as the unique electronic numbers that identify cellphones. That means the government knows which phones are being used, even if customers change their numbers.

This is the first tangible evidence of the scope of a domestic surveillance program that has existed for years but has been discussed only in generalities. It proves that, in the name of national security, the government sweeps up the call records of Americans who have no known ties to terrorists or criminals.

___

Q: How is this different from the NSA wiretapping that was going on under President George W. Bush?

A: In 2005, The New York Times revealed that Bush had signed a secret order allowing the NSA to eavesdrop on Americans without court approval, a seismic shift in policy for an agency that had previously been prohibited from spying domestically. The exact scope of that program has never been known, but it allowed the NSA to monitor phone calls and emails. After it became public, the Bush administration dubbed it the “Terrorist Surveillance Program” and said it was a critical tool in protecting the United States from attack.

“The NSA program is narrowly focused, aimed only at international calls and targeted at al-Qaida and related groups,” the Justice Department said at the time.

But while wiretapping got all the attention, the government was also collecting call logs from American phone companies as part of that program, a U.S. official said Thursday. After the wiretapping controversy, the collection of call records continued, albeit with court approval. That’s what we’re seeing in the newly released court document: a judge’s authorization for something that began years ago with no court oversight.

___

Q: Why does the government even want my phone records?

A: They’re not interested in your records, in all likelihood, but your calls make up the background noise of the global phone system.

Look at your monthly phone bill, and you’ll see patterns: calls home as you leave work, food delivery orders on Friday nights, that once-a-week call to mom and dad.

It’s like that, except on a monumentally bigger scale.

The classified court ruling doesn’t say what the NSA intends to do with your records. But armed with the nation’s phone logs, the agency’s computers have the ability to identify what normal call behavior looks like. And, with powerful computers, it would be possible to compare the entire database against computer models the government believes show what terrorist calling patterns look like.

Further analysis could identify what are known in intelligence circles as “communities of interest” — the networks of people who are in contact with targets or suspicious phone numbers.

Over time, the records also become a valuable archive. When officials discover a new phone numberlinked to a suspected terrorist, they can consult the records to see who called that number in the preceding months or years.

Once the government has narrowed its focus on phone numbers it believes are tied to terrorism or foreign governments, it can go back to the court with a wiretap request. That allows the government to monitor the calls in real time, record them and store them indefinitely.

___

Q: Why just Verizon?

A: It’s probably not. A former U.S. intelligence official familiar with the NSA program says that records from all U.S. phone companies would be seized, and that they would include business and residential numbers. Only the court order involving Verizon has been made public.

In 2006, USA Today reported that the NSA was secretly collecting the phone call records of tens of millions of Americans. The newspaper identified phone companies that cooperated in that effort. The newspaper ultimately distanced itself from that report after some phone companies denied being part of such a government program.

The court document published by The Guardian, however, offers credence to the original USA Today story, which declared: “The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime.”

___

Q: But in this case, a judge approved it. Does that mean someone had to show probable cause that a crime was being committed?

A: No. The seizure was authorized by the Foreign Intelligence Surveillance Court, which operates under very different rules from a typical court. Probable cause is not required.

The court was created by the Foreign Intelligence Surveillance Act of 1978 and is known in intelligence circles as the FISA court. Judges appointed by the president hear secret evidence and authorize wiretapping, search warrants and other clandestine efforts to monitor suspected or known spies and terrorists.

For decades, the court was located in a secure area at Justice Department headquarters. While prosecutors in criminal cases must come to court seeking subpoenas, the FISA judges came to the Justice Department. That changed in 2008 with the construction of a new FISA court inside the U.S. District Court in Washington. The courtroom is essentially a vault, designed to prevent anyone from eavesdropping on what goes on inside.

In this instance, Judge Roger Vinson authorized the NSA to seize the phone records under a provision in the USA Patriot Act, which passed shortly after the Sept. 11, 2001, attacks and vastly expanded the government’s ability to collect information on Americans.

___

Q: If not probable cause, what standard did the government use in this case?

A: The judge relied on one of the most controversial aspects of the Patriot Act: Section 215, which became known colloquially as the “library records provision” because it allowed the government to seize a wide range of documents, including library records. Under that provision, the government must show that there are “reasonable grounds to believe” that the records are relevant to an investigation intended to “protect against international terrorism or clandestine intelligence activities.”

