DOJ Investigates Law Enforcement Agencies All Over The Nation But Can't Be Bothered To Police Itself

from the backyard-due-to-be-condemned-for-lack-of-upkeep dept

The Justice Department will be investigating the Ferguson PD in the wake of an unarmed citizen's shooting by Officer Darren Wilson. Already, news has surfaced that the police force has a history of discriminatory actions and a problem with deploying excessive force. But should we even trust the DOJ to do this? If the DOJ is going to police the nation's police, then it should be holding its own agencies and employees to the highest standards. But it doesn't. It doesn't even come close.

Documents obtained by McClatchy News Service [pdf link] reveal incident after incident of misconduct uncovered by the Office of the Inspector General. They range from the merely questionable to the wholly unacceptable, but one thread holds them all together: a nearly complete lack of accountability.

The records, which cover the period from January 2010 to March 2014, detail some 80 cases, only a few of which appear to have been previously made public.

The accused officials work for agencies that include the Drug Enforcement Administration, the U.S. Marshals Service and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In at least 27 cases, the inspector general identified evidence of possible criminal wrongdoing but no one was prosecuted.

[...]

According to the most recent report by the office, the Justice Department’s inspector general received nearly 5,900 allegations of misconduct, opened 195 investigations and was involved in 32 arrests and 38 convictions from October through March.

Cases referred to the IG involved anything from inappropriate relationships to murder-for-hire. An assistant US attorney general was accused of withholding information about her husband's embezzlement from investigators. Another federal prosecutor recused herself from a case when it was revealed she had a "personal relationship" with the investigation's target. This same prosecutor also divulged sensitive information about the case to her husband -- who subsequently passed this information along to the target.

Gifts and paid trips were accepted by employees in violation of agency ethics policies. An FBI agent used his government-issued Blackberry to pursue relationships with 17 different women. Another FBI agent misused agency resources to participate in three extramarital affairs. An ATF official worked for Morgan Stanley while on paid leave from the agency. The DHS, ATF and FBI are all called out for engaging in retaliatory behavior against protected whistleblowers.

On and on it goes for 42 pages. Bureau of Prison personnel stole or misused government-purchased equipment. Ethical standards violated. Investigations interfered with. Abuse of position to get out of traffic tickets or obtain goods, services… even surveillance tapes from a private business.

In the end, though, only a few cases were recommended for prosecution. In many cases, the employees retired ahead of pending punishments. In others, employees received nothing more than "oral admonishments."

And then there's this complete bullshit:

Sometimes, alleged misconduct by prosecutors and investigators might be handled less aggressively because of concern that it would taint criminal cases, [former Dept. of Interior Inspector General Earl] Devaney said. At trial, defense attorneys are permitted to learn of serious misconduct of the agents and prosecutors involved in their cases.

There's that infamous criminal justice system again. In order to avoid "losses," government agencies are burying misconduct allegations or issuing "oral admonishments" to avoid leaving damning paper trails that might call the integrity of their prosecutors and investigators into question. To sum up: the government would rather prosecute a citizen than hold one of its own fully accountable.

When the DOJ starts looking into Ferguson, it had better hope the PD doesn't just hold up a mirror and dare it to meet its own gaze.

Filed Under: doj, fbi, inspector general, law enforcement

DOJ Inspector General Says FBI Actively Preventing Him From Doing His Job

from the no-accountability dept

Rogue agency? The FBI seems to fit the description:

The Justice Department's inspector general said Tuesday that his staff is routinely blocked from getting access to documents it needs for audits and reviews of the department and its law enforcement agencies…

In the last few years, the FBI has denied access to records that should be provided under federal law, including grand jury materials, an organizational chart and electronic surveillance information, [Inspector General Michael] Horowitz testified.

Yeah. Not even an organizational chart. The FBI, which can't seem to decide whether it likes law enforcement or counterterrorism better, won't even hand over that info. It's incredibly hard to investigate an agency that stonewalls its superiors with as much fervor as it does FOIA requesters.

As it stands now, the FBI routes the Inspector General through its legal counsel. Then a whole lot of nothing happens until the Attorney General's office gets involved and demands the release of information. This stonewalling goes on for years.

He said the refusal to grant routine requests stalls investigations, including a recent one on FBI material witnesses, such that officials who are under review have sometimes retired or left the agencies before the report is complete.

It's another one-way street of information by a government agency. FOIA requesters and the DOJ's Inspector General get nothing. The FBI gets everything it demands, via subpoenas, FISA court orders and National Security Letters. In addition, the FBI actively interjects itself into state-level FOI requests, ordering local law enforcement agencies to withhold information on cell tower spoofers and other "sensitive" equipment -- even going so far as to help them with parallel construction.

