DHS To Officially Require Immigrants' Files To Contain Social Media Info

from the every-life-an-open-book dept

It looks like being the wrong kind of American will result in the mandatory collection of social media account handles and aliases. New rules on social media snooping have been floated several times with varying degrees of sincerity, but this time the DHS actually means it.

The Department of Homeland Security published the new rule in the Federal Register last week, saying it wants to include "social media handles, aliases, associated identifiable information, and search results" as part of people's immigration file. The new requirement takes effect Oct. 18.

This will affect all immigrants, whether or not their legal status says they should be treated like US citizens. The rule covers permanent residents and naturalized citizens, not just visa applicants and visitors. And it will proceed despite two important missing elements: clear legal authority and any proven national security value.

The DHS admitted in a letter to Ron Wyden it had no authority to search Americans' social media accounts. All it could point to was the "border exception" upheld by courts as a valid Fourth Amendment bypass thanks to its national security nexus. But as for laws explicitly allowing the government to gather social media info from Americans, it had nothing.

Critics of this stepped-up demand for information point out it's a reactionary move by the DHS, aligning it with the repeated failures of the constantly one-step-behind-the-terrorists TSA.

Alex Nowrasteh, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity, said the expansion seems to originate from concerns about Tashfeen Malik, one of the San Bernardino shooters in late 2015.

“This is another example of the government changing security protocols based on a previous incident that will impose an enormous cost and that is of dubious value for the future,” Nowrasteh said. “Social media has been used in immigration courts for years but there’s little evidence that it’s helped with visa vetting.”

But it's not just libertarian-leaning entities making this point. DHS oversight has said the same thing. A report released by the DHS Inspector General says the DHS has no plan in place to measure the effectiveness of social media account searches.

[T]hese pilots, on which DHS plans to base future department-wide use of social media screening, lack criteria for measuring performance to ensure they meet their objectives. Although the pilots include some objectives, such as determining the effectiveness of an automated search tool and assessing data collection and dissemination procedures, it is not clear DHS is measuring and evaluating the pilots’ results to determine how well they are performing against set criteria. Absent measurement criteria, the pilots may provide limited information for planning and implementing an effective, department-wide future social media screening program.

As the report notes, the policy shift was inspired by a terrorist attack the searches might have done little to prevent. The pilot programs rolled out December 2015, meaning the planned intrusiveness expansion predates President Trump's grandiose border plans.

This is bound to have a chilling effect on Americans who don't even plan to travel out of the country. Anyone spending much time interacting with immigrants/visa holders/permanent residents on social media can expect to have their sides of conversations revealed by these searches, even if they're natural-born US citizens located well outside the DHS's Constitution-free zones. The latent threat of exposed convos could steer US citizens away from engaging with anyone whose nationality might not be 100% American.

The new rule is silent on the subject of passwords, but it's pretty clear reluctance to turn over this info will result in "incomplete" searches of immigrants' devices. The best case scenario is they're free to go… without their devices. The worst case is hours of detention while CBP/ICE agents attempt to talk detainees into handing over this information.

Filed Under: citizens, dhs, homeland security, immigration, privacy, social media, surveillance

UK Government Has Secretly Created A Huge Database Storing Details About Its Citizens' Private Lives -- Since 2000

from the database?-what-database? dept

Long before the vast planetary surveillance programs being carried out by the Five Eyes team were revealed by Edward Snowden, there was Echelon, a similarly globe-spanning system for slurping up communications. The person who did more than anyone to expose this top-secret collaboration was the UK journalist Duncan Campbell:

In 1988, he revealed the existence of the ECHELON project, which has since 1997 become controversial throughout the world. In 1998, he was asked by the European Parliament to report on the development of surveillance technology and the risk of abuse of economic information, especially in relation to the ECHELON system. His report, “Interception Capabilities 2000” was approved by the European Parliament in April 1999, and presented to the parliament in Brussels in February 2000. In July 2000, the European Parliament appointed a committee of 36 MEPs to further investigate the ECHELON system.

