Iran's President-Elect: Net Filtering Doesn't Work... Oh, And By The Way, Human Rights Are Universal

from the he-said-what??? dept

In the past, Iran has provided plenty of light relief here on Techdirt, whether because of plans to build its own Internet, or thanks to weird stuff like this. But it looks like those days are over following the election of a surprisingly-moderate President, Hassan Rouhani. Here, for example, are his thoughts on Net filters, as reported by The Guardian:

"Supporters of internet filtering should explain whether they've successfully restricted access to information? Which important piece of news has filtering been able to black out in recent years?"

He added: "Filtering has not even stopped people from accessing unethical [a reference to pornographic] websites. Widespread online filtering will only increase distrust between people and the state."

That's a pretty remarkable statement, since it comes from a nation that has tried to impose Net censorship more rigorously than most. It's also important, because it underlines why Western countries that keep flirting with the idea of introducing Net filtering are simply wasting their time. Rouhani has some other points that Western leaders would do well to remember:

"Injustice is an injustice...it's a double standard to call an injustice in an unfriendly country as an injustice but to label the same thing in a friendly country as not...human rights is same in any place around the world."

It's early days yet, and it remains to be seen whether the new President will be able to push through reforms in the face of conservative resistance in Iran. But it certainly looks like we might be seeing some interesting stories coming out of Iran soon, even if they are not so amusing as those Techdirt has carried in the past.

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Filed Under: civil liberties, free speech, hassan rouhani, internet filtering, iran

George W. Bush: NSA Surveillance Is No Problem Because Civil Liberties Are Guaranteed

from the say-what-now? dept

Former President George W. Bush commented on a variety of subjects in an interview with CNN, but of most interest to me was his comments on the NSA surveillance leaks. It's well known that many of the programs started under his administration, and apparently, he insists that the programs are fine because civil liberties are "guaranteed."

"I think there needs to be a balance, and as the president explained, there is a proper balance," Bush said.

Asked about an NSA program that tracks people's Internet activity, Bush said, "I put that program in place to protect the country. One of the certainties was that civil liberties were guaranteed."

Of course, the various leaks to date suggest that's not even close to true. But, really, what does that even mean? How are they "guaranteed"? You can't just say that sort of thing, you have to actually make sure it's true, and so far there's been little to no evidence to support that claim. For civil liberties to be guaranteed there would need to be a clear belief and reverence for things like the 4th Amendment. Instead, we have secret FISA court rulings that reinterpret the plain language of the Patriot Act to mean something different than how it reads in English. How is that "guaranteeing" civil liberties? It sounds a lot more like redefining words so that the administration can "claim" that civil liberties are protected by making sure that any that aren't actually protected are simply written out of what counts as "civil liberties."

Filed Under: civil liberties, george w. bush, nsa surveillance

Supporting EFF Means You're A Security Risk?

from the really-now? dept

As lots of folks keep trying to delve into the mind of Ed Snowden without really knowing him at all, Andrew Katz at Time has an article about the security clearance process that people go through to get into a job like that, discussing some of the "blind spots" in the process that might have let an Ed Snowden through. Apparently, the EFF sticker on his laptop should have been a warning sign:

In a photograph posted online after Snowden revealed himself, his laptop displays a sticker touting the Electronic Frontier Foundation, a longstanding advocate for online rights and staunch opponent of government surveillance. That would have been enough of a warning sign to make it into his file, Smith says, but investigators wouldn't have come across it because clearance interviews aren't performed at their homes: "You're not around that person's personal belongings to make any other additional observations about that person's characters."

It seems a bit extreme to suggest that merely supporting a group like EFF automatically makes you suspect for jobs in the intelligence world. After all, isn't EFF defending basic Constitutional freedoms that Americans hold dear, and which our government is supposed to be protecting? But, even more to the point, if having EFF paraphernalia makes you a potential security risk in the NSA, what does that say about NSA Director, General Keith Alexander who attended last year's Defcon in an EFF t-shirt: Clearly, the NSA is doomed. Its boss is a huge security risk who never should have been given clearance!