There's nothing defensible here. The Inspector General should be able to see whatever it asks for. Anything deemed sensitive can be redacted from the eventual report. But handling requests for information the way the FBI does insulates it from accountability -- an essential element of its "bargain" with the public. Everything it has -- from its power to its budget -- derives from the people. And in return, the people are getting nothing back, even those at the supposed top of the accountability chain.

The Attorney General needs to rein the agency in, rather than intercede only when asked to by the OIG. There's obviously a problem here but it appears those with the actual power to fix it are simply letting the agency slide. The FBI -- especially in its new counterterrorism capacity -- has too much power to be allowed this much leeway.

Filed Under: doj, fbi, inspector general, investigations

DOJ Says No NSA Help Was Needed To Find Dread Pirate Roberts Since He Misconfigured His CAPTCHAs

from the oops dept

The lawyers for Ross Ulbricht have been tossing an awful lot of speculative legal theories at the legal wall in his defense in the past few months, and none of them seem to be sticking. The most recent attempt was to argue that the process by which the DOJ/FBI got access to Silk Road's servers must have violated the 4th Amendment, mainly because it was "hidden" via Tor, and Ulbricht couldn't figure out how else the FBI tracked down the servers. In response, the DOJ has revealed the details of how it tracked down the servers via a very readable court filing where you can almost feel the snark dripping from the US Attorneys' Office, as they mock both the speculative and hyperbolic nature of the claims, and reveal that Ulbricht basically misconfigured his CAPTCHA login feature to leak the IP address.

Contrary to Ulbricht’s conjecture that the server hosting the Silk Road website (the “SR Server”) was located by the NSA, the server was in fact located by the FBI New York Field Office in or about June 2013.... The Internet protocol (“IP”) address of the SR Server (the “Subject IP Address”) was “leaking” from the site due to an apparent misconfiguration of the user login interface by the site administrator – i.e., Ulbricht.... FBI agents noticed the leak upon reviewing the data sent back by the Silk Road website when they logged on or attempted to log on as users of the site.... A close examination of the headers in this data revealed a certain IP address not associated with the Tor network (the “Subject IP Address”) as the source of some of the data.... FBI personnel entered the Subject IP Address directly into an ordinary (non-Tor) web browser, and it brought up a screen associated with the Silk Road login interface, confirming that the IP address belonged to the SR Server....

Based on publicly available information, the Subject IP Address was associated with a server housed at a data center operated by a foreign server-hosting company in Iceland.... Accordingly, on June 12, 2013, the United States issued a request to Iceland for Icelandic authorities to take certain investigative measures with respect to the server, including collecting routing information for communications sent to and from the server, and covertly imaging the contents of the server.... The Reykjavik Metropolitan Police (“RMP”) provided routing information for the server soon thereafter, which showed a high volume of Tor traffic flowing to the server – further confirming that it was hosting a large website on Tor.... Subsequently, after obtaining the legal process required under Icelandic law to search the server, and after consulting with U.S. authorities concerning the timing of the search, the RMP covertly imaged the server and shared the results with the FBI on or about July 29, 2013.... Forensic examination of the image by the FBI immediately and fully confirmed that the server was in fact hosting the Silk Road website, i.e., that it was in fact the SR Server.... The server contained what were clearly the contents of the Silk Road website – including databases of vendor postings, transaction records, private messages between users, and other data reflecting user activity – as well as the computer code used to operate the website.

Later, the filing points out:

It does not matter that Ulbricht intended to conceal the IP address of the SR Server from public view. He failed to do so competently, and as a result the IP address was transmitted to another party – which turned out to be the FBI – who could lawfully take notice of it.

While the DOJ's story is compelling (and while I'm sure some will still insist "parallel construction," it seems like there would need to be a lot more evidence of that happening), there are some other interesting tidbits in the filing. Ulbricht had argued that the search of the server was unconsitutional because his property was searched without a warrant. However, the DOJ points out that since the server was in Iceland, the 4th Amendment doesn't apply. But in defending the lack of a warrant, it's interesting that the DOJ admits that under the Stored Communications Act, a "warrant was not even an option... given that the SR Server was controlled by a foreign data center."

That seems to contradict the DOJ's claims in its ongoing fight with Microsoft over accessing emails stored in Ireland. There, the DOJ insists that a warrant under the SCA is not only very much an option, but that it requires Microsoft to hand over the data. The DOJ says the cases are different since Microsoft is a US entity, and thus the SCA compels the US entity to reveal data no matter where it is, but that doesn't apply since the Silk Road server was controlled by an Icelandic company.