Exactly what “relevant” meant has been unclear. With the release of the classified court order, the public can see for the first time that everyone’s phone records are relevant.

The Justice Department has staunchly defended Section 215, saying it was narrowly written and has safeguarded liberties.

Some in Congress, however, have been sounding alarms about it for years. Though they are prohibited from revealing what they know about the surveillance programs, Democratic Sens. Ron Wyden of Oregon and Mark Udall or Colorado have said the government’s interpretation of the law has gone far beyond what the public believes.

“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act,” the senators wrote in a letter to Attorney General Eric Holder last year.

___

Q: Why don’t others in Congress seem that upset about all this?

A: Many members of Congress have known this was going on for years. While Americans might be surprised to see, in writing, an authorization to sweep up their phone records, that’s old news to many in Congress.

“Everyone should just calm down and understand that this isn’t anything that’s brand new,” Senate Majority Leader Harry Reid, D-Nev., said Thursday. “It’s been going on for some seven years.”

Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., and Vice Chairman Saxby Chambliss issued a similar statement:

“The executive branch’s use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress.”

___

Q: What does the Obama administration have to say about this?

A: So far, very little. Despite campaigning against Bush’s counterterrorism efforts, President Barack Obama has continued many of the most controversial ones including, it is now clear, widespread monitoring of American phone records.

The NSA is particularly reluctant to discuss its programs. Even as it has secretly collected millions of phone records, it has tried to cultivate an image that it was not in the domestic surveillance business.

In March, for instance, NSA spokeswoman Vanee Vines, emailed an Associated Press reporter about a story that described the NSA as a monitor of worldwide internet data and phone calls.

“NSA collects, monitors, and analyzes a variety of (asterisk)(asterisk)(asterisk)FOREIGN(asterisk)(asterisk)(asterisk) signals and communications for indications of threats to the United States and for information of value to the U.S. government,” she wrote. ” (asterisk)(asterisk)(asterisk)FOREIGN(asterisk)(asterisk)(asterisk) is the operative word. NSA is not an indiscriminate vacuum, collecting anything and everything.”

___

Q: Why hasn’t anyone sued over this? Can I?

A: People have sued. But challenging the legality of secret wiretaps is difficult because, in order to sue, you have to know you’ve been wiretapped. In 2006, for instance, a federal judge in Detroit declared the NSA warrantless wiretapping program unconstitutional. But the ruling was overturned when an appeals court that said the plaintiffs — civil rights groups, lawyers and scholars — didn’t have the authority to sue because they couldn’t prove they were wiretapped.

Court challenges have also run up against the government’s ability to torpedo lawsuits that could jeopardize state secrets.

The recent release of the classified court document is sure to trigger a new lawsuit in the name of Verizon customers whose records were seized. But now that the surveillance program is under the supervision of the FISA court and a warrant was issued, a court challenge is more difficult.

Suing Verizon would also be difficult. A lawsuit against AT&T failed because Congress granted telecommunications companies retroactive immunity for cooperating with warrantless surveillance. In this instance, Verizon was under a court order to provide the records to the government, making a lawsuit against the company challenging.

___

Q: Can the government read my emails?

A: Not under this court order, but it’s not clear whether the NSA is monitoring email content as part of this program.

In 2006, former AT&T technician Mark Klein described in federal court papers how a “splitter” device in San Francisco siphoned millions of Americans’ Internet traffic to the NSA. That probably included data sent to or from AT&T Internet subscribers, such as emails and the websites they visited.

Most email messages are sent through the Internet in “plain-text” form, meaning they aren’t encrypted and anyone with the right tools can view their contents. Similar to an old-fashioned envelope and letter, every email contains details about whom it’s from and where it’s supposed to go.

Unlike postal letters, those details can include information that can be linked to a subscriber’s billing account, even if he or she wants to remain anonymous.

In May 2012, Wyden and Udall asked the NSA how many people inside the United States had their communications “collected or reviewed.”

The intelligence community’s inspector general, I. Charles McCullough III, told the senators that providing such an estimate “would likely impede the NSA’s mission” and “violate the privacy of U.S. persons.”