More seriously though, it's getting fairly ridiculous when supporting basic Constitutional rights suddenly makes you a security risk. We're entering witch hunt territory, which is what happens when people get overly paranoid.

Filed Under: civil liberties, ed snowden, edward snowden, eff, keith alexander, warning signs

Candidate Obama Debating President Obama On Civil Liberties vs. Government Surveillance

from the quite-a-difference dept

We recently had a video showing then Senator Joe Biden, from seven years ago, "debating" the current President Obama on government surveillance. I hadn't seen this until now, but someone else has put together a much better video showing Presidential candidate Obama in 2008 vs. President Obama in 2013. The difference is stark. Not only is there a massive difference in what's being said, but also in how it's being said. The Candidate Obama spoke clearly, directly strongly and without equivocation about protecting civil liberties and not giving up our freedoms. President Obama's speech, on the other hand, sounds weak, vague and unpresidential in comparison. In the first one, he makes these clear, declarative announcements:

This administration puts forth a false choice between the liberties we cherish and the security we provide.

But as President, he says (while rolling his eyes -- the video is incredible):

You can't have 100% security... and then also have 100% privacy and zero inconvenience.... We're, we're going to have to make some choices.

As a candidate:

I will provide our intelligence and law enforcement agencies the tools they need to take out the terrorists without undermining our Constitution and our freedoms. That means no more illegal wiretapping of American citizens. That means no more national security letters to spy on Americans who are not suspected of committing a crime. No more tracking citizens who do no more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. That's not what is necessary to defeat the terrorists.

As President, he talks vaguely about how his team made an "assessment" and that these programs keep people safe, and "in the abstract" people might claim these programs are "Big Brother" but he thinks there's a "balance" to be struck. It's funny how different dictatorial surveillance powers look when you're the guy in charge of them.

Filed Under: barack obama, civil liberties, nsa surveillance, security, surveillance

Trading Lives For Freedom Is The American Way

from the the-balance-sheet dept

As the national discussion about the NSA's secret domestic spying program rolls along, revelation has given way to a vast splintering of argument. By that I mean, the shock of the discovery has since devolved into various discussions about whether the program was needed, what checks and balances oversee it, and how effective it has been. Case in point, the NSA sent Keith Alexander to the Hill with claims that fifty terrorist plots have been thwarted by the program, arguing that keeping Americans safe and alive is all the justification needed for such an endeavor. As some have noted, this is a clear attempt to shift the argument from one of principal to an actuarial one.

Alexander and other witnesses before the House Intelligence Committee made sure to highlight key details of these foiled attacks. Understandably so: The more we focus on the program's successes, the less harshly we might be inclined to judge its alleged excesses. But what exactly is the tradeoff being made here, and how do these revelations address concerns about the potential for NSA over-spying?

That is indeed the question, is it not? Particularly in light of President Obama's assertion that any over-spying in question would be deemed illegal by the government. The same government, mind you, that is committing the illegal acts themselves under the purview of a secretive agency, discussed in secretive committees, and codified by a secretive court. That's the kind of oversight one might call Stalin-esque. As the National Journal rightly continues:

That any abuse of the system would be treated after the fact as a crime doesn't do anything to assuage Americans worrying that the crime is possible in the first place. It's also not outrageous to say, as my colleague Conor Friedersdorf does, that the tradeoff we've made between liberty and security is out of balance, and that maybe we've let our fear of terrorism get the better of us.

Except that statement is lacking. We're still functioning on a balance sheet, where the concern is how much freedom we're abdicating for security, rather than if we're abdicating any at all. It's a losing argument that leaves the tyrannical door open to feature creep, secrecy without oversight, and a patient stalking of public apathy. The fact of the matter is that the basic concepts of freedom cannot be done half way. This isn't a call for anarchy. We do have certain fundamental rights codified by one of the most ingenious documents ever devised and any creep against them is an afront to what generations long past did for us today.

I would argue that what's needed, instead of the wishy washy arguments for the balance sheet, is for a more frank, stark, and even frightening position to be taken. One of the most under-quoted lines from Thomas Jefferson is:

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."

Were there a more apt counter-example of Jefferson's concept of liberty than the NSA's domestic spying program, it would involve actual weaponry. His words come from a time when our leaders were brave. They say, essentially, that no quarter will be given to the shaving of liberty under guise of legal justification. I would add to Jefferson's quotation only that the limits of justification should also be ignored.

So, with that, I would suggest the more extreme position we should all be taking is simply that we're willing to accept fear, injury, and even death at the hands of enemies in exchange for the return of our freedom. While I happen to think the threat of international terrorism is real but overblown, I would be willing to accept that same trade were it not overblown. I'm willing to state for the record that it is not only my life I'm willing to trade for freedom from intrusive government, but on principal I would have to accept the loss of safety to my family's lives, my friend's lives, and all of yours as well. "Give me liberty of give me death", as Patrick Henry famously said, but it apparently needs to be repeated. This isn't some silly call to armed revolution, of course, only a willingness, nay, an eagerness to prefer dangerous liberty over safety in the arms of government intrusion.

Filed Under: american principles, civil liberties, freedom, liberty, security

Eric Holder Wants To Stop And Frisk The NYPD

from the competition:-who-can-abuse-civil-rights-more? dept

The NYPD really loves its stop and frisk policy. The prospect of randomly stopping exclusively minorities a random selection of New Yorkers really excites the department. And why not? The practice has done wonders to prevent crime in the city. Well, if you define “crime” as pot possession. Because the policy hasn’t accomplished much of anything else.

Now the constitutionality of the policy is in jeopardy, awaiting a decision from Judge Shira “Don’t Call Me Judy” Scheindlin, the judge the City decided to embarrass by commissioning a report accusing her of bias because the City is incredibly stupid.

When and if (OK, “when”) Judge Scheindlin strikes down the current iteration of the policy, Eric Holder has a suggestion for how to remedy the violation. And Mayor Mike Bloomberg is none too pleased…

The Attorney General’s office filed a brief yesterday outlining one option Judge Scheindlin might consider in awarding injunctive relief:

The News reports that U.S. Attorney General Eric Holder’s office filed a brief yesterday requesting that if the NYPD loses the case and its stop-and-frisk policies are found to be illegal, “the court has wide discretion to enter injunctive relief,” which “may include the appointment of an independent monitor.” … Mayor Bloomberg is reportedly “outraged.”

And we all know what an “outraged” Michael Bloomberg looks like.

Alex Pareene of Salon notes:

The NYPD obviously needs a monitor. The city argues that the department’s own internal affairs bureau is oversight enough, but the IAB has failed to uncover or prosecute an array of recent examples of police misconduct and IAB veterans and plenty of cops who’ve dealt with the bureau say it’s slow, incompetent, and bordering on corrupt. New York’s Civilian Complaint Review Board is independent and thorough, but it also has no authority beyond issuing recommendations to the commissioner. A complete lack of accountability and oversight is part of Bloomberg’s governing philosophy, which holds that he should be able to appoint people who answer only to him, and then those people should be in charge forever.

Not only is New York’s IAB suspect, there are rumors (which I’ve been unable to confirm) that the Manhattan District Attorney is moving the office of the prosecutors assigned to these cases from an undisclosed location back to the main office. Placing prosecutors looking into police misconduct back in a building where multiple cops can watch potential informers enter and exit seems like foolhardy.

For all the flack that Eric Holder is taking (and all the flack Assistant AG Thomas Perez is about to get in his Secretary of Labor confirmation hearings), Holder’s handling of civil rights has been aggressive and commendable:

Holder’s Justice Department has actually had a very impressive record on civil rights cases. His Civil Rights Division, led by Thomas Perez, has not hesitated to investigate police departments for misconduct, and it has forced reforms in cities like in New Orleans. In March of this year, Perez announced an investigation into Cleveland police focusing on excessive force. Thomas Perez is decidedly one of the best things about the Obama administration. That he’d push the Justice Department to weigh in on the NYPD case, over the strong objections of Mayor Bloomberg, is laudable, especially because Obama himself has a strange obsession with winning the mayor’s favor.