There remain some interesting legal questions raised by the prosecution against Ulbricht, but so far, the extremely speculative nature of his defense doesn't seem particularly likely to get anywhere. Also, the leaky CAPTCHA should serve as a reminder that, despite all the freakouts and concerns from law enforcement about how the internet and things like Tor will make it impossible to catch criminals, people will almost always mess up somehow and reveal breadcrumbs back to who they are.

Filed Under: 4th amendment, doj, dread pirate roberts, fbi, investigation, nsa, ross ulbricht
Companies: silk road

When Can The FBI Use National Security Letters To Go After Journalists? Why, That's Classified!

from the because-of-course-it-is dept

Two weeks ago, the DOJ Inspector General released a report on the FBI's use of National Security Letters (NSLs)—the controversial (and unconstitutional) surveillance instruments used to gather personal information of Americans without any prior oversight from a judge. In a little-noticed passage buried in the report, the IG describes how NSLs have been used on journalists in the past, and indicates that the FBI can currently circumvent the Justice Department's media guidelines to do so in the future.

When and precisely how can they do so? Well, apparently that's classified.

First, some background: In July, after a torrent of criticism that the Justice Department (DOJ) was targeting reporters in the wake of the Associated Press and Fox News scandals, Attorney General Eric Holder issued new guidelines for DOJ that tightened the rules for when they could secretly obtain records from reporters. Notably, the guidelines excluded National Security Letters.

This is critical because past IG reports, as well as the new one, have harshly criticized the FBI for circumventing the old media guidelines and using NSLs to gain access to reporters' records on at least three occasions. Earlier this year Pulitzer Prize winner Barton Gellman revealed his telephone records had once been targeted by an NSL.

As the New York Times reported when the new guidelines were issued in July:

There is no change to how the F.B.I. may obtain reporters' calling records via "national security letters," which are exempt from the regular guidelines. A Justice spokesman said the device is "subject to an extensive oversight regime."

What is the "extensive oversight regime"? The IG report discusses it, but the FBI has brazenly redacted the whole thing. From page 178 of the new report:

The above passage is referencing the FBI's response to the IG's criticism of a leak investigation in which a journalist's telephone records were accessed with an NSL. 28 C.F.R. § 50.10 refers to the media guidelines. Reading between the redactions, it seems that Attorney General approval may required in some classified circumstances but not in others. The FBI thinks those circumstances should be secret.

Worse, it seems the FBI has so far ignored another IG recommendation regarding the use of NSLs against reporters. From page 192 of the report:

Unfortunately, the redactions in this section make it nearly unintelligible, but it's clear from the reference to the DOJ's media guidelines in the second paragraph that they are writing about leak investigations and journalists.

It should be noted from the very first footnote of the 196-page report that the IG strongly objected to many of the redactions within the report, including both information that was made public in previous reports and information they "believe is important to the public's understanding of the FBI's compliance with NSL requirements."

And that's the crux of the issue: how can the public be expected to have confidence in a so-called "extensive oversight regime", without any transparency or inkling of what it is? All too often the government has expected us to trust that such authorities are not being abused, while their own investigations continually uncover problems with compliance.

Beyond the fact that the whole NSL statute was ruled unconstitutional last year (the ruling is on hold pending appeal), journalists—at the bare minimum—deserve to know when the FBI thinks it can secretly conduct surveillance on them without court approval. As the IG states, this has significant First Amendment implications and it's a travesty that the FBI continues to keep their policies for spying on the press a secret.

Reposted from Freedom of the Press Foundation

Filed Under: classified, doj, fbi, journalists, national security letters, nsls

FISA Court Twists PATRIOT Act To Pretend It's Okay To Spy On Americans Based On Their Constitutionally Protected Speech

from the that's-a-problem dept

We've written before about how it appears that the DOJ/FBI and NSA have conducted surveillance on Americans almost entirely based on First Amendment-protected activities. Whenever that issue comes up, the Intelligence Community and its defenders insist no way, that they take the prohibition on surveillance over First Amendment protected activities seriously. Section 215 of the Patriot Act is rather explicit:

the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Seems clear, right? But, of course, what seems clear in the statute and how the intelligence community and the rubber-stamping FISA Court will view things often seem to differ by a wide margin. The FISA court has now released yet another heavily redacted opinion, given by Judge John Bates, concerning just such a request. You may recall Judge John Bates from his recent letters in which he pretends to represent the entire judiciary, in fighting back against any attempt to limit the NSA and the FISA Court's ability to spy on American people. Bates seems absolutely sure that doing so will let the terrorists win, which gives you a glimpse into his mindset.

Thus, while depressing, it shouldn't be too surprising to find out that when a Section 215 request came to him concerning activity of a US person that was entirely protected by the First Amendment, Bates figured out a way to give the FBI the go ahead to spy on the person anyway. Because terrorism.