___

Credit/Source
:

Associated Press writers Jack Gillum and Lara Jakes contributed to this report

Chris Hedges: Monitoring of AP Phones a “Terrifying” Step in State Assault on Press Freedom

The writing is on the wall, the Government is breaking the law and does not care about our Constitutional Rights to freedom. They are showing that they will do whatever it takes to violate our rights to privacy.  This is a blatant disreguard the constitutional rights of Americans and the freedom of the press to be protected from any dictatorship type government that shows no respect to citizens.  Again, I say enough is enough.  It is time to stand up against this type of government.  Don’t be caught asleep at the wheel and lose your rights to freedom.
The Pulitzer-prize winning columnist calls the revelations “one more assault in a long series of assault against freedom of information and freedom of the press.”

The Pulitzer Prize-winning journalist Chris Hedges joined Democracy Now! to discuss what could mark the most significant government intrusion on freedom of the press in decades. The Justice Department has acknowledged seizing the work, home and cellphone records used by almost 100 reporters and editors at the Associated Press. The phones targeted included the general AP office numbers in New York City, Washington, D.C., and Hartford, Connecticut, and the main number for the AP in the House of Representatives press gallery. The action likely came as part of a probe into the leaks behind an AP story on the U.S. intelligence operation that stopped a Yemen-based al-Qaeda bombing plot on a U.S.-bound airplane. Hedges, a senior fellow at The Nation Institute and former New York Times reporter, calls the monitoring “one more assault in a long series of assault against freedom of information and freedom of the press.” Highlighting the Obama administration’s targeting of government whistleblowers, Hedges adds: “Talk to any investigative journalist who must investigate the government, and they will tell you that there is a deep freeze. People are terrified of speaking, because they’re terrified of going to jail.”

NERMEEN SHAIKH: U.S. Attorney General Eric Holder [headed to Capitol Hill on Wed, facing questions] over Justice Department’s decision to secretly seize the work, home and cellphone records used by almost a hundred reporters and editors at the Associated Press. On Tuesday, Holder defended the move as a necessary step in a criminal probe of leaks of classified information.

The phones targeted by the subpoena included the general AP office numbers in New York City; Washington, D.C.; and Hartford, Connecticut; and for the main number for the AP in the House of Representatives press gallery. The records were from April and May of 2012. Among those whose records were obtained were Matt Apuzzo, Adam Goldman, three other reporters and an editor, all of whom worked on a story about an operation conducted by the CIA and allied intelligence agencies that stopped a Yemen-based al-Qaeda plot to detonate a bomb on an airplane headed for the United States.

AMY GOODMAN: The Associated Press had delayed publication of the story ’til May 7, 2012, at the government’s request. One day before the AP story was finally published, a U.S. drone strike in Yemen killed Fahd al-Quso, a senior leader of al-Qaeda in the Arabian Peninsula. Attorney General Holder, who says he recused himself from the leak probe, defended his department’s actions.

ATTORNEY GENERAL ERIC HOLDER: This was a very serious—a very serious leak, and a very, very serious leak. I’ve been a prosecutor since 1976, and I have to say that this is among, if not the most serious, it is within the top two or three most serious leaks that I’ve ever seen. It put the American people at risk. And that is not hyperbole. It put the American people at risk. And trying to determine who was responsible for that, I think, required very aggressive action.

NERMEEN SHAIKH: Attorney General Eric Holder, speaking Tuesday. In a letter to Holder, AP’sCEO Greg Pruitt protested the government’s seizing of journalists’ phone records. He wrote, quote: “There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

AMY GOODMAN: In an editorial today, The New York Times strongly criticized the Justice Department’s move. The editors wrote, quote: “These tactics will not scare us off, or The A.P., but they could reveal sources on other stories and frighten confidential contacts vital to coverage of government.”

Well, we’re joined right now by a former Pulitizer Prize-winning journalist from The New York Times. He’s now a senior fellow at The Nation Institute and author, along with Joe Sacco, of the book Days of Destruction, Days of Revolt. We’re joined by Chris Hedges. … Your response to this revelation about the—about what happened with AP and the U.S. government?