If she rules against the City, Judge Scheindlin may not accept the DOJ’s offer, but it looks logical on paper. Federal agents pulling rank all over town is sure to make Bloomberg and the NYPD even angrier.

I guess the City doesn’t like being singled out and subjected to humiliating spot searches to guarantee that it’s in full compliance with the law. Go figure.

Filed Under: civil liberties, doj, eric holder, michael bloomberg, nypd, stop and frisk

FBI Boss: Collecting Billions Of Phone Records Could Prevent Next 9/11, Boston Bombing -- Despite Not Having Prevented The Originals

from the if-at-first-you-don't-succeed,-double-down dept

Robert Mueller, the director of the FBI testified in front of the House judiciary committee on Thursday, and like others before him, attempted to justify widespread domestic surveillance by pointing at all the terrorist activity it has and could have prevented. (All the while conveniently ignoring the fact that these tactics had little to do with successfully prevented terrorist attacks.)

He described how Khalid al-Midhar, one of the 9-11 hijackers, had called a Yemeni safe house from a phone in San Diego shortly before the attack – a phone call that would have been intercepted and acted upon, claimed Mueller, had today's surveillance system been in place.

Prevented 9/11? That's an interesting claim -- one that can't be easily disputed (or verified). But there's a couple of problems with Mueller's scenario. One, the FBI would have needed to "connect all the dots" beforehand, something that much easier said than done. Not having these dots connected allowed the Boston bombers to slip through the surveillance net. This is not necessarily a failure. Exponentially increasing the amount of data turns surveillance into a search for a needle in a haystack -- and the FBI, NSA, et al seem to be mainly concerned that the haystack just isn't big enough.

Two, there's a good possibility that the FBI and NSA already had something like this in the works (if not actually operable) even before the 9/11 attacks. The Big Picture points out that the NSA was already installing backdoors in the Windows operating system back in 1999, and links to a story detailing a DEA/NSA collaboration, which supposedly installed a domestic "call tracing program" at AT&T and Verizon in December of 2000 and which had been tracking calls from the US to various countries since the 1990's.

The government’s dependence on the phone industry, driven by the changes in technology and the Bush administration’s desire to expand surveillance capabilities inside the United States, has grown significantly since the Sept. 11 attacks. The N.S.A., though, wanted to extend its reach even earlier. In December 2000, agency officials wrote a transition report to the incoming Bush administration, saying the agency must become a “powerful, permanent presence” on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues.

In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records...

In a separate program, N.S.A. officials met with the Qwest executives in February 2001 and asked for more access to their phone system for surveillance operations, according to people familiar with the episode. The company declined, expressing concerns that the request was illegal without a court order. The agency, those knowledgeable about the incident said, wanted to install monitoring equipment on Qwest’s “Class 5” switching facilities, which transmit the most localized calls. Limited international traffic also passes through the switches.

Other N.S.A. initiatives have stirred concerns among phone company workers. A lawsuit was filed in federal court in New Jersey challenging the agency’s wiretapping operations. It claims that in February 2001, just days before agency officials met with Qwest officials, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it.

The same lawsuit accuses Verizon of setting up a dedicated fiber optic line from New Jersey to Quantico, Va., home to a large military base, allowing government officials to gain access to all communications flowing through the carrier’s operations center.

This certainly gives the appearance that someone, if not necessarily the FBI, would have had access to a great many phone records months before the 9/11 attacks, if not actually years before. And yet, the attacks still happened and the head of the FBI is using the tragedy as a crutch to support harvesting millions of records on domestic end-to-end calls.

(For added verification that the "because terrorism" argument for widespread surveillance predates the 9/11 attacks, here's George Herbert Walker Bush complaining that requiring warrants for "terror" wiretaps would be an "unnecessary diminution of collection of foreign intelligence" -- in 1976.)