While heavily redacted, it seems clear that Judge Bates admits that the nameless person the FBI wishes to spy on didn't do anything that went outside of First Amendment protected speech: Okay then, so all of the activities of this US person are clearly protected under the First Amendment. The law is pretty clear that the FISA Court then cannot grant the power to collect that individual's records. But... Judge Bates is deathly afraid of terrorism, so surely there must be a way to massage things to come up with a reason why it's okay, despite what the law clearly says. So Bates comes up with a neat little trick. He says, sure, the person of interest may only be engaged in protected speech, but some other guy (a non-American, and thus not protected by the First Amendment) is engaged in non-protected speech, and because of the actions of that other guy, the FISA Court will grant the ability for the FBI to slurp up the American's records and data. Because of the redactions, this part is a little more difficult to parse, but it's pretty clearly saying that even though the US person who is the subject of this surveillance request did nothing other than Constitutionally protected speech, because some other person who is not in the US and not directly associated with the party in question, has some evidence of terrorist activity, that makes it okay to spy on the US person.

As law professor Jennifer Granick notes in the link above, this is an extremely troubling interpretation of Section 215, basically allowing the FISA Court to ignore the prohibition on spying on people because of their Constitutionally protected speech, so long as it's somehow a part of a larger terrorism investigation.

The statute prohibits the FBI from investigating law abiding Americans unless their own conduct fell outside of the First Amendment, regardless of the conduct of other people related to the investigation. I think most people, when they cite that statutory language, believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do.

They would be wrong. Judge Bates’ alternate interpretation allows for Americans exercising only constitutional protected rights to nevertheless be investigated under section 215 so long as there’s an independent, constitutionally unprotected basis for the overarching terrorism investigation.

The takeaway is, Americans are being investigated for their First Amendment protected activity, so long as someone’s else’s related conduct is not protected, even where the relationship between the American and the other party is too attenuated to support suspicion of aiding and abetting or conspiracy.

That is an immensely troubling interpretation of the law, one that appears to run counter to the plain wording of the law, as well as the basic concept of both the First and Fourth Amendments of the Constitution. No freaking wonder Judge Bates has been so adamant against having any sort of civil liberties advocate reviewing and challenging his decisions within the FISC.

Filed Under: doj, fbi, first amendment, fisa court, fisc, free speech, john bates, nsa, patriot act, section 215, surveillance, terrorism

Washington Law Enforcement Hides Stingray Purchase And Use From Everyone, But It's OK Because They're Fighting Crime

from the outraged-at-the-lack-of-outrage dept

More news of secret surveillance has been uncovered, thanks to FOIA requests. Police in Tacoma, Washington have a Stingray device and have been using it, unbeknownst to pretty much everyone in the area. And it's not just a recent development. According to information obtained by The News Tribune, this dates back more than a half-decade.

Deputy City Attorney Michael Smith redacted much of the identifying information on a May 2013 invoice for the equipment, saying disclosure “would allow the identification of confidential pieces of technology.”

However, unredacted portions of those public records as well as other documents reviewed by The News Tribune indicate the Police Department has had the ability to wirelessly search neighborhoods since as early as 2008.

So, why is this information just coming out now? For one, law enforcement hasn't been particularly forthcoming. Harris has its own restrictive non-disclosure agreements to keep mouths shut, but the factor specifically cited in this article is the federal government.

Police Chief Don Ramsdell, through a spokeswoman, declined an interview request to talk about the police department’s apparent purchase of a Stingray device and associated technology. The department cited a nondisclosure agreement it has with the FBI.

So, the FBI -- a federal agency -- helped ensure that no one involved with the oversight of law enforcement and its new toys had any idea what was going on.

The people who could have provided some sort of accountability completely failed. Read this sentence and remember that these are people elected to look out for the public's interests.

News that the city was using the surveillance equipment surprised City Council members, who approved an update for a device last year…

Terrible, although some of this can be blamed on the lack of openness within law enforcement. Now, read the second half of that sentence and marvel at the undermining of the criminal justice system.

…and prosecutors, defense attorneys and even judges, who in court deal with evidence gathered using the surveillance equipment.

No one knew. No one. Prosecutors didn't know how the evidence they were using was being obtained and defense attorneys couldn't effectively challenge evidence because its origin was obscured. And if judges don't know, then it means local law enforcement lied about how they were obtaining data, either through parallel construction or simply assuming the gathering of "business records" requires no warrant.

Now that they're informed, the statements they're making are disturbing in their abject cluelessness.

“If they use it wisely and within limits, that’s one thing,” said Ronald Culpepper, the presiding judge of Pierce County Superior Court, when informed of the device Tuesday. “I would certainly personally have some concerns about just sweeping up information from non-involved and innocent parties — and to do it with a whole neighborhood? That’s concerning.”

