Wednesday, March 21, 2012

Update: Secret Patriot Act Provision and Domestic Spy Drones

There are two articles I want to alert readers to that directly touch upon two topics I've written about at length on this blog in the past: The Patriot Act and domestic spy drones.

It was June of last year that I wrote an op-ed for the California Progress Report entitled "The Patriot Act and the Quiet Death of the US Bill of Rights" (piece was also picked up by Alternet, Common Dreams, and other outlets) in which I touched on concerns being raised by a few Senators regarding a "secret Patriot Act provision". I wrote:

"Of equal concern is what we still don’t know about how the government might be using the Act, highlighted by recent statements made by US Senators regarding what they termed “secret Patriot Act provisions”. Senator Ron Wyden (D-OR), an outspoken critic of the recent reauthorization, stated, "When the American people find out how their government has secretly interpreted the Patriot Act they will be stunned and they will be angry." As a member of the Senate Intelligence Committee Wyden is in a position to know, as he receives classified briefings from the executive branch.

In recent years, three other current and former members of the US Senate - Mark Udall (D-CO), Dick Durbin (D-IL), and Russ Feingold (D-WI) - have provided similar warnings. We can't be sure what these senators are referring to, but the evidence suggests, and some assert, that the current administration is using Section 215 of the Patriot Act - a provision that gives the government access to "business records" - as the legal basis for the large-scale collection of cell phone location records.

The fact that in 2009 Sprint disclosed that law enforcement made 8 million requests in 2008 alone for its customer’s cell phone GPS data for purposes of locational tracking should only add to these legitimate privacy concerns."

I bring this up today because two of those Senators are back again, raising those SAME concerns, over that same provision (Section 215), to the Justice Department and the Administration.

The New York times reports: 

For more than two years, a handful of Democrats on the Senate intelligence committee have warned that the government is secretly interpreting its surveillance powers under the Patriot Act in a way that would be alarming if the public — or even others in Congress — knew about it.

On Thursday, two of those senators — Ron Wyden of Oregon and Mark Udall of Colorado — went further. They said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained.

The senators, who also said that Americans would be “stunned” to know what the government thought the Patriot Act allowed it to do, made their remarks in a letter to Attorney General Eric H. Holder Jr. after a Justice Department official last month told a judge that disclosing anything about the program “could be expected to cause exceptionally grave damage to the national security of the United States.”

The Justice Department has argued that disclosing information about its interpretation of the Patriot Act could alert adversaries to how the government collects certain intelligence. It is seeking the dismissal of two Freedom of Information Act lawsuits — by The New York Times and by the American Civil Liberties Union — related to how the Patriot Act has been interpreted.

The senators wrote that it was appropriate to keep specific operations secret. But, they said, the government in a democracy must act within publicly understood law so that voters “can ratify or reject decisions made on their behalf” — even if that “obligation to be transparent with the public” creates other challenges.

“We would also note that in recent months we have grown increasingly skeptical about the actual value of the ‘intelligence collection operation,’ ” they added. “This has come as a surprise to us, as we were initially inclined to take the executive branch’s assertions about the importance of this ‘operation’ at face value.”

What we have here is a dual interpretation debate over this provision. We know for instance, that it allows a secret national security court to issue an order allowing the F.B.I. to obtain “any tangible things” in connection with a national security investigation - which include what is referred to as the “business records”  like say hotel or credit card records.

But in addition to that kind of collection, what these Senators appear to be contending is that the government has also interpreted - secretly - that this provision allows some other kind of activity to obtain private information about people who have no link to a terrorism or espionage case.

 This is say the least. As I thoroughly documented in my original op-ed, "The Patriot Act was sold as an indispensable weapon in the government’s arsenal to fight and “win” the “War on Terror”. We were assured that the sole purpose of these unprecedented powers granted government were to locate and catch terrorists - not raid the homes of pot dealers and wiretap peace activists. Monitoring political groups and activities deemed “threatening” (i.e. environmentalists, peace activists), expanding the already disastrous and wasteful war on drugs, and spying on journalists isn’t about fighting terrorism, it’s about stifling dissent and consolidating power – at the expense of civil liberties.

How ironic that the very “tool” hailed as our nation’s protector has instead been used to violate the very Constitutional protections we are allegedly defending from “attack” by outside threats. What was promised as a “temporary”, targeted law to keep us safe from terror has morphed into a rewriting of the Bill of Rights.