The MEPs wrote another report, "on the existence of a global system for the interception of private and commercial communications (ECHELON interception system)", which was presented in July 2001. It would doubtless have created some pretty big waves in the EU had not the attack on the Twin Towers a few months later meant that nobody wanted to be seen weakening the intelligence services. The report was filed and Echelon was forgotten -- and carried on as before. A new article by Campbell published in The Register shows that around the same time that most politicians lost interest in exposing mass surveillance, the UK government was busily building another, highly-intrusive monitoring system that was only acknowledged very recently:

Finally, on November 4th [2015], the Home Office took the lid off what had been going on secretly since 2000. Asking Parliament to allow mass surveillance of telephone records to continue, Home Secretary Theresa May admitted that "under Section 94 of the Telecommunications Act 1984 ... successive governments have approved the security and intelligence agencies' access" to [bulk] communications data from communication service providers", claiming that it helped MI5 "thwart a number of attacks here in the UK".

According to Campbell, that "bulk communications data" includes detailed records of telephone calls, health records, personal credit card and banking transactions, flight bookings and internet records. As he points out, the fact that all this data was being gathered secretly meant that repeated -- and heated -- Parliamentary debates about whether it should be collected, conducted in the belief that currently it was not, were a complete sham:

MPs and peers spent months arguing about a pretence, and in ignorance of the cost and human rights implications of what successive governments were doing in secret.

As well as duplicity, that bespeaks a stunning contempt on the part of the UK government for both Parliament and the public. That indifference to people's concerns is also manifest in the latest attempt to bring in a Snooper's Charter, officially known as the Investigatory Powers Bill. Campbell points out that the only response from the UK authorities to widespread fears about the creation of a huge, intrusive database recording key aspects of UK citizens' lives is to pretend it doesn't exist:

Vigilance on behalf of liberty has had little discernible impact, except in the field of semantics. Across 299 pages in the new Investigatory Powers Bill, the word "database" does not appear once.

Billions of call and internet records, stolen financial data, intercepted travel records, a heap of bulk personal datasets on matters including religion, racial or ethnic origin, political views, medical condition, sexual orientation, or legally privileged, journalistic or otherwise confidential information, all joined up together and archived in secret do not constitute a "database", whatever techie readers may think. And that's official.

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Filed Under: citizens, dossiers, echelon, privacy, surveillance, uk

Court: Your Fourth And Fifth Amendment Rights No Longer Exist If You Leave The Country

from the a-blank-check-for-extraterritorial-abuse dept

The DC Appeals Court has just come to an unfortunate conclusion: because terrorism exists, your rights as a citizen will not be upheld if you travel outside of the United States. This summary of the case is from Lawfare's David Ryan, whose article claims this is a "victory" for the DOJ, rather than a loss for the American public.

The plaintiff, Amir Meshal, is a U.S. citizen and resident of New Jersey. According to the allegations in his complaint, he traveled to Somalia in 2006 to broaden his understanding of Islam, but fled to Kenya soon after because of violent unrest. In January 2007, a joint U.S.-Kenyan-Ethiopian law enforcement operation apprehended him and transported him to Nairobi. Over the next four months, the defendants allegedly violated Meshal’s Fourth and Fifth Amendment rights by secretly detaining and interrogating him, threatening him with torture and death, denying him access to counsel, and moving him across the borders of three African countries without legal process. The FBI eventually released Meshal, and the U.S. never charged him with any crime.

Meshal sued the FBI for violating his rights, bringing a Bivens action against the involved agents. This action is supposed to remedy unlawful searches and seizures that occur during criminal investigations. Meshal's case, however, raised previously-unaddressed issues. First, Bivens has never been applied to extraterritorial incidents. Second, the tort -- while addressing actions taken during criminal investigations -- has never been raised in the context of criminal investigations with national security implications. Because of this, the court (somewhat reluctantly) found that Meshal could not seek damages under Bivens.

As we understand it, the Supreme Court has taken a case-by-case approach in determining whether to recognize a Bivens cause of action. We therefore need not decide, categorically, whether a Bivens action can lie against federal law enforcement officials conducting non-terrorism criminal investigations against American citizens abroad. Nor do we decide whether a Bivens action is available for plaintiffs claiming wrongdoing committed by federal law enforcement officers during a terrorism investigation occurring within the United States. Our holding is context specific.

Unfortunately, this means Meshal cannot seek redress under any existing judicial precedent.