"Concerning?" "Sweeping up information" is the only way these devices work. They can't target anything because they're not designed to. This isn't like bugging a phone. This is grabbing every record generated and searching it later for what's actually of interest. And Culpepper's "personal concerns" are also those of the public, so he'd better keep that in mind when dealing with this device in the future, rather than placing the "concerns" of law enforcement ahead of his and everyone else's.

Worse yet are the comments of city representatives, who think it's OK for the police to have a device that indiscriminately grabs connection information (and a device that they lied about) because they're the police.

City Manager T.C. Broadnax:

“I’m not in law enforcement, but it’s my impression that it assists them in doing their job more effectively, and that’s to protect the public.”

Mayor Marilyn Strickland:

“If our law enforcement need access to information to prevent crime or keep us safe, that’s a legitimate use of the technology,” she said. “We are more focused on preventing crime and keeping our community safe than getting in people’s business.”

[That "we" is supposed to be you and the public, not you and the police force.]

Councilman David Boe:

“I’ve got to find out what I voted on before I comment.”

[Why bother now?]

Another city council member conceded he was never given details on the purchase he was approving, but that it "doesn't surprise him" that law enforcement has this type of device. The cover-up was OK because it keeps investigations from being compromised. Another council member said she would need to "check with the city manager" before commenting, so we can probably just copy and paste Broadnax's "police fight crime" head nod from above.

But some of these representatives must have known. The public records trail (obtained by MuckRock) shows a memo from 2007 seeking to bypass the competitive bidding process. After the first Stingray was obtained in 2008, the city named Detective Jeffrey Shipp "Employee of the Month," citing this:

“for his work in procuring a $450,000 training and equipment grant for a cellular phone tracking system — one of only five awarded across the country. Great job!”

This money was mostly a DHS grant, and law enforcement cited the technology's usefulness to its "Explosive Ordinance Detail" as the primary reason for the acquisition. No document details how many explosive devices were detected or disarmed using the cell phone tracker. Unsurprising, considering it's being used to track drug dealers and other "normal" criminal activity.

What is also uncovered in the documents is some indication of how the Stingray's use is being concealed. Multiple warrants have been issued for cellphone records, none of which apparently refer to them being collected by a cell tower spoofer. It also looks as if pen register/trap and trace orders are being used as permission slips for dragnet collections. In both cases, law enforcement is using targeted paperwork for untargeted collections. But prosecutor Mark Lindquist says that even though he knew nothing about the device or its usage, everyone's still playing by the rules.

Prosecutors have to be able to defend evidence in court, he said. As far as he knows, local law enforcement is “playing by the rules.”

“None of this evidence has been successfully challenged by the defense, and from that, I can infer that law enforcement is doing it right,” he said. “Both prosecutors and defense attorneys will review warrants and make sure that they are valid.”

That's how you can quantify the "rightness" of evidence obtained through parallel construction? No evidence has been "successfully challenged" by the defense? That's so stupid it must be a misquote. How can you successfully challenge evidence if the paper telling you how it was obtained obscures the true source? In Lindquist's eyes, dealing evidence from the bottom of the deck is "playing by the rules."

And the police haven't been forthcoming about the disposal of incidental data. If the device has been used secretly for a half-dozen years, and everyone in an oversight position is claiming to have just heard about it now, there's very likely no minimization guidelines or policies. There are hints that irrelevant data is deleted, but there's nothing in here that says how long its retained before this happens… if it happens.

So, law enforcement buys cell tower spoofers and the FBI encourages them to hide the details. It attempts to obscure it behind some sort of counterterrorism facade (for thwarting IEDs, remember?), gaining it kudos from the city for all the money it managed to talk the DHS out of. It then hides the use from the entirety of the criminal justice system and makes its oversight bodies look like complete fools. And we're supposed to trust them not to abuse the incidental data they collect?

Filed Under: 4th amendment, fbi, oversight, police, privacy, searches, stingray, tacoma, washington
Companies: harris

Champion Of The People: Verizon Complains Exigent Circumstances Order Inadequate For Info Requested; Hands Over Info Anyway

from the rolling-over-to-push-back dept

Given how often major telcos and wireless service providers have willingly provided intelligence and law enforcement agencies with way more than they've asked for, the following shouldn't come as much of a surprise.

The back story is this: In July 2008, an FBI agent had his gun and cellphone stolen from his "official" vehicle. The search for the missing items involved Verizon. In an application for a court order authorizing the release of cell site location info, it's noted that the service provider performed the most futile of gestures on behalf of itself. (Link to PDF.)

