stories filed under: "searches"

NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment

from the legal-loopholes dept

Fri, Aug 9th 2013 10:36am — Mike Masnick

We already wrote about the bombshell revelation from the Guardian that the NSA changed the rules in October of 2011, so that it had permission to do warrantless searches on US persons (contrary to public claims). However, Marcy Wheeler recognized the date of that update is the very same date that the FISA court supposedly smacked down the NSA for violating the 4th Amendment with some searches.

If you don't recall, about a year ago, under pressure from Senator Wyden, the US government admitted (late on a Friday evening) that, indeed, the FISA court had "on one occasion" ruled that certain activities concerning Section 702 "minimization" (i.e., trying to avoid searches on US persons) were "unreasonable under the Fourth Amendment." And yet, that very same day, the NSA announced that the rules had changed and it could do searches on US persons, following a certain (undisclosed) "oversight process." Wheeler notes that the NSA seems to have interpreted the FISA court smacking it down for spying on Americans as a form of permission to spy on Americans:

The FISC Court didn't just "approve" minimization procedures on October 3, 2011. In fact, that was the day that it declared that part of the program violated the Fourth Amendment.

So where the glossary says minimization procedures approved on that date "now allow" for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate "an effective oversight process," even while approving the idea in general.

And note that FISC didn't, apparently, require that ODNI/DOJ come back to the FISC to approve that new "effective oversight process."

Wheeler goes further, providing details from the discussion in the Senate Intelligence Committee during the debate over reauthorizing the FISA Amendments Act (which is where 702 comes from), in which it was strongly hinted that the FISA court had "concerns" about this very type of backdoor searching, and despite acknowledging this, no one bothered to close that backdoor. In fact, it now appears that the NSA and the Director of National Intelligence may have used all of this as a cover to argue that they are authorized to do these kinds of searches.

Filed Under: 4th amendment, faa, fisa amendments act, fisa court, fisc, nsa, nsa surveillance, searches, section 702, surveillance

16 Comments

NY Times Reveals NSA Searches All Emails In & Out Of The US; Will It Offer Up Its Source For Prosecution?

from the just-wondering dept

Thu, Aug 8th 2013 11:47am — Mike Masnick

This morning, the NY Times' Charlie Savage broke yet another story concerning the NSA domestic surveillance efforts, revealing that... the NSA does a scan of every email going in or out of the US:

The National Security Agency is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials.

The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.

Again this is the kind of thing that many people had assumed was going on, but it hadn't been confirmed until now. Of course, the NSA's response was not to talk about whether or not this was true, but to claim, yet again, that everything it's doing is "authorized," which is a way of deflecting the fact that it's almost certainly unconstitutional. In this case, the claim is that the NSA isn't storing these emails, but rather: "temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border," and the whole process only takes "a small number of seconds" before the records are deleted.

This report raises a whole bunch of issues, but let's focus on two of them:

Right, so remember that last post, where Barack Obama claimed that there is no domestic spying program? Yeah, so about that... Here's a bit more evidence of just what a lie that is.
Here's the bigger one, though. Just yesterday, the NY Times published an astounding editorial that suggests that the US should punish Russia for not sending Ed Snowden back. It is effectively calling for the prosecution of a key whistleblower concerning NSA surveillance.

So, I'm wondering, does the NY Times editorial board believe that Charlie Savage's source -- who is revealing information not unlike that which Snowden revealed -- shouldn't be protected, should be revealed and should be prosecuted? Because I would imagine that both Savage and that source would find that very uncomfortable. At this point, if you're a government whistleblower, why would you ever go to a reporter at the NY Times when they're supportive of prosecuting sources and whistleblowers?

This latest revelation is important, and it's great that Savage was able to get the information and reveal it -- but why would his own employers so undermine his ability to do that kind of reporting by supporting the prosecution of other whistleblowers and leakers?

