WE Will Build the Roads
I’m trying something new with the From Me to You column this week, and I’d love to get your feedback on it. Please send me an e-mail to let me know if you like this, hate this, or even if you’re indifferent.
I’m trying something new with the From Me to You column this week, and I’d love to get your feedback on it. Please send me an e-mail to let me know if you like this, hate this, or even if you’re indifferent.
In Oakland, California, feds were caught helping local police departments to spy on suspects without warrants. And in at least one instance, the individual targeted, Purvis Ellis, wasn’t even the main suspect in the murder case that led to his capture.
According to Tech Dirt, court documents obtained by Ars Technica show that the Oakland Police Department used stingray technology without seeking a warrant first against Ellis in 2013. The use of the device was deployed in order to catch the suspect who had been associated with the attempted murder of officer Eric Karsserboom.
According to the American Civil Liberties Union (ACLU), stingrays “are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information.”
Oakland police attempted to use an older version of the device in 2013 to find one of the suspects in the attempted killing of a police officer, but officials were unsuccessful. They then reached out to the Federal Bureau of Investigation (FBI), asking federal agents to step in. Promptly after, FBI officials were able to locate the suspect using a more advanced stingray technology.
But despite the successful operation, state and federal officers failed to follow the constitution, ignoring the need for a warrant.
During the suspect’s trial, both the FBI and the Oakland PD stated that they didn’t need to obtain a warrant at the time due to “exigent circumstances.” In the FBI case, officials also claim the warrant requirement was not in place at the time of the operation, making the evidence obtained through surveillance tactics less likely to be tossed by a judge.
Nevertheless, news sources were finally able to report on this story since the judge presiding over the suspect’s prosecution ordered the government to submit detailed information on how Ellis was located. But despite the commotion surrounding Ellis, he has not been accused of actually shooting the officer, prompting privacy advocates to wonder whether the police has used the same surveillance tactics in other similar cases, targeting individuals who have not been accused of a crime and going to the lengths both the FBI and the Oakland PD went to keep this a secret.
Two years after the 2013 incident, the Oakland Police Department tried to secure a grant from the Department of Homeland Security in order to upgrade their stingray technology, suggesting that local police had been invested in this type of surveillance tactics long after the Ellis case. The technology local officials had at the time was unable to locate the suspect, but the latest system used by the FBI got the job done pretty quickly.
But details regarding why the suspect was targeted and why only his phone was intercepted were never revealed. All we know up until now is that two law enforcement agencies suspended the potential suspect’s rights to privacy, even as they knew that he hadn’t shot the officer.
Whether Ellis was directly involved in the attempted murder remains a mystery. But what should also be addressed in this case is the fact that individuals who haven’t been formally accused of a crime nor charged are being targeted by both local and federal law enforcement agents who continue to ignore the unconstitutionality of their actions.
States have been pushing their own anti-federal surveillance laws as the nullification movement initiated by groups like the Tenth Amendment Center gains more ground. But the American individual’s privacy rights won’t be truly upheld until federal agencies have been stripped of their surveillance powers.
California has just taken another step to nullify a federal rule over its unconstitutional nature.
According to the Tenth Amendment Center, the California Assembly passed a bill that would keep state officials from using civil asset forfeiture to seize private property without due process while also effectively preventing federal agents to do the same in the Golden State.
Senate Bill 443 was introduced last year, and it was a response to the growing trend against civil asset forfeiture taking over the country. Organizations like FreedomWorks and Tenth Amendment Center are some of the leaders in this area, helping state legislators have access to reform ideas that render the federal rules unenforceable.
According to the libertarian justice firm Institute for Justice, civil asset forfeiture is “legal plunder,” because the practice gives federal and state law enforcement agencies the power to take a person’s property or assets, even if the owner hasn’t been arrested or convicted of a crime.
After passing the state Senate last summer, the bill failed in the Assembly. But once Assemblyperson Chris Holden made a motion to reconsider, the bill was placed in the inactive file and then brought up for a vote in the full Assembly on August 15.
If the bill is signed into law by Governor Jerry Brown, the loophole in California law that allows officers to refer to federal agents in civil asset forfeiture cases in exchange for a portion of assets seized will be gone. Equitable sharing has been the only issue with California’s civil asset forfeiture laws, which are considered to be some of the strongest in the country. But up until now, the local protections against the practice meant nothing if federal agencies were involved.