As part of its ongoing investigation, and in a further attempt to locate THE LOADED SERVICE WEAPON, shortly after 4:00 a.m. on Friday, July 24, 2008, the FBI requested on an emergency basis that the Carrier disclose the SUBJECT TOWER/SECTOR and MSC RECORDS generate between Thursday, July 24 2008 at 2:00 p.m. and Friday, July 25, 2008 at 4:00 a.m. The FBI did so on the theory that THE LOADED SERVICE WEAPON might well be in the same location as SUBJECT WIRELESS TELEPHONE with which it had been reported stolen on Nostrand Avenue.

Along with this request, the FBI submitted a written "Law Enforcement Exigent Circumstances Consent Form" filled out by Agent Julian, to whom the SUBJECT WIRELESS TELEPHONE belonged, authorizing the Carrier, among other things, to disclose the SUBJECT AND MSC RECORDS generated between Thursday, July 24, 2008 at 2:00 p.m. and Friday, July 25, 2008 at 4:00 a.m.

Although the Carrier agreed to, and did, provide the requested SUBJECT AND MSC RECORDS to the FBI on an emergency basis in light of the exigent circumstances, the Carrier informed the FBI that the "Law Enforcement Exigent Circumstances Consent Form" submitted by Agent Julian provided insufficient authority to release the requested information, and directed the FBI to seek a subsequent court order authorizing the release of the information.

It's something of an anomaly to see a major carrier stand up to the government, but Verizon certainly chooses its battles very weirdly. To begin with, the phone in question belonged to the person making the request. (More likely belonged to the FBI but was issued to Agent Julian.) That it would attempt to deny a subscriber access to his own records is bizarre, especially considering its open sharing of data on millions of people with the NSA and countless law enforcement agencies -- all of whom use the Third Party Doctrine as an all-access pass to as much info as possible.

What makes this utterly ridiculous is the fact that Verizon handed over the information before complaining about the exigent circumstances order. As for why it asked that an official court order be acquired, one can only assume that news of the immunity granted by the 2008 FISA Amendments Act (enacted roughly two weeks earlier) hadn't reached these particular employees yet. In the unlikely event that Agent Julian brought a lawsuit against Verizon for revealing his cell site info to Agent Julian on the basis of an inadequate exigent circumstances request, the company would have been insulated.

And so, the court did order, with a straight face, that Verizon hand over the records it had already handed over, even though the request noted that these records had only allowed the FBI to recover the gun (and also noted that the FBI already had the info it was seeking). I's dotted and asses covered, everyone involved returned to the investigation already in progress, except for Verizon, which presumably filed the new paperwork demanding the information it had already turned over the FBI, with the old paperwork it had complied with, even though it belatedly felt that it probably shouldn't have.

The ultimate irony here is that Verizon will work harder to keep someone from accessing their own records than it will to prevent the government from accessing metadata from all of its subscribers.

Filed Under: exigent circumstances, fbi, privacy, requests
Companies: verizon

NSA Makes Metadata (Including Info On Americans) Available To Domestic Law Enforcement Via 'Google-Like' Search

from the easy-peasy dept

The latest report from The Intercept on documents obtained from Ed Snowden (and, yes, they make it clear that these are from Snowden, rather than the purported "second leaker") is about a "Google-like" search engine that the NSA built, called ICREACH, which lets the NSA share a massive trove (at least 850 billion) of "metadata" records not just with others in the NSA or CIA, but with domestic law enforcement and other government agencies including the FBI and the DEA. The database includes records collected via Executive Order 12333, which we recently noted a State Department official revealed as the main program via which the NSA collects its data (and which is not subject to oversight by Congress).

While data collected under 12333 is supposed to be "minimized" to ditch information on "US Persons" we've already noted how backdoor searches get around that. Further, as this report reminds everyone, while "minimized" the NSA still keeps the data, and if someone (say, the DEA or FBI) wants to dig deeper, they can "un-minimize" the data.

However, the documents make clear that it is not only data about foreigners’ communications that are available on the system. Alexander’s memo states that “many millions of…minimized communications metadata records” would be available through ICREACH, a reference to the process of “minimization,” whereby identifying information—such as part of a phone number or email address—is removed so it is not visible to the analyst. NSA documents define minimization as “specific procedures to minimize the acquisition and retention [of] information concerning unconsenting U.S. persons”—making it a near certainty that ICREACH gives analysts access to millions of records about Americans. The “minimized” information can still be retained under NSA rules for up to five years and “unmasked” at any point during that period if it is ever deemed necessary for an investigation.

In other words, there's a decent chance that the FBI and DEA can easily surf through these hundreds of billions of records, and "unmask" people if need be, and then make use of the infamous parallel construction to hide how they first decided to focus on a particular individual or group.