Filed Under: charlie savage, email, nsa, nsa surveillance, searches, sources, whitleblowers
Companies: ny times

30 Comments

EFF Fights Texas' Claims That Searching A Cell Phone Is No Different Than Searching 'A Pair Of Pants'

Privacy

from the caution:-pants-may-contain-internet-history dept

Fri, Apr 5th 2013 3:43am — Tim Cushing

Although the prevailing winds are now beginning to shift a little, it has been the opinion of many in law enforcement (and backed up by the courts) that they are welcome to search the contents of a detainee's cell phone without obtaining a warrant. The thought process seems to be that anything on that person (or in their immediate vicinity) is fair game.

The EFF has filed an amicus brief in the Texas Court of Criminal Appeals opposing this mentality in hopes of preventing the state's flawed logic from becoming legal precedent. The case the EFF is involved with began with a warrantless search of a teenager's cell phone while he was detained at a Texas county jail.

Teenager Anthony Granville was arrested at his high school for a misdemeanor and booked into the county jail. All of his belongings, including his cell phone, were taken from him and placed in the jail's property room while he was locked up. Three hours after his arrest, a different officer than the one who arrested Granville at the high school went into the property room and, without a search warrant, looked through Granville's phone in search of evidence connected to another, unrelated felony.

Fortunately (and correctly), the trial court suppressed the evidence "recovered" from Granville's phone, stating that the officer had time to obtain a warrant. It also pointed out the likely reason for the lack of a warrant -- namely, "no exigent circumstance" to justify searching for unrelated evidence on Granville's cell phone.

The state appealed, rationalizing the officer's actions using a couple of rather incredible claims, the second of which shows a complete (or willing) lack of comprehension as to how much information the average cell phone can contain.

The state appealed to the Texas Court of Appeals, arguing that Granville had no expectation of privacy in the contents of his cell phone while it was in the jailhouse, noting that looking through the phone was no different than looking at a person's clothes when they are booked into jail.

(I would imagine "looking at" means "searching" a person's clothes, rather than, say, admiring the stitching.)

The appeals court followed the trial court in shooting down the state's arguments, along with its generally terrible comparison.

The appellate court disagreed with the government's analogy, finding the amount of information stored on mobile devices make a cell phone search far more invasive than a search of clothing.

Despite the count being 0-2, state prosecutors show no willingness to stop swinging, bringing the case to the Texas Court of Criminal Appeals, where it will once again pit its lousy justification for Fourth Amendment violations against the EFF, the Texas Civil Rights Project and the ACLU of Texas.

The EFF's amicus brief shoots several holes into the state's "cell phone = pants" equation.

In our amicus brief we explain the government had no excuse for not obtaining a warrant before searching Granville's phone. A person doesn't surrender their expectation of privacy in the contents of their phone once the phone is in the hands of jail officials. Plus none of the exceptions to the search warrant requirement applied. This wasn't a search "incident to arrest "since it took place hours after Granville was arrested, when the phone was out of his control. And it wasn't an "inventory search" because once the phone itself was inventoried and secured by the police, there was no need to inventory the data on the phone. Plus, an inventory search can't be used as a pretext for a clearly investigatory search, which this certainly was.

Refining broad search policies and eliminating procedural gaps is a necessity as cell phones move further and further away from being simply portable phones. The amount of personal information contained on the average cell phone, along with the number of cloud-based services accessed through them, can make for a very rewarding fishing trip.

These days, searching a phone under the pretenses stated above isn't much different than an officer letting himself into a detainee's home and rooting around on the home computer. Between social networks and cloud services, much of what's "contained" in a cell phone is accessible from multiple points. Arguing that a cell phone is nothing more than a set of pants pockets is deliberately understating the reality in order to justify skirting the Fourth Amendment. Here's hoping the state goes 0-3.