Between 2000 and 2008, federal agents doubled their equitable sharing earnings. By the end of 2008, state officials across the country had helped the federal government seize about $400 million through the program.
With SB443, state prosecutors would be prohibited from going around restrictions imposed on state officials by passing cases off to the federal government. While this is good news, the bill still isn’t perfect.
If the amount seized is above $40,000, SB443 would allow state prosecutors to refer to federal officials under the equitable sharing program. The state could also have access to a portion of the assets seized if the owner of the property is convicted in a related criminal activity.
Despite its potential shortcomings, SB443 goes a long way to roll back federal intervention in local law enforcement activities, removing the financial incentive often tied to the practice.
Will other states follow?
Great Britain’s compulsory purchase orders are the equivalent of America’s eminent domain laws. These powers give UK government bodies the ability to retain property even if the property owner is reluctant to give it away.
Much like eminent domain laws in America, certain UK bodies are allowed to obtain these properties by claiming that the land should be used for “public betterment.” But whether or not government is allowed to exercise this power if compensation is provided shouldn’t be the crux of the matter because value is subjective.
Ludwig von Mises wrote in Human Action that value “is not intrinsic, it is not in things. It is within us; it is the way in which man reacts to the conditions of his environment.” So if a man finds value in his land, even if he is being compensated for leaving against his will, the action imposed by the governmental body forcing him out is, indeed, immoral. Because value, Mises adds, “is not what a man or groups of men say.” It’s how they act that counts. Even if you agree with the government’s rationale, taking a man’s land against his will is inhumane. After all, Mises adds in The Anti-Capitalist Mentality, “there is no yardstick to measure the aesthetic worth of a poem or of a building,” so who are we to judge what is or isn’t valuable to an individual?
But history is full of anecdotes that teach us that much and yet we ignore it. Allowing generation after generation to place bureaucrats in charge of telling us what our most sacred rights truly mean.
Take the story of a village formerly known as Tiham, but which is now referred to as Tyneham.
In 1943, Tyneham and the neighboring area residents were asked to leave. They were given 28 days to walk away from their homes so Allied forces could use the place as a post where they would train for the D-Day landings.
As villagers left with the belongings they could carry, villager Helen Taylor waited until the very end, posting a note on the door of the limestone church of St Mary that read “We shall return one day and thank you for treating the village kindly.”
As villagers left believing they would one day come back, government later proved them wrong. The 13th Century church endured, but folks like Taylor would never have the pleasure of holding mass there as a community again.
In 1948, the Army resorted to compulsory purchase order laws and put a hold on the village and its standing properties, claiming soldiers needed the place for military training. Up until this day, that’s what the village and its remains are used for. Now, littered with scrap and shells from decades of target shooting, only dead former members of the village are allowed to come back to be buried in the churchyard.
The image of a concerned villager asking soldiers to treat her home well may have vanished from English people’s memories, but the message remains the same. What right does a man have if not to do what he pleases with his own property? Stripping citizens from their belongings under the guise of fighting for peace may sound honorable, but in practice, all that is often left behind is garbage—and heartbreaking memories.
It’s no secret that Pokemon Go, the augmented-reality game, is currently one of the most popular apps in the country. But as users become involved in accidents due to their outdoor adventures trying to catch Pokemon characters, reports related to individuals being chased away and at times even shot at for trespassing are also becoming more common.
Now, a man from New Jersey is escalating the fight against Pokemon trespassers by suing the company behind the game—not the actual players. If he has it his way, individuals who own property listed as a Pokestops or Pokemon gyms in the app could be added to the list of plaintiffs.
According to the suit, Pokemon Go encourages players to go after Pokemon characters placed close to or at private properties without the owner’s consent. The suit also states that at least five individuals approached the plaintiff asking if they could have access to his backyard in the past. Interestingly enough, the suit alleges these individuals knocked “without plaintiff’s permission,” confusing anyone who believes that knocking and formally asking for access means that he was properly approached and that his property was never trespassed against.
To players, however, the concern brought up by the New Jersey man may seem illegitimate since the system alerts users they should not trespass, warning that attempting to gain or gaining “access to any property or location where you do not have the right or permission to be” should be out of the question.
Despite the warning, Niantic Labs, Nintendo, and The Pokémon Co. have all been named in the suit. California’s federal court should soon rule on whether the man who filed the complaint will be able to legally keep Pokemon hunters off his property.