In practice, this could mean that a DEA agent identifies an individual he believes is involved in drug trafficking in the United States on the basis of information stored on ICREACH. The agent begins an investigation but pretends, in his records of the investigation, that the original tip did not come from the secret trove. Last year, Reuters first reported details of parallel construction based on NSA data, linking the practice to a unit known as the Special Operations Division, which Reuters said distributes tips from NSA intercepts and a DEA database known as DICE.

Tampa attorney James Felman, chair of the American Bar Association’s criminal justice section, told The Intercept that parallel construction is a “tremendously problematic” tactic because law enforcement agencies “must be honest with courts about where they are getting their information.” The ICREACH revelations, he said, “raise the question of whether parallel construction is present in more cases than we had thought. And if that’s true, it is deeply disturbing and disappointing.”

And yes, this is "just metadata" but as the Intercept report notes, the NSA's own notes relating to this project reveal just how valuable metadata can be, including noting that it "has been a contribution to virtually every successful rendition of suspects and often, the deciding factor."

An NSA memo noted that PROTON could identify people based on whether they behaved in a “similar manner to a specific target.” The memo also said the system “identifies correspondents in common with two or more targets, identifies potential new phone numbers when a target switches phones, and identifies networks of organizations based on communications within the group.” In July 2006, the NSA estimated that it was storing 149 billion phone records on PROTON.

According to the NSA documents, PROTON was used to track down “High Value Individuals” in the United States and Iraq, investigate front companies, and discover information about foreign government operatives. CRISSCROSS enabled major narcotics arrests and was integral to the CIA’s rendition program during the Bush Administration, which involved abducting terror suspects and flying them to secret “black site” prisons where they were brutally interrogated and sometimes tortured. One NSA document on the system, dated from July 2005, noted that the use of communications metadata “has been a contribution to virtually every successful rendition of suspects and often, the deciding factor.”

Remember Michael Hayden gleefully admitting that the US kills people based on metadata? Well, now it turns out that we "rendition" them on metadata as well. Oh, and contrary to earlier claims about how just a few NSA analysts could examine the metadata, it now looks like tons of other government agencies, including the FBI and DEA have pretty free license to scour the data as well.

Filed Under: dea, fbi, icreach, metadata, nsa, parallel construction, search engine

The FBI's Criminal Database Is Filling Up With Non-Criminals And No One In Law Enforcement Seems To Care

from the sabotaging-the-future-of-a-nation dept

America has long held the position as the world's foremost imprisoner of its own citizens. Around 2 million people are incarcerated in America, giving us nearly one-fourth of the world's total prison population. Spending any length of time in prison is a good way to destroy your future. But even if you never spend a day inside -- or even end up facing charges -- there's a good chance you'll still be facing a bleak future should you ever have the misfortune to be booked.

Over the past 20 years, authorities have made more than a quarter of a billion arrests, the Federal Bureau of Investigation estimates. As a result, the FBI currently has 77.7 million individuals on file in its master criminal database—or nearly one out of every three American adults.

Between 10,000 and 12,000 new names are added each day.

This master database is accessed by thousands of employers running pre-hire background checks, as well as by banks and landlords. One moment of stupidity, even if it never results in time served, could derail someone's life. Arrests are damaging, even if it's ultimately determined that no criminal activity occurred. How many thousands of people are being turned down for loans or rejected by landlords simply because a cop made up BS charges to arrest a photographer or deployed handcuffs instead of responsible crowd control?

When Precious Daniels learned that the Census Bureau was looking for temporary workers, she thought she would make an ideal candidate. The lifelong Detroit resident and veteran health-care worker knew the people in the community. She had studied psychology at a local college.

Days after she applied for the job in 2010, she received a letter indicating a routine background check had turned up a red flag.

In November of 2009, Ms. Daniels had participated in a protest against Blue Cross Blue Shield of Michigan as the health-care law was being debated. Arrested with others for disorderly conduct, she was released on $50 bail and the misdemeanor charge was subsequently dropped. Ms. Daniels didn't anticipate any further problems.

But her job application brought the matter back to life. For the application to proceed, the Census bureau informed her she would need to submit fingerprints and gave her 30 days to obtain court documents proving her case had been resolved without a conviction...

She didn't get the job.

This is one case out of thousands. Exacerbating law enforcement's enthusiasm for making meaningless arrests is the fact that no one involved in maintaining the criminal database is interested in making sure it only contains convicted criminals. Documentation of arrests aren't removed when charges are dismissed and information on cleared individuals is seldom forwarded to the FBI by local PDs.

And it's not as though false arrests are the exception to the rule. According to research done by the University of South Carolina, it's more of a coin toss -- 47% of respondents who were arrested were never convicted and 25% were never even charged.

This callous disregard for the falsely arrested places the burden on those harmed by law enforcement's wrongful actions to clear their names, which in our criminal justice system is an entirely uphill battle.