Filed Under: 4th amendment, eff, mobile phones, searches, texas

Harvard Searched Email Subject Lines Of Faculty To Sniff Out Leak

from the why-people-keep-private-emails dept

Mon, Mar 11th 2013 4:13pm — Mike Masnick

We've written a few times about employers snooping through the emails of employees, and for the most part, courts have found this to be legal. There are a few exceptions -- such as for attorney/client communications -- but for the most part, if you're using work provided email, they can spy on it. Of course, just because they can doesn't mean they should. As we've been pointing out for over a decade, doing so probably fosters an environment of paranoia, which may not be the most productive. Still, it's a bit surprising to see that Harvard University chose to snoop through the emails of staff members in trying to hunt down the source of a leak. Specifically, the university searched the emails of 16 deans, telling them about the search a few days later. Again, even though this is likely legal, it seems odd that a university like Harvard would do it, as it inevitably creates distrust with some of its most important staffers. Indeed, the news apparently has faculty and staff up in arms.

Havard has defended the search by arguing it was very limited -- just to specific accounts and just to subject lines:

Consequently, with the approval of the Dean of FAS and the University General Counsel, and the support of the Dean of Harvard College, a very narrow, careful, and precise subject-line search was conducted by the University's IT Department. It was limited to the Administrative accounts for the Resident Deans — in other words, the accounts through which their official university business is conducted, as distinct from their individual Harvard email accounts. The search did not involve a review of email content; it was limited to a search of the subject line of the email that had been inappropriately forwarded. To be clear: No one's emails were opened and the contents of no one's emails were searched by human or machine. The subject-line search turned up two emails with the queried phrase, both from one sender. Even then, the emails were not opened, nor were they forwarded or otherwise shared with anyone in IT, the administration, or the board. Only a partial log of the 'metadata' — the name of the sender and the time the emails were sent — was returned.

"The Resident Dean whose account had been identified was asked about the incident and voluntarily reviewed his/her own sent items and confirmed that she/he had indeed forwarded the message to two students. Although the Resident Dean's actions violated the expectations of confidentiality surrounding the Administrative Board process, those involved in the review and the conversation with the individual were sufficiently convinced that it was an inadvertent error and not an intentional breach. The judgment was made not to take further action.

The issue, though, is the expectation of privacy and the level of trust built up between staffers and the university -- and actions like this, even when done narrowly and carefully, can break down that trust in significant ways.

Filed Under: email, harvard, privacy, searches, trust
Companies: harvard

13 Comments

Do You Live In The Constitution-Free Zone Of The US?

Privacy

from the 2/3rds-of-americans-do dept

Tue, Feb 12th 2013 12:47pm — Mike Masnick

Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border. The latest bit of news was that an internal review found that there was minimal benefits to one's civil liberties in not searching their laptops, so it was okay (think about that sentence for a bit).

The 100 mile "buffer zone" part of that story gets most of the attention, but it isn't a new thing. They've been claiming that for a while. It's just that this is yet another attempt by them to give themselves additional support for those kinds of searches. In our comments, someone pointed us to a useful (and horrifying) map that the ACLU put together highlighting just how much of our country is within 100 miles of border/coastline, creating the Constitution-Free Zone Map -- which happens to cover about 2/3 of all American citizens.

Click through for the ACLU's interactive version. This isn't a new map, and, no one is claiming that these regions don't have any Constitutional protections, but it does effectively make the point of just how incredibly ridiculous it is for them to make these claims when it comes to laptop searches, which were already questionable enough at the border, let alone 100 miles into the country.

Filed Under: 4th amendment, constitution, privacy, searches
Companies: aclu

216 Comments

US Mainstream Media Refuses Op-Ed About TSA Eroding Civil Liberties... But Pravda Publishes It

Failures

from the sad-statement dept

Thu, Dec 29th 2011 8:39am — Mike Masnick

A few months ago, we wrote about how a TSA agent who was involved in an intrusive "pat down" of Amy Alkon threatened her with a defamation claim for daring to say and write that she felt she was raped by the TSA agent. Recently Alkon sought to publish an op-ed about her experience and the importance of standing up for one's civil rights in America. As she notes, pretty much all of the American mainstream media refused to publish the piece:

Media outlets that refused to publish this piece include the LA Times, The New York Times, Reuters, CNN, The Huffington Post, The Wall Street Journal, Yahoo.com, MSNBC.com, and The Washington Post.

You know who did publish it? Pravda. Yes, the rather infamous Russian publication.

The TSA's main accomplishment seems to be obedience training for the American public -- priming us to be docile (and even polite) when ordered to give up our civil liberties. Not only does the TSA violate our Fourth Amendment rights, they've posted signs that effectively eradicate our First Amendment right to speak out about it. One such sign, in Denver International Airport, offers the vague warning that "verbal abuse" of agents will "not be tolerated." Travelers are left to wonder whether it's "verbal abuse" to inform the TSA agent with his latex-gloved hands on their testicles that this isn't making us safer, or are they only in trouble if they pepper their statement with obscenities? Not surprisingly, few seem willing to speak out and risk arrest.

Whether or not you agree with Alkon's point, it seems bizarre that the big American media wouldn't even let her speak her mind on the subject...

Filed Under: amy alkon, civil liberties, media, searches, tsa

57 Comments

TSA Continues To Embarass The Elderly With Unnecessarily Degrading Search Procedures

Privacy

from the why-grandma-and-grandpa-don't-fly dept

Mon, Dec 12th 2011 1:11pm — Mike Masnick

The TSA is, once again, defending its screening procedures after reports came out of degrading and embarrassing searches performed on three different elderly passengers at JFK, each of which involved passengers with medical equipment that it appears the TSA did not know how to handle in a reasonable way. While the TSA emphasizes that it didn't do a "strip search" on any of the passengers, that seems to ignore the point that, in all three cases, the searches appeared to be highly inappropriate. An MSNBC story about all of this summarizes the three passengers' complaints:

In one case, Lenore Zimmerman, 85, of Long Beach, N.Y., said TSA agents took her into a private room in late November to remove her back brace for screening after she decided against going through a scanning machine because of her heart defibrillator.

"Zimmerman said she had to raise her blouse and remove her undergarments for a female TSA agent," said Schumer and Gianaris' letter.

[....]

In another recent incident, Ruth Sherman, 88, of Sunrise, Fla., was asked about a visible protrusion from her waist band, which she identified as her colostomy bag.

She was "escorted to another room where two female agents made her lower her pants for an inspection. Sherman raised concerns that the agents would disrupt her colostomy bag, causing pain and potential damage," the letter said.

A third woman, Linda Kallish, of Boynton, Fla., said that after she revealed she was a diabetic with an insulin pump in her leg, she was escorted to a separate room where she was told to remove her pants so the agents could check the pump, the letter said, without saying when that incident took place.

The letter discussed above came from Senators Chuck Schumer and Michael Gianaris, asking the TSA to have an "on-site passenger advocate." It seems like that would certainly make some amount of sense, though I imagine getting rid of security theater would be a better solution. But, in absence of that, having someone in authority who actually has the passengers' interest in mind seems like it could be useful.

Even more bizarre, however, is that while the TSA admits that its agents were at fault in the first case above, and should not have removed the brace, it still seems to recommend that passengers be the ones to bone up on the rules:

We recommend that all passengers familiarize themselves with security protocols and inform officers prior to screening if they have medical devices that require special screening. It makes things easier for everybody if all parties know in advance what to expect.

Yes, JFK personnel are receiving additional training as well, but should traveling by plane really require individuals to study up on what inhumane and degrading treatment they should expect before hitting the airport?

Filed Under: elderly, jfk, privacy, searches, tsa

47 Comments

TSA Decides Terrorists Must Be Driving; Partners With Tenn. Law Enforcement To Randomly Search Vehicles

Privacy

from the the-United-States:-now-with-more-acronyms-than-rights! dept

Fri, Oct 21st 2011 8:01am — Tim Cushing

Pitabred sends in the distressing but completely unsurprising news that the TSA, with the cooperation of the Tennessee Department of Safety and Homeland Security, is now trolling for terrorists on the open highway.