CHRIS HEDGES: Well, it’s part of a pattern. That’s what’s so frightening. And it’s a pattern that we’ve seen, with the use of the Espionage Act, to essentially silence whistleblowers within the government—Kiriakou, Drake and others, although Kiriakou went to jail on—pled out on another charge—the FISA Amendment Act, which allows for warrantless wiretapping, the National Defense Authorization Act, which allows for the stripping of American citizens of due process and indefinite detention. And it is one more assault in a long series of assault against freedom of information and freedom of the press. And I would also, of course, throw in the persecution of Julian Assange at WikiLeaks and Bradley Manning as part of that process.

NERMEEN SHAIKH: Well, Chris Hedges, you wrote in the recent article that was published, your article “Death of Truth” in Truthdig and Nation magazine—you also write about the significance of the Espionage Act and how often it’s been invoked, and you say that it eviscerates the possibility of an independent press. So could you talk about the Espionage Act and how it also is somehow related to this AP story?

CHRIS HEDGES: Well, it’s been used six times by the Obama administration. It was written in 1917 and was—is our Foreign Secrets Act. It is never meant—it was not designed to shut down whistleblowers, first used against Daniel Ellsberg in the Pentagon Papers. So, three times from 1917 until Obama takes office in 2009, six times. And if you talk to investigative journalists in this country, who must investigate the inner workings of government, no one will talk, even on background. People are terrified. And this is, of course—the seizure of two months of records, of AP records, is not really about going after AP; it’s about going after that person or those people who leaked this story and shutting them down. And this canard that it endangered American life is—you know, there’s no evidence for this. He’s not—yeah.

AMY GOODMAN: Well, the news conferences that Eric Holder and the White House held yesterday were interesting. This is White House spokesperson Jay Carney questioned Tuesday about the AP spying scandal and the Obama administration’s prosecution of whistleblowers.

REPORTER: This administration in the last four years has prosecuted twice as many leakers as every previous administration combined. How does that reflect balance?

PRESS SECRETARY JAY CARNEY: I would say that the president is committed to the press’s ability to pursue information, to defending the First Amendment. He is also, as a citizen and as commander-in-chief, committed to the proposition that we cannot allow classified information to be—that can do harm to our national security interests or to endanger individuals to be—to be leaked. And that is a balance that has to be struck.

REPORTER: But the record of the last four years does not suggest balance.

PRESS SECRETARY JAY CARNEY: That’s your opinion, Ari. But I—

REPORTER: No, it’s twice as many prosecutions as all previous administrations combined. That’s not even close.

PRESS SECRETARY JAY CARNEY: Well, I—I understand that there—you know, that there are ongoing investigations that preceded this administration, but I—again, I’m not going to—I can tell you what the president’s views are. And the president’s views include his defense of the First Amendment, his belief that journalists ought to be able to pursue information in an unfettered way, and that is backed up by his support for a media shield law, both as senator and as president. And it is also true that he believes a balance needs to be struck between those goals and the need to protect classified information.

AMY GOODMAN: And the questions of Jay Carney about the spying scandal on AP just continued.

REPORTER: As a principle, does the president approve of the idea of prosecutors going through the personal phone records and work phone records of journalists and their editors?

PRESS SECRETARY JAY CARNEY: I—I appreciate the effort to generalize the question, but, obviously, that goes right to the heart of some of the reporting on this specific case. I can tell you that the president believes that the press, as a rule, needs to be—to have an unfettered ability to pursue investigative journalism and—

REPORTER: How can it be unfettered if you’re worried about having your phone records—

PRESS SECRETARY JAY CARNEY: Well, again, I can’t—I can’t respond to this in the specific. And, you know, I—I am very understanding of the questions on this issue and—and appreciate the—the nature of the questions. And I think they—they go to important issues, and they go to the fundamental issue of finding the balance between—when it comes to leaks of classified information of—of our nation’s secrets, if you will, between the need to protect those—that information, because of the national security implications of not protecting them, on the one hand, and the need to allow for an unfettered press and its—in its pursuit of investigative journalism.

AMY GOODMAN: That is Jay Carney, the White House press spokesperson, who used to be the Washington bureau chief of Time magazine. Your response, Chris Hedges?

CHRIS HEDGES: Well, I find, you know, all of these measures to essentially shut down the freedom of information, including the persecution of Assange and Manning, as symptomatic of a reconfiguration of our society into a totalitarian security and surveillance state, one where anyone who challenges the official narrative, who digs out cases of torture, war crimes—which is, of course, what Manning and Assange presented to the American public—is going to be ruthlessly silenced. And I find the passivity on the part of the mainstream press, publications like The New York Times,The GuardianEl PaísDer Spiegel, all of which, of course, used this information, and turning their backs on Manning and Assange, to be very shortsighted for precisely this reason. If they think it’s just about Manning and Assange, then they have no conception of what it is that’s happening. And, you know, everyone knows, within the administration, within the National Security Council, the effects of climate change, the instability that that will cause, the economic deterioration, which is irreversible, and they want the mechanisms by which they can criminalize any form of dissent. And that’s finally what this is about.

NERMEEN SHAIKH: And what do you think allowed this to happen, Chris Hedges? You think it’s related to, you’ve suggested in your piece, the war on terror, that it gave kind of sanction, in a way, to this kind of crackdown on journalists?

CHRIS HEDGES: Well, you know, it becomes the same paradigm in the war against communism. It’s an excuse to ferret out and destroy legitimate movements that challenge centers of power. And that’s, of course, how the war on terror has worked in exactly the same way. But we are seeing environmental activists, Occupy activists, people who function, like Manning, as a whistleblower being caught up in this war on terror and silenced through these rules.

So what they do is they pass, you know, for instance, Section 1021 of the NDAA. They pass it in the name of the war on terror, but then they can use it. Anybody can become a terrorist. I mean, in the trial in federal court, which we brought against—in the Southern District, we used, in the Stratfor-leaked emails that were put out by WikiLeaks, where they were trying to link a group that was close to Occupy, US Day of Rage, and al-Qaeda. That’s precisely what happened. So when we allow this kind of thing to go forward, we essentially shut down any ability not only to ferret out what’s happening internally within the mechanisms of power, but to protest or carry out dissent.

AMY GOODMAN: I want to go back to another clip of the news conference of Attorney General Eric Holder being questioned on Tuesday.

REPORTER: The real question here, the underlying question, is the policy of the administration when it comes to the ability of the media to cover the news. And I think the question for you is, given the fact that this news organization was not given an opportunity to try to quash this in court, as has been precedent, it leaves us in the position of wondering whether the administration has somehow decided policy-wise that it’s kind of going to go after us.

ATTORNEY GENERAL ERIC HOLDER: Well, that is certainly not—I mean, I can talk about policy. That is certainly not the policy of this administration. If you will remember, in 2009, when I was going through my confirmation hearings, I testified in favor of a reporter shield law. We actually, as an administration, took a position in favor of such a law, didn’t get the necessary support up on the Hill. It is something this administration still thinks would be—would be appropriate. We’ve investigated cases on the basis of the facts, not as a result of a policy to get the press or to do anything of that nature. The facts and the law have dictated our actions.

AMY GOODMAN: That’s Attorney General Eric Holder. Chris Hedges, I wanted you to respond to him and then talk about your recent trip. Well, you just came back from London, where you met with Julian Assange in the Ecuadorean embassy, and then you came here and went to Pennsylvania and met with Mumia Abu-Jamal.

CHRIS HEDGES: It was a good week. Yes. I mean, I find what’s happening terrifying, truly frightening. And when you look closely at all of the documents that were purportedly given to WikiLeaks by Bradley Manning and published through Assange, none of them were top-secret. I mean, as a former investigative reporter for The New York Times, it was my job to go and find out often top-secret information. And that’s why I can’t understand the inability of the traditional press to grasp that we are now in the last moments of an effort to, in essence, effectively extinguish press freedom. And if you—I mean, AP is an—like The New York Times, an amazingly cautious organization, but read the comments. I mean, they get it, internally. But, unfortunately, you know, they have divided us against ourselves, and—and this is—you know, what we’ve undergone, as John Ralston says and as I’ve said many times, a kind of corporate coup d’état.

What we are seeing is a system put into place where it’s all propaganda. And anybody who challenges—I mean, look, this constant reference to a shield law is absurd, because they just violated the shield law by not going to court and informing AP of a subpoena but doing it secretly. So, I mean, you’ve got to hand it to the Obama administration. They’re far more clever than their predecessors in the Bush administration, but they’re carrying out exactly the same policy of snuffing out our most basic civil liberties and our most important press freedoms. And that’s because they know what’s coming, and they are going to legally put in a place by which any challenge to the centers of corporate power become ineffectual or impossible.