Despite this, Mueller doubled down on the "threat prevention" argument. Not only could the surveillance prevent the next 9-11, but the next Boston bombing as well. This led to many Congressmen angrily asking why the FBI hadn't bothered preventing the first Boston bombing, seeing as it had access to all of this ultra-effective, terrorist-fighting data. Mueller's rebuttal? Even the smallest curtailing of the FBI's virtually unlimited access to data would be catastrophic.

"If you narrow [the scope of surveillance], you narrow the dots and that might be the dot that prevents the next Boston," said Mueller.

Mueller also expressed concern about granting permission to Google and other internet companies to disclose details on requests for data.

He also rejected calls from technology companies such as Google to disclose the scale of the programs, saying even this information could help terrorists seeking to hide their communications.

"Any tidbit of information that comes out" about how authorities track communications means terrorists "find ways around", he said.

"Every time we have a leak like this and you follow it up and look at the intel afterwards [you find terrorists] are looking for ways around.. If we lose our ability to get their communications we are going to be exceptionally vulnerable."

Sure, terrorists might decide to use services that fight government data requests (or avoid services the government is currently surveilling) but so will many Americans and foreigners who are currently suspected of nothing but are being loosely surveilled all the same. Keeping the terrorists in the dark would be one thing if the surveillance was limited to suspected terrorists, but the FBI/NSA's blanket coverage affects millions of people worldwide. This, combined with the lack of proof these supposedly crucial tools are useful in fighting terrorism, is a strong argument for allowing companies forced to comply with untargeted data hauls granted by a secret court to, at minimum, inform their users that these demands are being received and/or complied with.

You have to admire Mueller's one-track defense. According to him, everything that's been leaked harms our national anti-terrorists efforts. Non-terrorist Americans have no need to question the methods being used or fear for their privacy. Mueller says the call data can only be used for anti-terrorism efforts, citing section 205 of the PATRIOT ACT. But as Julian Sanchez points out, this section explicity allows the supposedly "one-purpose" information to be disseminated to law enforcement in order to pursue non-terrorist suspects [Section §1861(g)(2)(c)].

In this section, the term “minimization procedures” means—

(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.

Above and beyond these "minimization procedures" that allow for a surprising amount of easy dissemination, there's the fact that the FBI (and others) have rendered the limitations of the PATRIOT ACT meaningless by declaring pretty much everything collected to be "relevant" to anti-terrorist efforts.

Others questioned whether the FBI had acted lawfully in seeking to use section 215 of the Patriot Act to target all calls made in the US on the basis that they "might become relevant" to future terrorism investigations.

Searching the houses of every phone owner might uncover something relevant to current investigations, which is arguably more useful than harvesting data for future reference, and yet, no one seems to think that's a good idea. Gathering metadata is much less intrusive than house-to-house sweeps, but just because it's less noticeable doesn't mean it's any less wrong.

Mueller's excuses were worn out before he even started using them. But it wasn't the first time "terrorism" has been used to justify government overreach and it surely won't be the last.

Filed Under: civil liberties, fbi, nsa, patriot act, robert mueller, surveillance, terrorism

NYPD Sergeant Says 'Guilty Until Proven Innocent' Is Just The Price We Pay For A 'Free Society'

from the nothing's-more-'secure'-than-a-jail-cell dept

We've been dealing with the New York police department lately, thanks to the mayor and the police chief using the recent Boston bombing as an excuse to increase surveillance efforts and enact other policies to further encroach on New Yorkers' civil liberties. Whenever something terrorist-related occurs, it seems as though the NYPD's reps can't keep their opinions to themselves, even as the department itself drifts further and further away from being a sterling example of How Things Should Be Done.

In a recent Christian Science Monitor article dealing with "teenagers, terrorism and social media" (focusing on the recent Cameron D'Ambrosio arrest for making "terrorist threats" via some improvised rap lyrics posted to Facebook), Sgt. Ed Mullins of the NYPD shows up to make some very disturbing statements about your rights and responsibilities as a (mere) citizen. It starts with the worst kind of "policy" and goes downhill fast.

Using a zero tolerance approach to track domestic terrorists online is the only reasonable way to analyze online threats these days, especially after the Boston Marathon bombing and news that the suspects had subsequently planned to target Times Square in Manhattan, Mullins says. The way law enforcement agencies approach online activity that appears sinister is this: “If you’re not a terrorist, if you’re not a threat, prove it,” he says.

"Zero tolerance" is never "reasonable." It never has been and it never will be. In fact, it's the polar opposite. Zero tolerance policies simply absolve the enforcers of any responsibility for the outcome and grant them the privilege of ignoring mitigating factors. It allows them to bypass applying any sort of critical thinking skills (the "reason" part of "reasonable") and view every infractions as nothing more than a binary IF THEN equation.

Mullins goes even further than this, though, asserting that the burden of proof lies with the person charged, not the person bringing the charges. This flips our judicial system on its head (along with the judicial systems in many other countries) and, if applied the way Mullins views it, puts accused citizens in the impossible position of trying to prove a negative. This is just completely wrong, and it's a dangerously stupid thing for someone in his position to believe, much less state out loud. (Mullins also heads the Sergeants Benevolent Association, the second-largest police union in New York City.)

Believe it or not, Mullins is not done talking. What he says next doubles up on the "dangerous" and "stupid."

“This is the price you pay to live in free society right now. It’s just the way it is,” Mullins adds.

No. It isn't.

This is the price Mullins is charging to live in the NYPD's severely stunted version of a "free" society. The NYPD has been harassing young minorities at the rate of 500,000 impromptu stop-and-frisks per year for the better part of the last decade. For the past 10 years, the NYPD has been regularly trampling citizens' civil liberties simply because they attend a mosque. The NYPD and Mayor Bloomberg have worked ceaselessly to make New York the most-surveilled city in the U.S.

That's the price New Yorkers are paying. It has nothing to do with living in a free society. The NYPD takes liberties away and high-ranking cops like Mullins have the gall to suggest there's some sort of equitable exchange occurring. Mullins doesn't seem to understand (or just doesn't care) that if you take away freedom you no longer have a free society.

It has been said that eternal vigilance is the price of liberty, but "eternal vigilance" isn't shorthand for oppressive surveillance and zero tolerance policies that make freedom less "free." "Eternal vigilance" isn't treating the Constitution like a relic too worn and tattered to serve any purpose in these "dangerous" times. And being an officer of the law isn't an excuse to shut your intellect off and allow your brain stem and broad policies to "work" in concert in order to treat loudmouth teens on Facebook like a guy with a trailer home full of explosives.

This "vigilance" is supposed to be put to use by citizens in order to prevent authorities like Mullins from encroaching on our liberties. It's not solely limited to a united military effort against foreign powers. There are plenty of people apparently willing to attack our freedom from the comfort of the home front.

Filed Under: civil liberties, due process, freedom, guilty until proven innocent, nypd

TIME/CNN Poll Shows Increasing Number Of Americans Won't Give Up Civil Liberties To Fight Terrorism

from the the-government-can't-give-you-safety,-but-it-can-take-your-rights dept

When discussing NYPD Police Chief Ray Kelly's assertion that "privacy is off the table" as a result of the Boston bombing, I mentioned I hadn't heard any public outcry demanding the government and law enforcement step in and do something (i.e., curtail civil liberties) in response to the tragedy. The responses we were seeing seemed to be nothing more than legislators and law enforcement officials pushing their own agendas.

This isn't just me not hearing what I don't want to hear. There's actual data available that explains the lack of concerned noises from Americans. A CNN/TIME poll shows that nearly two-thirds of Americans aren't interested in sacrificing rights to combat terrorism.

When given a choice, 61 percent of Americans say they are more concerned about the government enacting new anti-terrorism policies that restrict civil liberties, compared to 31 percent who say they are more concerned about the government failing to enact strong new anti-terrorism policies.

This is a vast improvement over 1996, when a post-Atlanta Olympics bombing poll showed only 23% opposed giving up freedom in exchange for fighting terrorism.

Breaking it down further, the poll also shows a bit of split along party lines. Self-identified Democrats are most likely to put their faith in government/law enforcement to make the U.S. "safer" by curtailing freedoms (51%). Republicans are less likely to favor this exchange (41%). For independents, less than a third (32%) are willing to give up some freedom to combat terrorism.