The Tennessee Department of Safety and Homeland Security on Tuesday partnered with the U.S. Department of Homeland Security's Transportation Security Administration (TSA) and several other federal and state agencies for a safety enforcement and awareness operation on Tennessee's interstates and two metropolitan-area bus stations.

But this was no ordinary random search of vehicles. This one had its own acronym:

The agencies conducted a Visible Intermodal Prevention and Response (VIPR) operation at scale complexes where trucks and large vehicles are weighed. The VIPR operation was also conducted at two regional bus terminals in Nashville and Knoxville.

As awesomely G.I. Joe-ish as VIPR sounds, one would think that random searches of vehicles might run afoul of the Fourth Amendment. The word from above is: Don't worry about it. You're probably just thinking too much. Highway patrol Colonel Tracy Trott offers some much needed perspective:

The random inspections really aren't any more thorough [than?] normal, according to Tennessee Highway Patrol Colonel Tracy Trott who says paying attention to details can make a difference. Trott pointed out it was an Oklahoma state trooper who stopped Timothy McVeigh for not having a license plate after the Oklahoma City bombing in the early 1990s.

Question, the first: If these inspections aren't any more thorough than "normal," why the extra personnel and additional super-cool acronym?

Question, the second: An anecdote about catching someone after they've already performed an act of terrorism is hardly comforting.

Still not convinced that there's a whole lot of "nothing to see here" contained within this new operation? More empty statements are available to wave away your concerns:

Larry Godwin, deputy commissioner of TDSHS, said the checks at the weigh stations were about showing the people of Tennessee the government is serious about transportation safety, and to make sure the state is ready in case something were to happen.

I'm not going to speak for anybody else, but I find that the increased presence of law enforcement and various geared-up ancillaries rarely makes me feel "safer." Usually a swarm of drug/bomb sniffing dogs and SWAT-team members leads me to believe that either a.) something bad has happened or b.) something bad is going to happen. While I would agree that this sight would make me believe that the government is indeed "serious" about something, it does very little to convince me that it is "ready" for anything.

If you (like me) are still feeling a bit less than safe (and perhaps, more likely to be randomly searched), take heart! Your fellow citizens are being recruited to turn you in, should you happen to do something perceived as "suspicious," most likely at a high rate of speed.

Agents are recruiting truck drivers, like Rudy Gonzales, into the First Observer Highway Security Program to say something if they see something.

"Not only truck drivers, but cars, everybody should be aware of what's going on, on the road," said Gonzales.
It's all meant to urge every driver to call authorities if they see something suspicious.

"Somebody sees something somewhere and we want them to be responsible citizens, report that and let us work it through our processes to abet the concern that they had when they saw something suspicious," said Paul Armes, TSA Federal Security Director for Nashville International Airport.

While I'm fairly sure that's either a misquote or just a miswording by Armes, the idea that the TSA might "abet" (aid, encourage, incite, foster, promote) concerns seems very plausible. After all, without the vague threat of terrorist activity, where would they be? (Look under your vehicle.)

Let's briefly review the Fourth Amendment and see how this new effort checks down:

The Fourth Amendment... guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.

Reasonable search? Probable cause?

Tuesday's statewide "VIPR" operation isn't in response to any particular threat, according to officials.

Ah. Well, with the TSA moving onto the highway (having already made its presence known in bus stations and subways), it's presumably only a matter of time before it decides that terrorists have been chased out of the skies and off the road by its efforts, and at that point, there's really only one place left to look for potential troublemakers.