NERMEEN SHAIKH: But how do you think this is already impacting the work of journalists?

CHRIS HEDGES: Well, talk to any investigative journalist who must investigate the government, and they will tell you that there is a deep freeze. People are terrified of speaking, because they’re terrified of going to jail. And Kiriakou is now sitting for 30 months in a prison in Pennsylvania. So—

AMY GOODMAN: And Kiriakou is?

CHRIS HEDGES: That’s the former CIA official who purportedly gave information to The New York Times. And, you know, they’ve subpoenaed Risen’s records, both for his book and—

AMY GOODMAN: James Risen of The New York Times.

CHRIS HEDGES: Right, of the Times. I mean, so, it is—

AMY GOODMAN: For reporting on warrantless wiretapping.

CHRIS HEDGES: Exactly. And—

AMY GOODMAN: Which they held onto, a story they held onto for more than a year and that took the—

CHRIS HEDGES: Well, that gets into the cowardice of The New York Times, but that’s another show. Yeah, it was about to come out in the book, and then the _Times_’ Bill Keller ran it, because—but they had held it. And so, yeah, I think we’re in a very, very frightening moment.

AMY GOODMAN: And the fact that these—the phones were—the logs were taken of these different phones that more than a hundred AP reporters used, reporters and editors, shows who is calling them and who they’re calling.

CHRIS HEDGES: Right, that’s what they want.

AMY GOODMAN: So, talk about the significance of that.

CHRIS HEDGES: Right. Well, what they’re clearly—

AMY GOODMAN: These aren’t tape-recorded conversations.

CHRIS HEDGES: Right. And, I mean, having done that kind of work, I’m almost certain that whoever gave the AP this information didn’t give it to them over the phone. But what they’re doing is finding out—matching all of the phone records to find out who had contact with someone in an AP bureau, whether that was in New York or Hartford or Washington or wherever else, and then they will probably use the Espionage Act to go after them, as well. That would—that’s certainly what the Obama administration has done since its inception.

AMY GOODMAN: Very briefly, can you talk about your visit with Julian Assange and then your visit with journalist Mumia Abu-Jamal?

CHRIS HEDGES: Well, I mean, I have tremendous respect for Julian Assange and what he’s done. Again, even within the liberal intelligentsia, who should know better, they’ve turned their back on him. You know, whatever the sexual misconduct charges in Sweden were, it certainly wasn’t rape, but there was something. But that has been used—

AMY GOODMAN: Well, they aren’t charges, but he’s wanted for questioning.

CHRIS HEDGES: Well, he’s actually not been charged at all, so that’s right, in a legal sense. But, you know, that kind of character assassination has left him very much alone. And I think the courage of a Manning, the courage of an Assange, the courage of a Mumia—I mean, how that man remains unbroken. I was there with Cornel West and the theologian James Cone. I mean, it was a privilege for me. I mean, three of the probably greatest African-American intellectuals in the country, and certainly radicals. It’s—you know, those people who hold fast to the—a kind of moral imperative, or hold fast to the capacity for dissent, whether that’s Manning, who exhibited—I was in the courtroom when he read his statement—tremendous courage, poise, whether that’s Assange, whether that’s Mumia, let’s look at where all those three people are, because for all of us who speak out, that’s where they want us to be, as well. And that gets back to this AP story, because that is exactly the process that we are undergoing and where—if they win, where we’re headed.

Source

Tagged

Your Right of Defense Against Unlawful Arrest

In this day and age where we are seeing more incidents of police abuse of their power.  I think it is time for the citizens to exercise their right to resist an unlawful arrest.  Police have abused their rights and authority that are no longer protecting citizens, they are the reasons that citizens now need to make sure they bear arms to protect themselves.  Just because they wear uniforms carry badges and take it off, does not mean that they follow the law as we have seen repeatedly on the news cops are abusing their position and overstepping their bounds, killing citizens and then covering up their illegal acts and no one, not even the court system is stepping up to defend us, the citizens from backups.  Therefore, this task is left to the people, and I’m not saying go kill cops, but I am saying a cop becomes a normal citizen when he abuses the law in his position of power to bring harm to a citizen at that point, a citizen is within their rights to defend themselves from such actions at any cost. For information on this please below. 