Once we identify a new context, the decision whether to recognize a Bivens remedy requires us to first consider whether an alternative remedial scheme is available and next determine whether special factors counsel hesitation in creating a Bivens remedy. See Wilkie, 551 U.S. at 550.

Meshal has no alternative remedy; the government does not claim otherwise. See Meshal, 47 F. Supp. 3d at 122 (“The parties agree that Mr. Meshal has no alternative remedy for his constitutional claims.”). Meshal, backed by a number of law professors appearing as amici curiae, argues that, when the choice is between damages or nothing, a Bivens cause of action must lie. The Supreme Court, however, has repeatedly held that “even in the absence of an alternative” remedy, courts should not afford Bivens remedies if “any special factors counsel[ ] hesitation.”

The lower court, along with the dissent in this decision, finds this situation unsatisfactory. But as the appeals court sees it, the lack of a remedy for the violation of Meshal's rights under these specific circumstances is a problem that must be solved by other government entities

There are no definitive answers to these competing visions of congressional action. We are not foreclosing either interpretation, but in a case where the thumb is heavy on the scale against recognizing a Bivens remedy, uncertain interpretations of what Congress did in 1973 and 1988 cannot overcome the weight of authority against expanding Bivens. In any event, if the courts, as amici argue, have radically misunderstood the nature and scope of Bivens remedies, a course correction must come from the Supreme Court, which has repeatedly rejected calls for a broad application of Bivens. Because we follow its lead, we will ship our oars until that Court decides the scope of the remedy it created.

If people like Meshal are to have recourse to damages for alleged constitutional violations committed during a terrorism investigation occurring abroad, either Congress or the Supreme Court must specify the scope of the remedy.

The court doesn't appear thrilled with the conclusions it has reached. "Our hands are tied" decisions are seldom satisfactory, especially for plaintiffs.

The dissenting opinion -- written by Judge Cornelia Pillard -- points out just how bizarre the court's conclusion is.

Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal’s tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.

But the decision stands. And for the DOJ, it means its agencies will have a lot of leeway in the handling of US citizens it detains in other countries. Americans' rights are effectively nullified if the detainment is declared to be in the interest of national security. The majority opinion -- while dismissing Meshal's case -- states its sympathy for his situation and agrees that US citizenship has "inherent value." Unfortunately, its conclusion here appends a national security asterisk to that assertion, furthering the notion that civil liberties should nearly always grant the right of way to the War on Terror.

Filed Under: 4th amendment, 5th amendment, amir meshal, borders, citizens, doj, fbi, rights

Lawsuit Filed To Force NYPD To Respect Citizens' First Amendment Right To Record Police Officers

from the inevitable-law-enforcement-response:-'make-me' dept

The NYPD may be arbitrarily slapping the word "secret" on its internal documents and making sure all of its intelligence stays safely within its walls, but when it comes to communicating with the outside world, it's apparently a one-way transaction. It talks (when it wants to and can completely guide the narrative) but it rarely ever listens. Case in point: the Brooklyn DA says he won't prosecute low-level marijuana possession charges, so naturally the Brooklyn division tells its officers that low-level marijuana possession arrests will continue uninterrupted.

Now, it's facing a lawsuit for its refusal to stop arresting citizens for filming police officers. A recent court of appeals decision UPHELD (all caps for a reason) the public's First Amendment right to film police officers and other public servants. The ruling was loaded with exceptions, but it did reaffirm what was already a legal right, albeit one that is routinely trampled by members of law enforcement who take offense to being publicly recorded while performing their public duties.

A federal lawsuit, which cites arrests of people who recorded police confrontations or activity, was filed on Tuesday asking a judge to declare that people have a right under the First Amendment to film or record officers working in public places.

The suit was filed in Federal District Court in Manhattan on behalf of one of the people arrested, and seeks a permanent injunction barring New York City employees from retaliating against those who record them in public.

The NYPD apparently believes it's exempt because there's been no specific ruling from a district court covering its jurisdiction. This despite the fact that the DOJ itself fired off a letter in response to a lawsuit brought Baltimore that stated plainly:

[T]he justification for this right is firmly rooted in longstanding First Amendment principles.

This also despite the fact that its own Patrol Guide say photographing police isn't an arrestable offense.