There is a bit of bad news contained within this generally positive indicator that Americans are less willing to give up something of theirs in exchange for the vagaries of "safety." The percentage of respondents who support additional surveillance in public areas has increased to 81% from 63% the week after the 9/11 attacks. On the other hand, there's a growing reluctance among Americans to allow the government to expand its surveillance efforts to cover more private venues, like email or cell phones. Only 38% approve of these efforts, down from 54% after 9/11.

Now, when legislators and law enforcement reps make strides towards reducing civil liberties, they do have some support. Those over the age of 50 (across all political parties) are most likely to support a loss of freedom (50%, as compared to only 34% for those under 50). Tellingly, this is pretty much the same demographic that feels video games are a bigger "safety threat" than guns (72% of respondents over the age of 45).

Unfortunately for the under-50 crowd, the over-50 demographic is historially the most active at the polls. If this perception of widespread support for invasive policies and legislation is going to change, the under-50 demographic is going to need to do a whole lot more voting. If not, these politicians are going to be able to truthfully say they have support for these policies -- at least, the only support that matters: die-hard voters.

Filed Under: civil liberties, fear, fud, terrorism, the public

Homeland Security: Not Searching Your Laptop Doesn't Benefit Your Civil Liberties, So We Can Do It

from the interesting-4th-amendment-interpretation dept

We've written many times over the years concerning the legality of Homeland Security searching your laptop at the border without reasonable suspicion. Many courts have held that, effectively, the 4th Amendment does not apply at the border, so they don't need a warrant to search your laptop. However, they've been continually pushing this ability further and further. For example, they got a court to say that this applies not just while you're at the border -- they can take your laptop off site to search it and hang onto it for a while. However, that time, they at least needed to have a "reasonable suspicion." DHS has taken a pretty firm stand that it must be able to keep doing this. While the ACLU and the EFF and others keep challenging these rules, to date the only possible crack was in a case where there's evidence that the search was politically motivated.

Late last week, a bizarre finding popped up. Back in 2009, when DHS announced its new rules for laptop searches at the border, it also promised that it would do its own "Civil Liberties Impact Assessment" within 120 days. Three years later, Homeland Security's Orwellian "Office of Civil Rights and Civil Liberties" has finally released a two page executive summary of the findings, which more or less says "there are no civil liberties issues" with laptop searches. What else would you expect them to say? The ACLU has filed a FOIA request for the full report, but let's just focus on the most horrifying statement in the executive summary:

We conclude that CBP's and ICE's current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.

That statement is so bizarre I read it half a dozen times before I was sure it really said what it appears to say. It appears to be a somewhat stunning redefinition of how one reviews whether or not something violates the 4th Amendment. Rather than recognizing the rather explicit restrictions under the 4th Amendment, they merely say that it is okay to do these searches because not doing them would not have civil rights/civil liberties "benefits." That is incredible. The double negative logic there is truly amazing. In other words, we can violate the Constitution, so long as not doing so would not have civil liberties benefits. Wow.

Meanwhile, since Homeland Security has similarly argued (as part of these cases) that its Constitution Free zone for searches applies to any place 100 miles from the United States border, some are pointing out that this means that every electronic device -- computers, cell phones, you name it -- in Detroit can be searched with absolutely no reasonable suspicion under DHS's interpretation (since Detroit is less than 100 miles from Canada). But don't worry, since there is little civil liberties or civil rights benefits to not searching your stuff, DHS says it's okay.

Oh, and in case you're wondering on what basis DHS makes this assessment, it appears to be based on their own directives rather than on any "laws."

So, if you're playing along at home, DHS has decided, based on its own review of its own directives, that it can search any electronic device within 100 miles of the border without requiring a warrant, probable cause, reasonable suspicion or anything like that -- because actually respecting the Constitution "would be operationally harmful" and wouldn't really create any "civil rights/civil liberties benefits" for you.

Filed Under: 4th amendment, border searches, civil liberties, civil rights, homeland security, privacy