police-w-nightstick

“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

Source

Allen vs Adair

Restoring the right to resist unlawful arrest

 

 

Tagged

Dirty Cops LAPD

Here is the question when does a citizen have the right to protect themselves against unlawful arrest, unlawful search and seizure and when does the police stop go from legal to illegal. If a police stop is determined to be illegal, and an officer is using force that is not legal, does a citizen have the right to protect themselves by fighting back?
For more information on your right of defense against unlawful arrests. Click here

It is easy to criticize this video because the guy insisted on holding the camera vertical, but it’s becoming obvious that smartphone companies need to build their phones to record horizontally even if you hold it vertically as we can do with the Flip.

After all, it’s easier to hold the phone with one hand when it’s in the vertical position.

In this video, which I am unable to tell where and when it took place, a cop has a motorcyclist pulled over, who insists on recording with his cell phone.

The cop, who appears to be waiting for another cop, can’t stand it anymore and finally pounces on the man. The last words we hear before the clip ends is, “You are being de …”

We can only imagine he was being detained.

I’m sure by morning, readers will have provided the rest of the story.

UPDATE: It has since been determined this is an LAPD cop.

Source

Tagged

Outrage Grows Over Justice Department Seizure of Associated Press Phone Records

bad-copCritics condemn Holder’s secret subpoena as an ‘abuse of power.’

When the news broke yesterday afternoon it was at first hard to believe, yet, when one thought about it for a bit, it seemed all too part of a pattern. The Associated Press itself broke the news that the US Department of Justice had notified AP last Friday that it had secretly obtained telephone records for more than twenty separate telephone lines assigned to AP journalists and offices (both cell and home phone lines).

Their report continued, “AP is asking the DOJ for an immediate explanation of the extraordinary action and for the records to be returned to AP and all copies destroyed. AP President and CEO Gary Pruitt protested the massive intrusion into AP’s newsgathering activities in a letter to Attorney General Eric Holder…. Prosecutors have sought phone records from reporters before, but the seizure of records from such a wide array of AP offices, including general AP switchboards numbers and an office-wide shared fax line, is unusual and largely unprecedented.”

Of course, the Obama administration has aggressively gone after leakers and brought six cases against whistleblowers, more than previous administrations combined.

Pruitt (who I met several times a few years back when he headed McClatchy), wrote:

There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know. We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.

Kathleen Carroll, the longtime AP executive editor, said on MSNBC this morning: “I’ve been in this business more than thirty years and our First Amendment lawyers and our lawyers inside the AP and our CEO is also a well-known First Amendment lawyer—none of us have seen anything like this.”  Glen Greewwald at The Guardian hits the DOJ, as you might expect.

While no explanation was given, speculation quickly centered on an AP scoop from last May about a foiled terror plot coming out of Yemen, involving plans to blow up an airliner bound for the United States.

Response was swift and angry—from left and right (the latter perhaps mainly happy to have another Obama “scandal” to exploit), all the way to The Daily Showlate in the dayBen Wizner, director of the ACLU Speech, Privacy, and Technology Project called it an “abuse of power.” The Newspaper Association of America, a leading trade group, declared, “These actions shock the American conscience and violate the critical freedom of the press protected by the U.S. Constitution and the Bill of Rights.”

Others defended the move, noting that it had been handled through proper channels—that is, a judge had approved it. The White House said it had no involvement in the action at all.

This New York Times story offers a fair look. Ex–newspaper reporter Charles P. Pierce calls for Eric Holder’s resignation. Here’s a tough response from EFF, including:

It is disturbing enough that the government appears to have violated its own regulations for subpoenas to the news media. However, this revelation also shows that we have a severe problem in protecting the privacy of our communications. It is critical to update our privacy laws and our understanding of the Constitution, and reflect the realities of what law enforcement can determine from our records and other metadata about our communications stored with our communications providers, be they phone companies, ISPs or social networks.

Source

Tagged , , , ,

DOJ: We Don’t Need Warrants For E-mail, Facebook chats…

The new threat to Americans is the government itself.  The DOJ thinks that it is above the law and the Constitution that rules this land.  The United States Department of Justice and FBI believe they don’t need a search warrant to review Americans, emails, Facebook chats, twitter, direct messages and other private files.  I will say it again.  Enough is enough.  We the ‘People’ need to take a stand against the government that no longer serves the people, but is more out to rule and dictate the people by illegal means.

holder_610x407

The headlines in today’s news are very frightening.  In this day and age where the government is trying to take our guns, police are violating our rights and the government fails to obey and adhere to the Constitution itself.  These are scary times my friend.