The game, which has been downloaded more than 30 million times, generating over $35 million in revenue, continues to be both praised and criticized for the several consequences of its launch. But blaming the company behind the app for a potential trespassing incident might not have a positive outcome after all.
Pokemon Go players have an opportunity to learn a thing or two about property rights and voluntary cooperation while playing, taking the example of other players who have been involved in delicate incidents while catching Pokemon into consideration while roaming the streets in search of new characters. Instead of putting the blame on the game, why not help players understand that playing safely can also be fun? All they have to do is follow the company’s instructions and play responsibly.
After all, suing Niantic Labs over risks potentially associated with the act of playing the game is like suing a weapon manufacturer for a potential gun injury incident that hasn’t even materialized.
Allowing players to take responsibility for their actions could be yet another reason to believe Pokemon Go is one of the best things about modern life.
Colorado, the state of legal recreational marijuana, may soon be able to kick the federal government’s erratic surveillance policies to the curb, proving that state nullification is worth the effort.
A bill signed into law earlier this year that has been active since May 11, 2016 applies state law rules to federal agencies, effectively barring agencies such as the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) from taking actions locally that infringe on certain rules. The result is important, since the refusal to enforce federal rules on Colorado soil means that federal acts that go against the Constitution could be thwarted.
The piece of legislation (HB1109) was a bipartisan effort that, according to Tenth Amendment Center’s Mike Maharrey, could help to put an end to federal efforts that infringe on Americans’ constitutional rights such as the National Security Agency’s mass surveillance programs. Since massive databases used by the NSA require a great deal of water to keep computer systems cool, refusing to provide resources to federal agents may help to prevent the expansion of the surveillance state.
This type of approach to federal laws has been upheld in court in the past.
In 2007, when the federal government sued the state of Nevada for refusing to give the Department of Energy (DOE) access to its water supply to build a nuclear waste disposal site on Yucca Mountain, US District Judge Roger L. Hunt ruled that the state of Nevada had a right to say no the federal government, basing his decision on the fact that state rights are protected and shouldn’t be violated by a federal agency.
Maharrey explains that the legal basis for this refusal to cooperate is known as the anti-commandeering doctrine, which came to be due to four Supreme Court cases, including the Printz v. US from 1842 that serves as the doctrine’s cornerstone.
The anti-commandeering doctrine reassures the states that they are free to refuse to cooperate, while also making it clear to the federal government that its agents are prohibited from forcing state officials to comply. If Colorado is able to use its water rights to thwart the growth of programs that effectively infringe on our constitutional rights, that means that other states may join the effort.
Recently, Louisiana took an important step toward hindering the surveillance state by passing a law that requires a court order for the use of stingray technology, which is often used by law enforcement to track the location of phones and give officers access to their contents. The law is now into effect.
Illinois has also passed a very similar bill, which will go into effect on January 1, 2017. According to the bill’s wording, stingray technology use will also be restricted by court orders. But the bill goes further by prohibiting the use of the technology to gather the contents of phones targeted by law enforcement. Instead, officials with a warrant will only be able to use the stingray system to track the location of a device or identify it as a communications device, effectively protecting the individual’s conversations.
Airbnb, the short-term rental app, has recently agreed to go along with officials in Los Angeles by requiring users to collect hotel taxes from their clients. The three-year agreement was signed early this week. And according to LA city officials, money collected by Airbnb in Los Angeles would bring $5.8 million in annual revenue.
As City Council members discussed what to do with Airbnb in the past few months, the company lobbied its users to stand up against suffocating regulations in a series of emails sent out regularly.
In one of these emails, Airbnb explained that the LA City Planning Commission was considering putting a 90 day cap on the number of nights Airbnb hosts can list their space, a rule Airbnb called “restrictive and arbitrary.” City officials were also considering limiting the number of listings hosts can have, which could affect users who have more than one room to rent, and instituting a registration procedure that would render the process of hosting through Airbnb difficult and expensive.
Another rule LA city officials had considered would also force Airbnb to turn over users’ personal information to the authorities, giving them information on how many nights a host books through the site and how much money renters make. Airbnb warned its users that the city did not detail how this information could be used.
Accusing property owners of evicting tenants to turn their properties into “commercial hotel and motel businesses,” Councilman Mike Bonin was one of the first in Los Angeles to propose Airbnb regulations. But while it is true, many users have, in fact, evicted their tenants in order to list their properties on Airbnb, that alone is not an excuse to regulate Airbnb out of existence. After all, the system works because it’s still affordable.