Filed Under: highways, privacy, searches, tennessee, tsa, vipr

135 Comments

Hint: If You Commit A Crime, Do Not Google Every Aspect Of It Afterwards

(Mis)Uses of Technology

from the isn't-this-obvious? dept

Thu, Oct 20th 2011 1:33pm — Glyn Moody

Techdirt has reported on a number people accused of murder googling for things like "neck snap break" or "how to commit murder" beforehand, and leaving these suggestive details on their computers. Those were some years back, and since then there has been plenty of attention given to the idea that your search histories provide a great deal of information about what you were thinking - and possibly even what you were thinking about doing.

So you would expect people by now would have learned to be a little more cautious � for example, by carrying out searches anonymously at different Internet cafes. But the story of Vincent Tabak, whose case is currently going through UK courts, suggests that message still hasn't got across. The court has been hearing about his intensive use of the Internet to research a range of topics after killing a woman called Joanna Yeates (he admits manslaughter, but denies murder):

The 33-year-old defendant ... looked up satellite imagery of the site where he dumped Yeates's body. He researched the Wikipedia page for murder and maximum sentence for manslaughter, web records from work and personal laptops showed.

While regularly checking the Avon and Somerset police website and local news site www.thisisbristol.co.uk, the Dutch engineer was also checking decomposition rates.

Days after killing Yeates at her Clifton flat on 17 December, Tabak was watching a timelapse video of a body decomposing, Bristol crown court heard.

That's a reminder of just how much detailed information about past Internet activity can be gleaned from computers, and how incriminating that might be in certain circumstances. On the other hand, perhaps we should be grateful that people committing crimes are still making it so easy to convict them on the basis of their tell-tale online activity.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: crime, evidence, searches

30 Comments

CA Governor Lets Police Search Your Smartphones At Traffic Stops

Privacy

from the shameful dept

Tue, Oct 11th 2011 6:58am — Mike Masnick

While it had been rumored it's unfortunately now confirmed that California governor Jerry Brown has sold out your privacy to law enforcement. After a bad court ruling gave law enforcement the ability to search your mobile phone during a traffic stop, the California legislature realized the ridiculousness of the situation and passed the bill requiring a warrant pretty quickly.

But, unfortunately, despite widespread support for it, Governor Brown has vetoed the bill, meaning that your mobile phones are fair game for searches without a warrant. Not only that, but he couldn't even make a statement to stand up for what he believes in about this, apparently only arguing that he vetoed the bill because "the issue is too complicated for him to make a decision about" and that it's better for the courts to decide.

Governor Brown knows better than this and he's being intentionally misleading. The courts are supposed to interpret the will of the legislature and make sure it's in line with the Constitution. Here, the legislature is clearly saying that it thinks such searches need a warrant. Leaving it for "the courts" to resolve is punting, and failing to take a stand for basic privacy rights. It's a weak move.

Filed Under: 4th amendment, california, jerry brown, mobile phones, privacy, searches

98 Comments

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NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment

from the legal-loopholes dept

NY Times Reveals NSA Searches All Emails In & Out Of The US; Will It Offer Up Its Source For Prosecution?

from the just-wondering dept

EFF Fights Texas' Claims That Searching A Cell Phone Is No Different Than Searching 'A Pair Of Pants'

from the caution:-pants-may-contain-internet-history dept

Harvard Searched Email Subject Lines Of Faculty To Sniff Out Leak

from the why-people-keep-private-emails dept

Do You Live In The Constitution-Free Zone Of The US?

from the 2/3rds-of-americans-do dept

US Mainstream Media Refuses Op-Ed About TSA Eroding Civil Liberties... But Pravda Publishes It

from the sad-statement dept

TSA Continues To Embarass The Elderly With Unnecessarily Degrading Search Procedures

from the why-grandma-and-grandpa-don't-fly dept

TSA Decides Terrorists Must Be Driving; Partners With Tenn. Law Enforcement To Randomly Search Vehicles

from the the-United-States:-now-with-more-acronyms-than-rights! dept

Hint: If You Commit A Crime, Do Not Google Every Aspect Of It Afterwards

from the isn't-this-obvious? dept

CA Governor Lets Police Search Your Smartphones At Traffic Stops

from the shameful dept

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