The U.S. 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.

Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.

The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly “all records from an ISP.” And the U.S. attorney in Houston recently obtained the “contents of stored communications” from an unnamed Internet service provider without securing a warrant signed by a judge first.

“We really can’t have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they’re going to be,” says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. “Courts and Congress need to step in.”

The Justice Department’s disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents “may subpoena” e-mail records from companies “without running afoul of” the Fourth Amendment.

The department did not respond to queries from CNET Tuesday. The FBI said in a statement that:

 

 In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our field offices work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.

 

Not all U.S. attorneys have attempted to obtain Americans’ stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 U.S. Attorneys’ offices — including the northern California office that’s prosecuted an outsize share of Internet cases. The answer, according to assistant U.S. attorney Christopher Hardwood, was “no.”

Still, the position taken by other officials — including the authors of the FBI’s official surveillance manual — puts the department at odds with a growing sentiment among legislators who insist that Americans’ private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone’s living room, or a physical letter stored in a filing cabinet, should apply.

After the IRS’s warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: “We believe these actions are a clear violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.”

Steven Miller, the IRS’ acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data — Google Drive and Dropbox files, private Facebook and Twitter messages, and so on — could be accessed without a warrant.

Albert Gidari, a partner at the Perkins Coie law firm who represents technology companies, said since the Sixth Circuit Court of Appeals’ 2010 ruling in U.S. v. Warshak, the Justice Department has generally sought court warrants for the content of e-mail messages, but is far less inclined to take that step for non-email files.

Before the Warshak decision, the general rule since 1986 had been that police could obtain Americans’ e-mail messages that were more than 180 days old with an administrative subpoena or what’s known as a 2703(d) order, both of which lack a warrant’s probable cause requirement and are less privacy protective. Some e-mail providers, including Google, Microsoft, Yahoo, and Facebook, but not all, have taken the position after Warshak that the Fourth Amendment mandates warrants for e-mail all over the country.

The 180-day rule stems from the Electronic Communications Privacy Act, which was adopted in the era of telephone modems, BBSs, and UUCP links, and long before gigabytes of e-mail stored in the cloud was ever envisioned. Since then, the appeals court ruled in Warshak, technology had changed dramatically: “Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away… By obtaining access to someone’s e-mail, government agents gain the ability to peer deeply into his activities.”

A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter, as well as liberal, conservative, and libertarian advocacy groups, have asked Congressto update ECPA to make it clear that law enforcement needs a warrant to access private communications and the locations of mobile devices.

In November, a Senate panel approved the e-mail warrant requirement, and acted again last month. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley,introduced similar legislation in the House of Representatives.

The political pressure, coupled with public petitions and increased adoption of cloud-based services, has had an effect. In 2011, James Baker, the associate deputy attorney general,warned that requiring search warrants to obtain stored e-mail could have an “adverse impact” on criminal investigations. By March 2013, however, Elana Tyrangiel, an acting assistant attorney general, indicated that the department would acquiesce on some privacy reforms.

“They dropped their opposition in Congress, but they’re going to try to wiggle out from under the Fourth Amendment whenever possible,” says the ACLU’s Wessler. “They probably realize that they couldn’t figure out a way to respond to hard questions from Congress anymore.”

Separately, the New York Times reported Tuesday evening that the Obama administration may embrace the FBI’s proposal for a federal law mandating that tech companies build in backdoors for surveillance. CNET reported last year that the FBI has asked the companies not to oppose such legislation, and that the FBI has been building a case for a new law by collecting examples of how communications companies have stymied government agencies.

Last week, FBI former counterterrorism agent Tim Clemente told CNN that, in national security investigations, the bureau can access records of a previously-made telephone call. “All of that stuff is being captured as we speak whether we know it or like it or not,” he said. Clementeadded in an appearance the next day that, thanks to the “intelligence community” — a likely reference to the National Security Agency — “there’s a way to look at digital communications in the past.”

Source

 

Tagged , , ,