To tourists looking for an affordable accommodation option, the extra financial burden tied to the hotel tax could mean that renting through Airbnb might not be that affordable after all. To those who use the service as renters to make ends meet, being part of Airbnb may not be as appealing if rates are high because of the new rules.
In an article for US News, Mercatus Center’s Matthew Mitchell urges regulators to “deregulate traditional industries” if their goal is to help all industries and local businesses thrive. Instead of regulating the sharing economy and stifling competition, deregulation could also make it easier for visitors to stay and spend money locally.
Airbnb’s decision to go along with Los Angeles city officials may represent the company’s willingness to compromise, but a real solution to this dilemma will only be produced when lawmakers are honest about their goals.
After all, regulation will always makes things difficult for the consumer and the businessman, no matter how you slice it.
In current-day America, the Constitution’s protections against unreasonable searches and seizures by the government is nothing but a suggestion. In Arizona, the careless approach to the law of the land is now even backed by lady Justice.
According to an NBC affiliate, a recent ruling supports that officers are allowed to have access to a warrant to search a person’s property over the smell of marijuana. The decision came after the state Supreme Court ruled that the enactment of the medical marijuana law does not eliminate a legal doctrine that supports that the smell of marijuana is sufficient to establish probable cause for a search.
The Arizona Supreme Court ruling added that only with the “person’s presentation of a valid [medical marijuana] registration card” attorneys would be able to challenge the legal foundation for a search based on the smell of marijuana alone.
The case that resulted in this ruling involved an officer who noticed the odor of marijuana while contacting an individual. The encounter led him and other officers to discover a marijuana operation that counted with hundreds of marijuana plants.
To medical marijuana users in the state, this ruling is concerning. Rebecca Calloway, a local dispensary worker and college graduate with a medical marijuana card, says that this ruling makes matters worse since “a lot of pedestrians [already] feel they are being harassed by cops with nothing better to do.”
To privacy advocates, the ruling gives officers a loophole, giving them the freedom to use smell as a reasonable cause for searches in different occasions.
Instead of looking at the Constitution for guidance, the Arizona justices decided to continue giving drug warriors legal justifications to send more non-violent “criminals” to taxpayer-funded prisons, managing to step on the 4th Amendment rights of citizens who do not happen to be marijuana users in the process. But this is not the first time Arizona justices stand with drug warriors.
In May, Arizona Supreme Court ruled that the state’s medical marijuana laws do not give physicians immunity against prosecution in case doctors claim to have reviewed a patient’s medical records from the previous 12 months before issuing a written statement allowing for the use of medical marijuana.
While the state has come a long way by passing a medical marijuana law that helps residents suffering from a series of conditions including Alzheimer’s disease, cancer, chronic pain, glaucoma, and others, anti-drug war advocates in the state are hoping to get an initiative added to the November ballot that would legalize marijuana for recreational use.
In early July, the Campaign to Regulate Marijuana Like Alcohol submitted 258,582 signatures to secretary of state officials. To quality for Arizona’s statewide ballot, the campaign must have 150,642 valid signatures from registered voters.
If passed, the Regulation and Taxation of Marijuana Act would legalize marijuana for recreational use and establish a network of licensed cannabis shops that would collect taxes on the sales of marijuana and marijuana-related products. The proposal resembles the model used in Colorado.
When discussing the ongoing surveillance programs run by the US government’s National Security Agency (NSA) in 2013, Dr. Ron Paul said that “the Fourth Amendment is clear; it says we should be secure in our persons, houses, papers and effects, and that all warrants must have probable cause.” But while Dr. No from Texas has always been a consistent defender of liberty, few other members of any of the branches of government can say they take the task of upholding the US Constitution seriously. Recently, yet another powerful group in Washington joined Congress and the Executive branch by using its political power to ravage the 4th Amendment: the Supreme Court.
In a 5 to 3 ruling of the Utah v. Strieff case, the Supreme Court decided that police officers are allowed to stop anyone without probable cause, going against restrictions imposed by the 4th Amendment of the Constitution. What TechDirt calls “bogus traffic stops predicated on nonexistent laws” is now protected thanks to the Supreme Court, causing the reach of these same stops to be expanded to individuals on foot as well.
But while this decision is damaging because it expands the police’s unchecked powers, the factors that prompted the stop that led to this case in the first place are being widely ignored.