In October 2012, Jose Gabriel Hernandez was finishing up dinner at home when officers came to arrest him for sexually assaulting two young girls.

Turns out, it was a case of mistaken identity. In court documents, the prosecutor's office acknowledged that the "wrong Jose Hernandez" had been arrested and the charges were dropped.

Once the case was dismissed, Mr. Hernandez assumed authorities would set the record straight. Instead, he learned that the burden was on him to clear his record and that he would need a lawyer to seek a formal expungement.

"Needless to say, that hasn't happened yet," says Mr. Hernandez, who works as a contractor. Mr. Hernandez was held in the Bexar County jail on $150,000 bond. He didn't have the cash, so his wife borrowed money to pay a bail bondsman the nonrefundable sum of $22,500, or the 15% fee, he needed to put up. They are still repaying the loans.

Notably, there are no corresponding negative results for police who arrest the wrong person. It's always an "honest mistake" even when nearly half of their arrests never result in convictions. It's the citizens who need to spend their time and money (which, given the economic background of those most likely to be arrested, are generally commodities in short supply) trying to convince potential employers, landlords and banks that they're not actually criminals.

The difference a false arrest can make in one person's life is devastating. According to the Wall Street Journal, someone with an arrest on their record is only half as likely to own a house and twice as likely to be below the poverty line by age 25.

Ballooning law enforcement budgets have combined with bad ideas like zero tolerance policies and "broken windows" policing to turn arrests into a near inevitability, especially for citizens who aren't white… or document police activity… or engage in First Amendment-protected speech. There's no path guaranteed to keep your record from being blighted by a trumped-up charge or an arrest that leads nowhere. To those who control your future -- employers, landlords, banks, college admission offices -- it all looks the same when the background report comes in. The FBI is barely interested in ensuring its criminal database only houses data on criminals and local law enforcement agencies seem to be totally disinterested in clearing those wrongfully charged. Once again, the public is expected to do the legwork if it ever hopes to climb higher than the lowest rung in our nation -- guilty even if proven innocent.

Filed Under: arrests, criminals, database, fbi, record

FBI Refuses To Let Public Know How Its Drone Usage Affects Their Privacy

from the I've-got-plenty-of-nothing-and-nothing's-plenty-for-[REDACTED] dept

The FBI's production of privacy impact assessments (PIAs) lags far behind its deployment of privacy-impacting technology. From facial recognition software to Stingray devices to its drone usage, the FBI has always violated privacy first and assessed the damage later. In some cases, it hasn't bothered to assess the impact at all, despite repeated assurances to questioning lawmakers that the required report (and it is required) is (forever) nearing completion.

Its biometric database, which pulls in photos from all over the place for its facial recognition software to peruse, rolled out without the required PIA in 2012. Two years later, the FBI is still promising Eric Holder that the PIA will be completed literally any month now, even as it hopes to have the system fully operational by the end of the 2014 fiscal year.

It has supposedly cranked out a PIA for its drone use -- again lagging far behind its first reported deployments in "late 2006." But the public apparently isn't allowed to know how the agency's drone use impacts its privacy. Instead of placing the assessment on its website for public viewing (the default method), the FBI has stashed it behind every shady government entity's favorite FOIA exception: b(5).

Here's the entirety of the "responsive documents" returned to MuckRock.

As Shawn Musgrave reports, the FBI withheld EVERYTHING.

Federal law requires the FBI to assess surveillance technologies for potential privacy and/or civil liberties issues. These technology assessments are typically prepared for public posting and review. When it comes to drones, however, the FBI has redacted these privacy reviews in full…

Even the cover sheets have been withheld. The reviews are recognizable only from their titles as provided on the disc of responsive documents sent in May: “1218644-0 - Drone PIA - Drone PIA.PDF” and “1218644-0 - Drone PIA - Drone PIA-Drone PIA Section 2.PDF.”

While the DOJ does allow for redactions and the withholding of documents for certain reasons ("classified, sensitive otherwise protected information"), it also requires responding agencies to file a document stating their reasons for withholding PIAs. The FBI also withheld this document -- assuming it even exists.

If I was a betting man, I'd say it's going to take a lawsuit to get this assessment released. The government's track record on transparency is horrific, even without the specter of "terrorism" or "drugs" being cited in the FOIA refusal. Since the FBI deals with both, it's a given that it will fight to withhold information that concerns its surveillance programs' impact on the public from the same public whose privacy it's invading. A Privacy Impact Assessment should never be private. While some information will probably need to be redacted, the complete refusal to release this document should be taken as an insult by the public, and as a further indicator of the government's inherent untrustworthiness.

Filed Under: doj, drones, fbi, pia, privacy, privacy impact assessment