[T]he Police Department Patrol Guide states that “taking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

This also despite the fact that the NYPD's own chief of federal litigation made the following statement:

"[B]ystanders are allowed to film police officers as long as they’re not interfering with the officers’ duties and/or police operations.”

The NYPD may be trying to dodge this on jurisdiction specifics, but note that the DOJ's letter doesn't specify this only applies to Baltimore. The letter plainly says "First Amendment right," which is something applied to all Americans, regardless of jurisdiction. It also references the Glik decision, which plainly established citizens' right to record.

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.(2) See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

The footnote (2) begins with this unambiguous sentence:

There is no binding precedent to the contrary.

And yet, the NYPD continues to harass, arrest and shut down citizens who record police interactions. Shawn Thomas' experience, which we detailed here earlier, saw him harassed by a police officer who claimed he was interfering with police business despite the fact that he had to walk 30 feet away from the detained suspect to deliver this statement. The whole interaction began with police intimidation tactics and culminated in the arrest of Thomas.

Thomas was not an isolated incident.

Debra Goodman, was taking a cellphone video of paramedics assisting a woman in a wheelchair on West 73rd Street and Broadway last year before a police officer intervened.

"He asked me to produce ID. I refused, because I knew I wasn’t doing anything wrong,” Goodman told CBS. “And then he grabbed my arm and handcuffed me, and told me I was under arrest.” She was held for 25 hours.

This lawsuit asks for a permanent injunction prohibiting retaliatory actions from NYPD officers against those who record them. Time and money are going to be poured into "protecting" a right that already unequivocally exists. And there's no guarantee the NYPD will pay attention even if it receives a jurisdiction-specific injunction. After all, a federal appeals court ruled the state's wiretapping law (something frequently abused to prosecute citizens for recording cops) was unconstitutional and this decision was greeted by Morgan County prosecutors and law enforcement with a "so, business as usual" shrug. It took the involvement of the ACLU to get Morgan County to align itself with a ruling that plainly stated recording police was not a violation of the wiretapping statute.

What the NYPD is doing is ignoring common knowledge and several court decisions. The DOJ's letter may have been addressed to Baltimore's police department, but the wording (and the cases cited) apply to every law enforcement agency. The US government itself has declared that citizens have this right, something that comes bundled with the First Amendment. It's utterly ridiculous that anyone should have to force the issue in a "local" court in order to make the NYPD respect citizens' First Amendment rights.

Filed Under: citizens, filming, first amendment, nypd, police, recording police

We Ask The Supreme Court To Clarify If It's Legal For Virginia To Bar Techdirt From Filing Freedom Of Information Requests

from the restrictions-on-the-press dept

Like many media properties, we've filed Freedom of Information Act requests to seek out information at both the federal and state levels. The various federal and state freedom of information regulations are important tools for the public, and also for those doing journalism to seek out and report on important information that should be public. Unfortunately, some states like to limit these laws, and Virginia in particular has made its law such that it limits filings to only Virginia residents... or to a very small number of media companies that meet its "exemption" rules. Basically, it will allow freedom of information requests from "traditional newspapers, print magazines or FCC-licensed broadcast media." So if you're an online-only media property and not a Virginia resident, you're out of luck.

A small number of other states also have "citizens only" clauses in their FOI laws, though Delaware's was recently struck down as unconstitutional. However, Virginia is the only state that allows a partial exemption for some media players, but not for others. Even so, a court recently upheld Virginia's law as constitutional. This has created both a circuit split (with different courts in different circuits finding very differently on the general issue of "citizens only" clauses), and an unfair burden on anyone doing online-only reporting and thus not qualifying for the specific exemption in Virginia's law.

As the Supreme Court has been asked to hear an appeal of that case, we've signed onto an amicus brief along with the American Society of News Editors, the Center for Investigative Reporting, Ars Technica, Daily Kos, Grist, Matthew Lee, Muckrock, Automattic and Tumblr, arguing that this is an issue where existing rulings and the arbitrariness of the exemptions in the law have created massive uncertainty for anyone doing investigative reporting. So our filing is asking the Supreme Court to take the case and clarify whether or not Virginia's restrictive law is constitutional. Hopefully, the Court recognizes the problems of the law and makes clear that, in this age when anyone can do reporting, limiting such rules to only citizens or an arbitrary definition of professional media is too restrictive.

Filed Under: citizens, freedom of information, journalism, virginia

Asking Citizens What They Want Out Of Copyright Law Is Really Just A 'Tactic To Confuse'?

from the oh-really? dept

One of the more stunning realities that has become clear in watching the entertainment industry, as it responds to people who are actually impacted by ever more draconian copyright laws, is the fact that the industry doesn't view other positions as worth hearing at all. To the industry, copyright law has one purpose and one purpose only: to protect the big players in the content making business. Everyone else is secondary. Unfortunately, those big industry players have powerful lobbyists. That's why it was so nice to see Canada at least hold an open process to hear from the public. Of course, we were skeptical if those voices would really be heard, and stories about the industry itself stacking the deck at public gatherings did not bode well.

Separately, with so much pressure coming from other countries, we wondered if Canada would be able to resist implementing ever more draconian copyright laws, which would be a serious drain on the Canadian economy. So far they have resisted, but the pressure from outside continues to be fierce. We recently noted that US lobbyists and lawyers were insisting that Canada needed to be dragged into the 21st century, and now European trade negotiators are pushing hard on Canada to change its copyright laws despite no actual evidence of any problem with existing laws.

But what's most troubling of all is that these trade reps don't seem to care at all what Canadian citizens had to say. Despite receiving thousands of well-argued, well-thought-out statements concerning Canadian copyright law, EU trade negotiators are dismissing the whole process as "a tactic to confuse." To confuse who? About what? Holding an open discussion with citizens, rather than just backroom deals to protect a small group of companies? I'd argue that's the very opposite of a tactic to confuse, but rather it's a tactic to enlighten.

Filed Under: canada, citizens, consulations, copyright, eu, public

Who's Easier To Intimidate: A Newspaper In Need Of Advertising... Or A Group Of Concerned Citizens?

from the just-asking dept

As newspaper folks continue to insist that only newspapers can really do investigative reporting, their reasoning just doesn't hold up to scrutiny. The latest is publisher (not radio host) Alex Jones who suggested in a recent interview that we need big news organizations to do investigative reporting, because the subjects of those reports are likely to try to intimidate the investigators and only a big organization can stand up to that sort of intimidation. However, Tim Lee points out why that doesn't make much sense, and why a group of concerned citizens is probably a lot less likely to be intimidated than a single organization. It's the same basic theory as the difference between a distributed system and one with a single point of failure:

Jones gets the implications of this story completely backwards. It's only because newspapers are large, profitable, commercial enterprises that the kind of intimidation techniques he talks about work at all. Imagine it's 2020 and the Idaho newspapers have all gone out of business, and they've been replaced by several hundred bloggers, most of them amateurs. A whistleblower discovers some evidence of wrongdoing by a prominent Mormon official. Is it easier or harder for the whistleblower to get the word out?

Obviously, it's easier. She can anonymously email the evidence to a dozen different bloggers. Those bloggers don't have to all prepare long "investigative journalism" write-ups; some of them can just post the raw documents for others to look at. Once they're widely available, other bloggers can link to those raw documents and provide commentary. The official being criticized has three big problems. First, taking legal action will be vastly more expensive because he'd have to sue dozens of bloggers rather than just one newspaper. Second, many of those bloggers won't have any assets to speak of, so he's unlikely to recover his legal costs even if he wins. And finally, if he foolishly presses forward, he'll discover our friend the Streisand Effect: the fact that he files the lawsuit will cause a lot more people to cover the original allegations.

Likewise, the threat of a boycott only works because newspapers are for-profit operations with significant overhead. Threatening a boycott against, a blogger who writes in a his free time is no threat at all.

As if to prove this very point, there were stories this week about a newspaper columnist being fired (and, yes, the newspaper disputes some of the details) for writing a column that highlighted an investigation of a major advertiser in the newspaper. Oh, and what has the fired guy done? He's gone and set up his own blog. Again, none of this is saying that professional reporters and news organizations aren't an important part of journalism -- but the idea that no one else can do what they do is just silly.

Filed Under: bloggers, citizens, intimidation, investigative journalism, newspapers