In 2006, the Salt Lake City policy received an anonymous tip concerning a drug activity hotspot. An officer was sent to monitor said hotspot, noticing that, for several days, the house in question received a high volume of foot traffic. One of the individuals seen entering and leaving the property was Edward Strieff, who was stopped by an officer while on his way to a convenience store.
During the so-called routine check after he encounter, police found Strieff had an outstanding “small traffic warrant,” prompting the officer to arrest him and search him. That’s when the officer found a bag of methamphetamine, as well as drug paraphernalia, in his pockets.
What prompted the unconstitutional stop, and then search, wasn’t just due to police abuse. Instead, the drug war was what prompted the anonymous caller to reach out to law enforcement, and before that, what prompted the black market to provide Salt Lake City customers with the products they wanted.
According to TechDirt, the evidence found on Strieff should have been suppressed in court since the officer stopped the individual without probable cause. The state of Utah had already conceded to that much, but once it decided the case should be appealed, Utah v. Strieff made it to the highest court in America, where the justices decided that the “fruits of the illegal search” should remain unsuppressed. To TechDirt writers, this decision gives the government precedent, giving law enforcement agencies across the land even more expanded powers than they had before.
Instead of keeping Americans safe, the war on drugs has produced yet another unintended consequence, destroying our 4th Amendment protections and putting the lives of innocent individuals in danger in the face of police abuse. Isn’t that the opposite of keeping us safe?
Recently, the Government Accountability Office released a report on issues regarding “surreptitious tracking apps,” hoping to identify the problems with cellphone features used for stalking so that regulators and lawmakers are able to find policy solutions that protect the American consumer and his privacy.
The report, which can be read in full here, claims that the issue with most apps designed as tracking features is that they may intercept a smartphone’s communications, such as text messages, phone calls, and emails. Without the consent of those being tracked, GAO reported, their safety and privacy are at risk.
During a recent interview, GAO’s Physical Infrastructure Director Mark Goldstein said that while many tracking apps that offer services to parents who are concerned about their children’s whereabouts for instance have “legitimate purposes,” but many others are “marketed for what’s called surreptitious use, or where you’re not telling someone that you’re using their phone to track them, and this happens in a number of kinds of cases, for stalking and for other kinds of nefarious purposes.”
Without explaining what he meant by nefarious purposes, Goldstein went on to claim that the biggest safety issue with tracking apps available nowadays is that, if a tracker knows where you are, they “can stalk you, they can harm you.” And while “there are a variety of laws on the books, both at the federal level and at the state level that focus on different components of whether you can sell [these apps],” “millions of people report being stalked every year,” suggesting that whether the laws are in effect or not, it doesn’t matter—criminals will continue to do what they do, whether the law exists or not.
The solution, Goldstein explained, is a combination of government-backed efforts that would allegedly protect the citizen from abuse, regardless of how ineffective current laws are. These efforts include boosting the Department of Justice’s educational programs.
In the past, the DOJ launched the Stalking Resource Center, an agency that trains law enforcement officers, policymakers, victim service professionals, and others on the dangers associated with tracking technology. In 2012, reports claiming that the center did not offer any direct support to victims was mostly dismissed by mainstream media. But the program is still funded by taxpayer money.
According to Goldstein, law enforcement must also get a boost in order to effectively “prevent these things from happening and to penalize, obviously, and prosecute people who break the law in these areas.” Goldstein also added that producing more “legislative remedies” could also help to improve law enforcement effectiveness.
“The bottom line is,” Goldstein closed the interview by saying, “the technology brings us costs as well as benefits.” The fact an individual has access to a cell phone, the government employee claims, is enough to put him in danger. “As individuals,” he continued, ”we have to be alert to that, and as a government, we have to ensure that our citizens are able to use these kinds of devices without fear of something bad happening.”
Instead of micromanaging what app an individual uses on his or her phone, what GAO could have done instead to help protect American consumers was to also carry a research into whether the federal government’s spying programs are effective.
According to a White House-appointed review group as well as the nonprofit organization New America Foundation, NSA’s phone record collection has played an insignificant role in preventing terrorist attacks. But the effects of federal surveillance policies being used as we speak are not always neutral: abuse within the agency continues to put countless of innocent people—and their privacy—in danger.
But will GAO ever look into that? I doubt it.
Considering the recent flap regarding the restroom law passed in North Carolina (and being considered elsewhere), how would this be handled in a libertarian society?
In a libertarian society, most—if not all—bathrooms would be privately owned, since government would be very limited. Owners could decide who could use them and who could not.
If some business owners decided to discriminate on the basis of color, gender, or religion, their competitors would likely advertise their willingness to serve everyone, gaining the loyalty of the groups discriminated against. Profits would go up for those who were willing to serve all, while they’d go down for those who discriminated. Business owners would have to choose between their pocketbooks and their prejudices. Historically, most choose their pocketbook.
Indeed, segregation became law in the post-Civil War south precisely because businesses were serving the ex-slaves to an extent that caused resentment. Business owners who wanted to discriminate didn’t like losing their profits to their more open-minded competition. They, along with whites who wanted separate facilities, lobbied government to force businesses to segregate their facilities.
A government strong enough to ban discrimination is powerful enough to implement it as well. Those who wish to discriminate and those who don’t will lobby against each other for control. When private service providers decide who can and can’t use their facilities, people vote with their dollars to support the businesses that express their own viewpoint. No lobbying is necessary!
The fight ignited by Apple continues, as the feud between the tech industry and the US government warms up because Mozilla, the software company behind the popular browser Firefox, is now pressing the feds to disclose information pertaining to a potential security flaw.
Mozilla filed a motion with the US district court requesting information on potential Firefox vulnerabilities that could expose users and their data to major privacy infringement risks. The info was unearthed during a criminal investigation carried out by the FBI in which officials hacked into a Dark Web child pornography website in February 2015. During some time, the website was run by FBI officers from inside of a government facility in Virginia. But once the investigation was finalized, vulnerabilities that allowed for this hack were kept secret.
According to Mozilla, if the issues unearthed aren’t addressed by the tech companies, users’ privacy could be under attack. Since the Tor Browser is “built on the same base code as the open-source Firefox browser,” Mozilla believes the vulnerabilities should be shared with the group.
In Mozilla’s motion, the group claims that the government has “refused to tell Mozilla whether the vulnerability at issue in this case involves a Mozilla product,” prompting the company to inquire further in order to protect its users.
The fact the government used an exploit that hasn’t been unveiled makes government officials more likely to use the same artifice to “compromise users and systems running the browser,” a reality Mozilla seems to refuse to accept. According to Mozilla Corporation’s chief legal and business officer Denelle Dixon-Thayer, even the “judge in this case ordered the government to disclose the vulnerability to the defense team but not to any of the entities that could actually fix the vulnerability.” To the company, the judge’s decision makes no sense “because it doesn’t allow the vulnerability to be fixed before it is more widely disclosed.”
But as Tech Dirt has reported, once the judge ordered the FBI to turn over information on the hacking tool to the defense team, the feds refused. Instead of standing his ground, Judge Robert J. Bryan reversed course, allowing the FBI to keep the information under wraps.
According to Motherboard, the judge met with the government in order to learn more about the FBI’s reasoning in this case after the ruling, which prompted his decision to reverse his position. While Bryan “still thinks the defense has a reason to see that code,” he cannot ensure this will actually happen.
Tech Dirt believes there’s “a 0% chance of the FBI voluntarily turning this information over to the defense,” but Mozilla is pressing on anyway. Whether the FBI will be successful in keeping this information from the public is a matter of time.
What’s left to ask is: Why is the FBI so invested in keeping important information on data security from those who develop software that protect us from hackers?
In Vermont, legislators are beginning to fight the federal government’s power grab by passing legislation that would hinder federal surveillance programs.
If the Tenth Amendment Center is correct, the activism sprung from the growing anti-surveillance spirit sparked by NSA whistleblower Edward Snowden may have helped to push the Vermont legislature to pass a bill that would boost the state’s privacy protections in the state.
As it now stands, the bill’s text bans the warrantless use of stingray technology to track phone location, restricts the police’s use of surveillance drones, and keeps law enforcement from having warrantless access to user data from service providers.
Senate Bill 155, which was filed in December by Sens. Tim Ashe, Joe Benning, and Dick Sears originally addressed the state’s law enforcement’s use of drones by stipulating certain restrictions concerning the law enforcement’s data sharing and storage policies gathered through the use of Automated License Plate Recognition (ALPR) technologies. While in review, however, both the Senate and the House added amendments to S.155, limiting warrantless collection of electronic data and warrantless use of stingray devices. With the bill as it now is written, the ALPR law in the state could change significantly.
According to TAC’s Mike Maharrey, stingray programs are vastly funded by the US federal government, giving state and local law enforcement agencies extra incentives to make use of the intrusive technology, considering states don’t have to squeeze any extra funding to cover the use of these systems locally. But for agencies to have access to the technologies, the federal government requires agencies to sign non-disclosure agreements. As a result, prosecutors, defense lawyers, and even judges are kept out of the loop.
A recent trial demonstrated how these non-disclosure agreements hurt investigations.
According to an article on the Baltimore Sun, Detective Emmanuel Cabreja refused to answer questions when pressed to give information on the device used during the investigation. After the local detective cited a non-disclosure agreement, the judge threatened to hold him in contempt if the information wasn’t unveiled. Instead of caving in, prosecutors withdrew the evidence, which is what the feds instruct prosecutors to do in similar cases.
According to privacysos.org, the FBI often allows criminals to go unpunished rather than having to face “a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
While the federal government allows states to make use of these technologies under the guise of the war on terror, the technology is used primarily for routine criminal investigations, a fact that has been revealed by the Tacoma Police Department.
Maharrey argues that the federal government’s network of drones, which are funded by the American taxpayer, is increasingly cornering innocent individuals, infringing on their right to privacy, which is guaranteed by the US Constitution. With pieces of legislation like S.155, states may stand a chance at fighting the federal government’s overreach.
Both chambers have passed S.155, and the bill now awaits to be sent to the governor’s desk.
The need for transparency was an important talking point during the 2008 presidential elections, but once the current administration had an opportunity to handle information leaked by whistleblowers such as former NSA contractor Edward Snowden in a constitutional manner, making sure that the National Security Agency’s disregard for privacy was investigated, the Barack Obama administration decided to, instead, start one of the most effective anti-whistleblower campaigns in the history of the United States.
According to Tech Dirt, the current administration has prosecuted more whistleblowers than all other administrations combined. And what the most recent case of official mishandling of another NSA whistleblower proves is that officials are oblivious of what due process is all about.
Recently, Foreign Policy reported, another NSA whistleblower attempted to “go through the proper channels” in order to report issues she felt that should be addressed by her superiors. Instead of investigating her complaints, the FBI raided her house.
According to Foreign Policy, the FBI suspended the whistleblower’s clearances without giving her any reason. The publication also explained that she “wasn’t allowed at work, and for two years, the NSA made her ‘call every day like a criminal, checking in every morning before 8.’”
The report continues:
“[Elham] Khorasani went to the agency only for interrogations, she says: eight or nine sessions that ran at least five hours each. She was asked about her family, her travel, and her contacts.”
According to Khorasani, the “special” treatment she received from the FBI only came after the NSA whistleblower set up a meeting with Thomas Drake, another whistleblower prosecuted by the current administration. She had decided to meet with Drake in order to learn more on how she should proceed to make an effective complaint regarding what she calls an unfair reassignment. Once she contacted Drake, he explained that too much time had already passed, and that her efforts would be fruitless from that point on.
He allegedly told her that she had “the bull’s-eyes on” her. “You’re done.”
Khorasani’s story may have been covered by Foreign Policy, but countless others haven’t been pursued. Unfortunately, she’s not the only one to have suffered increased scrutiny over her decision to pursue proper channels in order to have her complaints investigated. According to Foreign Policy’s James Bamford, people under suspicion of misconduct such as Khorasani are often given a special red badge, which replaces the blue card used by employees and contractors with access to secure facilities.
This sort of scarlet letter, Foreign Policy reports, often forces employees to live in “purgatory.” During the entire process, they are never told why they are under scrutiny. And in many cases, they are given jobs inside the gardening department or at the NSA’s museum.
To Tech Dirt, the United States doesn’t have enough whistleblowers because the “proper channels” simply don’t work, which is what the Khorasani case shows us.
If more people within the US government had more incentives to speak out and more often, we would be able to hold our officials accountable. “Unrestrained power may be many things,” Edward Snowden wrote recently, “but it’s not American… We, the people, are ultimately the strongest and most reliable check on the power of government.”
If resistance to tyranny is what we’re looking for, Snowden contends, “Change has to flow from the bottom to the top.”
Drones are all the rage again, for very good reasons.
According to the Tenth Amendment Center, California legislators have taken an important pro-privacy stance by considering a bill that restricts warrantless drone surveillance in the Golden State. Assembly Bill 1820 would prohibit state and local law enforcement from using drones to spy on suspects without a warrant. The bill also helps to thwart federal surveillance, serving as what many like to call a nullification tool against the federal government’s intractable and unconstitutional thirst for control.
Introduced by Assemblyman Bill Quirk, a Democrat from California’s 20th district, AB 1820 unanimously passed a second Assembly committee last week. If signed into law, the piece of legislation would prohibit law enforcement from making use of drone surveillance over private property without a warrant while also establishing that, in some cases, the property owner must give officers express permission before the drone is launched. Weaponized drones could also be banned from the Golden State if AB 1820 were to pass.
While privacy advocates have reason to celebrate and hope for the best in this case, Tenth Amendment Center’s advocates are particularly excited about the bill’s impact on the federal surveillance state.
According to the organization’s blog, AB 1820 thwarts the federal government’s surveillance plans by keeping California from being tempted by the federal government’s perverse incentives.
Currently, funding for drones comes from the federal government. Once the handouts are transferred to state officials and drones are used in local investigations, information gathered by local officials is fed into fusion centers used in a federal program known as the Information Sharing Environment, which was created in 2004 as part of the country’s fruitless War on Terror. The information scored by ISE is then shared with other agencies. The fact some of this information is extracted in an unconstitutional and illegal fashion is never taken into consideration.
According to the Tenth Amendment Center, the federal government “encourages and funds a network of drones at the state and local level across the U.S.,” making the passage of this bill a step toward breaking the federal government’s influx of Californians’ personal data.
With the restrictions proposed by AB 1820, data available to the feds is limited, forcing them to attempt to get the data they need on their own. Without the resources from the states, the federal government is hit with a burdensome blow, effectively hurting the surveillance state and helping to protect your right to privacy.
While the bill is a step in the right direction, Tenth Amendment Center reports that it does allow for certain exceptions involving warrant requirements in emergency situations in which the use of an unmanned aerial vehicle could prevent immediate danger of death or injury to individuals. The bill also establishes that drones can be deployed over private properties in the event of natural disasters.
The Assembly Committee on Public Safety passed AB 1820 without a single nay while California’s Assembly Committee on Privacy and Consumer Protection passed the proposal 6-5. Now, the bill is expected to move to the Appropriations committee, where lawmakers will review the legislation.
If you only got your news from major publications such as the Huffington Post, you wouldn’t have learned that Senate Bill 1044, which was signed into law by Florida Governor Rick Scott this past Friday, does nothing to help Floridians protect their property from unlawful seizures from law enforcement agencies.
According to Tenth Amendment’s Mike Maharrey, the bill was a step in the right direction. But while the new law attempts to do the right thing, it doesn’t go far enough. It also fails to close the federal loophole that renders state reforms meaningless.
The bill also states that suspects must be formally prosecuted and convicted of a crime before asset forfeiture can be implemented. But due to the committee hearing process, Maharrey explains, the bill was somewhat diluted before the final text was sent to the governor’s desk.
Instead of applying the conviction requirements evenly, amendments added to the bill ended up trimming said requirements. Now, all that the law requires is an arrest before most assets are seized. To Maharrey, the fact the bill got a great deal of support from politicians from both sides of the aisles is proof that “reforms didn’t go as far as needed.”
But what the bill does get right can be easily neutralized by federal law.
The fact SB 1044 only restricts state agencies, Maharrey argues, gives local law enforcement officials and prosecutors a choice. Instead of taking on asset forfeiture by using their own resources, Florida can simply hand the case over to the federal government, rendering reforms passed into law toothless when it comes to protecting Floridians’ property from government abuse.
The Department of Justice has seized more than $4.5 billion from property owners across the country, which now sits in the agency’s civil asset forfeiture fund. According to the Institute for Justice, that represents a 4,700 percent increase over the last generation. When added to the Treasury Department’s civil asset forfeiture fund, the numbers are even more staggering. According to Cato Institute, the government took more than $5 billion from Americans in 2014 alone, making this the first time in history that the government has seized more money than burglars stole from private citizens.
According to Tenth Amendment’s Maharrey, the federal government is fighting hard to keep civil asset forfeiture laws in place because “the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness.” Unless the federal government’s Equitable Sharing Program, which the Department of Justice has just launched once again, is slashed for good, state and local police will always have incentives to take part in the practice of seizing private property.
Until then, efforts like Florida’s must be celebrated, but not considered our only way out. State reforms will only be effective if they keep local agencies from having access to the stolen gifts presented by the federal government’s poorly written laws.