John Whitehead explains: The Patriot Act drove a stake through the heart of the Bill of Rights, violating at least six of the ten original amendments–the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments–and possibly the Thirteenth and Fourteenth Amendments, as well. The Patriot Act also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience were considered potential terrorist acts, thereby rendering anyone desiring to engage in protected First Amendment expressive activities as suspects of the surveillance state.”

I would urge EVERYONE to not just continue to demand this Act be repealed, but also to demand what in fact this secret interpretation is, and for what purposes is it being used.

With that said, let's move on to another disturbing new development in the dismantling of our civil liberties: the now LEGAL use of domestic drones to spy on innocent American citizens. I recently documented this story in a blog post entitled "Domestic Spy Drones Approved by Congress".

I want to update you on this story because a fellow privacy advocate - Ryan Calo - recently penned an op-ed on this topic, making some important additional points to those I have, in particular, citing the precedent set by the historic GPS tracking case (which I have also covered in detail here) United States v. Jones.

In Wired magazine, he writes, "The Electronic Frontier Foundation is suing the FAA to release records of who has asked for permission to use drones. The ACLU recently issued a report on drones and privacy. The D.C.-based Electronic Privacy Information Center filed a petition asking the FAA to consider privacy as the agency opens American skies to unmanned flight.

It is easy to see why these and other groups are concerned: It turns out that there is very little in American privacy law that would prohibit drone surveillance within our borders.


The prospect of excessive surveillance through technology was recently front and center in United States v. Jones — a case before the Supreme Court involving global position systems. Every one of the nine justices agreed that the police need a warrant before affixing a GPS device to a car and following a suspect for a prolonged period, even where the defendant’s movements take place entirely in public.

And yet for the majority, it was ultimately the act of physically attaching the device to the car that triggered the warrant requirement. Drones can follow a car without the need to attach anything.

Jones is getting a lot of attention. The FBI reportedly turned off thousands of GPS devices in response to the ruling. There is a second case before the Supreme Court right now, however, that has yet to raise red flags in privacy and technology circles.

In Florida v. Jardines, the nation’s highest court will consider whether the police need a warrant before a dog can sniff your house. Dogs can already sniff your bags at the airport or your car at a checkpoint on the theory that no human searches through your belongings unless and until the dog detects contraband — at which point your expectation of privacy is no longer considered reasonable.

The question before the Court in Jardines is whether officers suddenly need a warrant because the container being sniffed happens to be your house.

The conceptual leap from dogs to drones is shorter than you might think. As Burkhard Bilger recently wrote in a New Yorker piece about the NYPD’s K9 unit: “Canine police tend to talk about their dogs as if they were mechanical devices. They describe them as tools or technology.”

Police may not peer into the interior of a house using thermal imaging. But perhaps they could equip a drone with thermal or chemical sensors and let it loose to roam a neighborhood in search of invisible infractions such as indoor marijuana. No human would have to see the data unless or until the drone spotted a violation.

The wrong decision in Jardines makes this and similar surveillance scenarios uncomfortably plausible. Drones are a versatile technology. They have great potential to assist in investigations, scientific research, disaster relief and countless other human pursuits. But the FAA needs to take seriously the legitimate concerns of civil-liberties groups, lest our privacy go to the dogs.

As I wrote in my blog, the "GREAT Jim Hightower frames this attack on privacy the best when he wrote:

"Look, up in the sky! Neither a bird nor Superman, the next must-have toy for assorted police agencies is the unmanned aerial vehicle, better known as drones. Yes, the same miniaturized aircraft that lets the military wage war with a remote-controlled, error-prone death machine is headed to your sky, if the authorities have their way. Already, Homeland Security officials have deployed one to a Texas sheriff's office to demonstrate its crime-fighting efficacy, and federal aviation officials are presently proposing new airspace rules to help eager departments throughout the country get their drones.

But airspace problems are nothing compared to the as-yet-unaddressed Fourth Amendment problems that come with putting cheap, flying-surveillance cameras in the air. As usual, this techno-whiz gadget is being rationalized as nothing more than an enhanced eye on crime. But the drone doesn't just monitor a particular person or criminal activity, it can continuously spy on an entire city, with no warrant to restrict its inevitable invasion of innocent people's privacy. Drones will collect video images of identifiable people. Who will see that information? How will it be used? Will it be retained? By its nature, this is an invasive, all-encompassing spy eye that will tempt authorities to go on fishing expeditions. The biggest question is the one that is not even being asked: Who will watch the watchers?."

We would do well to - sooner rather than later - to recognize the inherent and fundamental value that privacy provides ANY claimed democracy. Without one there can not be the other..

Stay tuned...

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