Thursday, February 25, 2010

Patriot Act Renewal, Whole-Body-Imaging, and Cell Phone Tracking

In my effort to deal with the two pronged problem of having no time AND finding three important privacy related stories to discuss today, I'm just going to include some links and info on each topic in one post.

The Patriot Act Extended by the Senate

That's right...the DEMOCRATIC Senate not only voted to renew one of the most egregious legislative assaults on the Constitution ever enacted - a law Democrats promised to reform if not outright end - but what few privacy protections that had recently been added were stripped at the last minute. My "outrage meter" is broken from overuse in recent months.

I have written in painstaking detail about this Act, and the Senate Judiciary Committee's initial attempts to improve it. In fact, I was extremely critical of it BEFORE what few additional protections were stripped!

Instead, the Senate voted to reauthorize three expiring provisions of the Patriot Act adopted just after the September 11th attacks. As I wrote in the past, also not widely reported was the fact that President Obama worked behind the scenes to ensure that absolutely no meaningful reforms to the Act were adopted...essentially a complete reversal of his positions as a Senator and Presidential candidate.

Though Senators Feingold and Durbin put up an admirable fight on a variety of fronts in Committee, it approved allowing broad warrants to be issued by a secretive court for any type of record, from financial to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation.

The Senate also renewed the so-called “roving wiretap” provision, allowing the FBI to obtain wiretaps from the secret court, known as the FISA court, without identifying the target or what method of communication is to be tapped.

Finally, the so-called “lone wolf” measure that allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist was also approved.

The already very limited privacy protections that were agreed upon by the Judicial Committee that were dropped were the requirement that the government publish audits, including how many times the Patriot Act’s provisions were used, including the number of targets. Much of the government’s public reporting on the topic has been voluntary, and very little is known about how often each power has been used and why.

Another change centered on library records. In order to obtain warrants for them from the FISA court, the new plan requires a tangential connection to a terror investigation or foreign power. The expiring version does not.

The Judiciary Committee bill would also have restricted FBI information demands known as national security letters and made it easier to challenge gag orders imposed on Americans whose records are seized.

And want to know the excuse offered by Senator Leahy why even those modest protections didn't make it into the final product? Get a vomit bag read, he said ""I would have preferred to add oversight and judicial review improvements to any extension of expiring provisions in the USA Patriot Act. But I understand some Republican senators objected."

God forbid protecting the Constitution and the privacy of the American people if some Republicans object!!

Congress to Address Cell Phone Tracking

Here's another topic I've been zeroing in on a lot lately. As I wrote just two weeks ago, the issue at hand is over what the proper legal standard should be when prosecutors demand cell phone location data.

A little case history first: Last April, the Washington Post reported that while serving as a U.S. attorney during the Bush administration, Christopher Christie tracked the whereabouts of citizens through their cell phones without warrants. The ACLU obtained these documents from the Justice Department in an ongoing lawsuit over cell phone tracking. While the documents reveal 79 such cases on or after Sept. 12, 2001, they do not specify how many of the applications were made during Christie's tenure.

Tracking without a warrant disregards an internal U.S. Justice Department recommendation that prosecutors obtain probable cause warrants before gathering location data from cell phones. Of the cases in which probable cause wasn't established, documents showed 19 allowed the most precise tracking available. Those cases occurred after the November 2007 Justice Department recommendation that prosecutors seek warrants.

Documents released by the ACLU have also shown that of the states randomly sampled, New Jersey and Florida used GPS tracking without obtaining probable cause or warrants. Four other states, California, Louisiana, Indiana, Nevada and the District of Columbia reported having obtained GPS data only after showing probable cause.

Those documents were part of the ongoing lawsuit by the ACLU and Electronic Frontier Foundation on how the government tracks cell phone users. As these two privacy protection stalwarts argued in those cases, government tracking without a probable cause or warrant is a violation of the Constitution's Fourth Amendment, which guards against unreasonable search and seizure. Government prosecutors have argued that only a court order showing the tracking data is relevant to a criminal investigation is needed.

On that front, Congressional hearings regarding impending privacy legislation typically have focused on behavioral ad targeting, but location-based mobile targeting could be regulated, too. Two congressional subcommittees met this morning to discuss location-based technologies and their impact on consumer privacy and safety.

From Several witnesses agreed that use of location-based mobile data must be dealt with by privacy legislation expected to be proposed sometime this year. Among their concerns is the need for privacy controls to not only be present, but easily accessible to consumers. The familiar phrase of "notice and consent" - one that's become common during hearings on behavioral ad targeting - was mentioned throughout the discussion.

While some lawmakers cautioned that any new rules must not hamper industry innovation or benefits of geographic data usage to consumers, at least one legislator suggested personal privacy is more important than business in some cases.

But perhaps of more interest, was an article in entitled Cell Phone Tracking: The New Constitutional Crisis. William Fisher writes:

If you own a cell phone, you should care about the outcome of a court case that "could well decide whether the government can use your cell phone to track you - even if it hasn't shown probable cause to believe it will turn up evidence of a crime."

That was the warning issued to the public by several major civil liberties organizations as they appeared in federal court in Philadelphia to argue for more privacy protections in the use of cell phones as tracking devices by law enforcement agents.

The case is at the heart of the constitutional crisis now being played out in the US federal court. Civil liberties groups are asking the court to require that the government show probable cause before it can track your whereabouts.


The plaintiffs in the court case hope the court will "send a message that merely carrying a cell phone should not make people more susceptible to government surveillance." They add, "No one wants to feel as if a government agent is following her wherever she goes - be it a friend's house, a place of worship, or a therapist's office - and innocent Americans shouldn't have to feel that way."

The government has argued that "One who does not wish to disclose his movements to the government need not use a cellular telephone." But the civil liberties groups say this is "a startling and dismaying statement coming from the United States. The government is supposed to care about people's privacy. It should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool."


Two years ago, a US magistrate in Pittsburgh ruled that the data they were seeking could easily be misused to collect information about sexual liaisons and other matters of an "extremely personal" nature.

In federal appeals court last week, a Justice Department lawyer urged the judges to overturn the magistrate's ruling. They claimed the government was seeking "routine business records."

But after one of the judges said there were some governments, like Iran's, that would like to use such records to identify political protesters, she asked whether the "government can assure us" that the Justice Department would never collect cell-phone data for this kind of use in the US. The government lawyer grudgingly acknowledged that such data "could be used constitutionally."

EPIC wants TSA to halt implementation of body scanners at airports

FROM ZDNET: In a letter sent to the White House, the Electronic Privacy Information Center (EPIC) President Marc Rotenberg, along with Ralph Nader, request that body scanner technology be halted until several health, safety and privacy issues are resolved.

Body scanner devices have been deployed at 18 different airports in the U.S. and should be implemented at all international airports by the end of this year. One of the key concerns EPIC has is privacy and how images could be stored. The same issues were raised in Canada during pilot testing of similar body scanning devices. In a
Privacy Impact Assessment (PIA), investigators asked many of the same questions EPIC is concerned with.

You can also read my article, "The Politics of Fear and "Whole-Body-Imaging"

No comments: