Obama administration advising police not to disclose details about surveillance

MassPrivateI

The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods, The Associated Press has learned.

Citing security reasons, the U.S. has intervened in routine state public records cases and criminal trials regarding use of the technology. This has resulted in police departments withholding materials or heavily censoring documents in rare instances when they disclose any about the purchase and use of such powerful surveillance equipment.
Federal involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures about classified federal surveillance programs.

One well-known type of this surveillance equipment is known as a Stingray, an innovative way for law enforcement to track cellphones used by suspects and gather evidence. The equipment tricks cellphones into identifying some of their owners’ account information, like a unique subscriber number, and transmitting data to police as if it were a phone company’s tower. That allows police to obtain cellphone information without having to ask for help from service providers, such as Verizon or AT&T, and can locate a phone without the user even making a call or sending a text message.

But without more details about how the technology works and under what circumstances it’s used, it’s unclear whether the technology might violate a person’s constitutional rights or whether it’s a good investment of taxpayer dollars.

Interviews, court records and public-records requests show the Obama administration is asking agencies to withhold common information about the equipment, such as how the technology is used and how to turn it on. That pushback has come in the form of FBI affidavits and consultation in local criminal cases.

“These extreme secrecy efforts are in relation to very controversial, local government surveillance practices using highly invasive technology,” said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union, which has fought for the release of these types of records. “If public participation means anything, people should have the facts about what the government is doing to them.”

“The federal government appears to be attempting to assert a federal interest in the information being sought, but it’s going about it the wrong way,” said Dan Metcalfe, the former director of the Justice Department’s office of information and privacy. Currently Metcalfe is the executive director of American University’s law school Collaboration on Government Secrecy project.

Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement “coordinate with the FBI the acquisition and use of the equipment.” Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies.

A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. “As a government contractor, our solutions are regulated and their use is restricted,” spokesman Jim Burke said.

Local police agencies have been denying access to records about this surveillance equipment under state public records laws. Agencies in San Diego, Chicago and Oakland County, Michigan, for instance, declined to tell the AP what devices they purchased, how much they cost and with whom they shared information. San Diego police released a heavily censored purchasing document. 

Oakland officials said police-secrecy exemptions and attorney-client privilege keep their hands tied. It was unclear whether the Obama administration interfered in the AP requests.

“It’s troubling to think the FBI can just trump the state’s open records law,” said Ginger McCall, director of the open government project at the Electronic Privacy Information Center. McCall suspects the surveillance would not pass constitutional muster.

“The vast amount of information it sweeps in is totally irrelevant to the investigation,” she said.

Where does government spying end?

A D.C. court just approved the placement of tracking devices to spy on cab drivers and passengers.

Spying on taxi drivers and their passengers is fine with a federal judge. In a memorandum opinion last week, the US District Court for the District of Columbia rejected a lawsuit that claimed the use of “smart” metering systems violated the Fourth and Fifth Amendments. 

Citing a January case from New York, El-Nahal v. Yassky, and the 1983 US Supreme Court decision, US v. Knotts. The court said the government is free to track all such movements.

“Here there has been no trespass and no infringement of a reasonable expectation of privacy,” Judge Huvelle wrote. “Neither the taxicab drivers nor passengers have a reasonable expectation of privacy in the pick-up and drop-off data collected by the GPS tracking aspect of the modern taximeter system… Applying Knotts, other courts have held, and this Court agrees, that requiring a taxicab driver to install a GPS tracking device that records the start and end of each trip does not infringe on any reasonable expectation of privacy.”

Click here to read more.

http://www.huffingtonpost.com/2014/06/12/obama-local-police-surveillance_n_5489706.html

EFF: Public deserves to see secret surveillance law written by office of legal counsel

The Electronic Frontier Foundation (EFF) asked the Supreme Court to weigh in on a long-standing Freedom of Information Act (FOIA) lawsuit in which EFF sought to obtain a secret legal memo authorizing the FBI to obtain phone records without any legal process.

“The public has a fundamental right to know how the federal government is interpreting surveillance and privacy laws,” EFF Senior Counsel David Sobel said. “If the Office of Legal Counsel has interpreted away federal privacy protections in secret, the public absolutely needs access to that analysis. There is no way for the public to intelligently advocate for reforms when we’re intentionally kept in the dark.”

The existence of this opinion first came to light in a report issued by the Justice Department’s Inspector General on the FBI’s use of its surveillance authorities in national security investigations. The Inspector General’s report indicated the OLC issued a determination that appeared to conflict with the Stored Communications Act, a federal privacy law that safeguards customer call records from disclosure to the government without valid legal process.

EFF submitted a FOIA request for more information. The Justice Department refused to comply and subsequently EFF filed a lawsuit in May 2011 to obtain the records. While the case was unsuccessful at the district and appeals court levels, EFF believes the issue is of such significance that it merits review by the highest court.

“OLC opinions have formed the legal basis for some incredibly controversial government actions,” EFF Staff Attorney Mark Rumold said. “It can’t be left to the executive branch’s discretion to release these critically important opinions. We hope the Supreme Court will take the opportunity to clarify that this type of secret law has no place in a democratic society.”
https://www.eff.org/press/releases/eff-asks-supreme-court-decide-fight-over-secret-surveillance-memo

The Bill of Rights is not expendable when the govt finds them inconvenient: 

The Fourth Amendment is an example of a promise of protecting natural rights, long ignored and often violated. While much of court precedents involve policing powers, these decisions have profound application to NSA metadata mining. With the first anniversary of the Edward Snowden disclosures, no government official or agency can continue to deny the existence of the total surveillance state. 

The NSA’s “General Warrants”: How the Founding Fathers Fought an 18th Century Version of the President’s Illegal Domestic Spying, provides an indispensable example of the fundamental conflict that always exists, when magistrates envision their duty as the maintenance of government supremacy over the inherent autonomy of individuals. 

It is “familiar history,” the U.S. Supreme Court noted in Payton v. New York, that “indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.” When James Madison drafted the Fourth Amendment, he relied heavily on the Massachusetts Constitution, which forbade warrants that did not specify the “persons or objects of search, arrest, or seizure. 

Since the post World War II era, the radical shift from the remnants of the former Republic, into a global authority, where the meaning of the law has no correlation to the intent of original constitutional conviction, is undeniable. What was enemy signals interception became complete domestic scrutiny and monitoring. Lost for all practical legal purposes was The Central Meaning of the Fourth Amendment. Tracey Maclin provides a historic account and judicial context on how the Constitution was perverted. 

The Court’s rational basis model essentially asks whether the police have acted irrationally while intruding upon the Fourth Amendment rights of individuals. The Court’s model rarely requires warrants authorizing searches, disfavors vigorous judicial oversight of police searches, and prefers deference to police procedures as the mode of constitutional decision-making. 

A rational basis model does not subject police searches to vigorous judicial check. In many instances, the police are free to undertake unsupervised and suspicionless searches, even when less intrusive means are available to serve the state’s interests. In other contexts, warrantless searches are permitted when the only justification for such a search is police convenience. 

In the end, the Court finds that all of these searches are reasonable because they rationally serve legitimate state interests. This degree of deference to police searches is at odds with the central purpose of the Fourth Amendment, which is distrust of discretionary police power. The Fourth Amendment was not inserted in the Bill of Rights so that judges could meekly defer to government intrusions of privacy; rather, the amendment was designed to control such intrusions.

In the case Klayman v. Obama, “On December 16, Richard J. Leon of the Federal District Court for the District of Columbia ruled that the metadata collection program violates the Fourth Amendment”, hopes were high that at least one federal judge had the courage to uphold the Constitution. Metadata and the Fourth Amendment then cites that soon thereafter, the weight and magnate of the intelligence snooping force felt the usual letdown, when American Civil Liberties Union v. Clapper was decided.

On December 27, Judge William H. Pauley III came to the opposite conclusion. Contrary to Judge Leon’s belief that the metadata program has not been effective, Judge Pauley argued that the program could potentially have stopped the 9/11 attacks. However, the crux of his determination was that the Smith precedent applies and that no Fourth Amendment claim can be made out for Americans have no reasonable expectation of privacy regarding the metadata related to their phone calls.

Note the bizarre endorsement of this absurdly twisted legal logic that conveniently destroys the intentional importance of preserving essential privacy that corrupt courts want to make conditional.

Among the requirements for a successful Fourth Amendment claim is establishing that a reasonable expectation of privacy was violated. On this point, the most relevant precedent to the metadata cases is 1979’s Smith v. Maryland, in which the U.S. Supreme Court held that individuals have no reasonable expectation of privacy regarding the telephone numbers they call, for that information is freely provided to telephone companies and it is generally known that telephone companies keep this information in their records.”

Abolishing the expectation of privacy is not subject to the redefining of what are reasonable restrictions that the government places upon its agencies. The reason why the NSA is so dangerous stems from the total lack of observing that the spying on ordinary citizens is a profound repudiation of basic and inalienable rights of each individual.

Such systematic and surreptitious gathering also has No Fourth Amendment right in metadata embedded in posted photo, so say the U.S. Court of Appeals for the Fifth Circuit. Before long, this parade of government inspection and retention will subject even the hermit and the deliberate recluse to a profile third degree. It is a never-ending process until snatching your individual identity is the ultimate outcome.

The snoops view you as an enemy of the state, unless you can prove differently, whereas the reality is that The Strange World of NSA Mind Control is the true foe of the liberty of people and a free nation.
http://batr.org/autonomy/060914.html

http://massprivatei.blogspot.com/2014/06/obama-administration-advising-police.html