CategoriesJoin Us At:
|
Fawlty PowersReports last summer indicated that the Brits were considering plans to store information on every phone call, email and text message sent in the UK. The proposed legislation, part of a package of amendments to the already-seriously-terrifying Regulation of Investigatory Powers Act 2000 (RIPA), would require everyone to present his or her passport in order to get a phone. It would then compel all communications and Internet use data from phone companies and Internet Service Providers and consolidate all this information into one massive uber-database of British subjects' private lives and characteristic witty repartee. The plan met opposition from civil liberties groups and the Conservative and Liberal Democrat parties, as well as the UK's Information Commissioner. Recall that our friends in merry old England have been a touch on edge about data security lately, since the government managed to lose two discs with information on every family with a child under the age of 16. This and other data breach gaffes make one wonder just what sort of operation the chaps in charge were running before they came into office (Answer: here). However, we learned this week that senior officials within the Home Office (roughly the equivalent of our Department of Homeland Security) have objected to the database plan and appear to have blocked it from going forward...for now. Although this appears to be just one of several equally intrusive schemes on the table, it is encouraging to hear dissenting voices in the government itself call the plan like it is: "impractical, disproportionate, politically unattractive and possibly unlawful from a human rights perspective." It is worth pausing to consider how unlikely this scenario seems here in the United States. After eight years of the Bush administration eviscerating privacy rights and civil liberties (an activity that appears to heed no lame duck status), the response from within the government is still more whimper than howl. Contrast this with British shadow Home Secretary David Davis's resignation in June in protest against "the slow strangulation of fundamental British freedoms by this Government." Proximity to the realization of a total surveillance society may account for some of the increased public rebellion in the UK. In the last ten years, the Brits have led the way in expanded DNA databanks, widespread closed circuit TV, and other erosions of privacy, but we are not far behind them. Just as we would have been wise sixty years ago to listen to the forewarnings of an Englishman by the birth-name of Eric Blair, we would do well to pay attention to our friends across the pond as they again sound the alarm. If we fail to do so, our privacy may go the way of a certain famous British parrot.
Privacy is Not PartisanThe recent hacking of Gov. Sarah Palin’s email accounts is the latest in a series of events that show how urgently we need better privacy protections in this country – and that privacy is an issue that transcends partisan politics. Although we face unprecedented threats to our privacy, many Americans still shrug their shoulders and say, “I have nothing to hide.”Government officials use this complacency to pry further into our personal lives, justifying the wholesale capture of all communications between Americans and their friends and relatives abroad, for example, by saying that only the terrorists need fear scrutiny. Most readers of this blog know this is bogus, and recognize that privacy is a fundamental ingredient to a free society. But for those who think they have nothing to hide, the Presidential campaign has provided at least two chilling examples of how bad actors take advantage of our weak privacy protections. In March, the passport accounts of Sens. Barack Obama, John McCain and Hillary Clinton were hacked by rogue employees at the State Department.As the ACLU noted at the time, this was more than just a case of celebrity voyeurism. It was a cautionary tale about the dangers of unprotected data in the information age, and how insiders may exploit it when enforcement of privacy laws is lacking. Just last week, hackers broke into the Yahoo email account of Vice Presidential candidate Sarah Palin. As Kim Zetter chronicled yesterday on Threat Level, the hackers were able to take advantage of information about Palin readily available on the internet — her zip code, birthdate, and where she attended high school. Admittedly, Gov. Palin has a higher profile than most, but this kind of information is widely available about all of us. If you haven’t disseminated it intentionally through Facebook or one of its lesser populated predecessors, it has likely been collected for you by the growing data-broker industry. And as the Government builds larger identity databases like the one mandated by the Real ID Act, you can bet that cases of internal fraud as well as criminal hacking will become ever more prolific. It’s clear that at a personal and policy level, the candidates cannot ignore our urgent need for a comprehensive national dialogue about privacy.With breaches affecting three of the four names on the major tickets (and don’t think you’re safe, Joe Biden!), our next President cannot hide behind claims of “nothing to hide.”
Surveillance Society: Stepping Back from the PrecipiceIf you’re like me, you measure the passage of time by your annual celebration of Constitution Day. Personally, I look forward all year to decorating the Tree of Liberty and lighting the Nation of Laws, Not Menorah. 
Still, it’s hard not to look upon this year’s Constitution Day — our last under the presidency of George W. Bush — and not get a little wistful. As some popular musicians once said, “What a long, strange trip it’s been.” For those of us who care about the Constitution, that pretty well sums up the last eight years. The trip has certainly been long. With each passing year we’ve seen a greater proliferation of technology designed to invade our privacy — from so-called “smart” ID cards enhanced with radio frequency chips to networked CCTV cameras with facial and license-plate recognition software, to DNA databanks and beyond. We’ve also seen the enactment, sometimes overtly but often in secret, of new government surveillance programs and policies, which in turn create a market for more privacy-invasive technology. This combined trend is nothing new. The first major articulation of the right to privacy in American legal thinking, an 1890 article in the Harvard Law Review by Louis Brandeis and Samuel Warren, was in part a response to the increasing ubiquity of a relatively recent technological innovation at the time — still photography. The authors warned of what they saw as the vanishing freedom to live “screened from public observation.” Brandeis, of course, went on to the U.S. Supreme Court and his belief in a fundamental right to privacy made its way into our constitutional vernacular. (Samuel Warren, who graduated from Harvard Law School second in his class — behind Brandeis — went on to a career as a prominent Boston attorney, but did not achieve the renown and lasting influence of his coauthor. Which provides a good lesson for pursuing a legal career: make sure none of your peers is Louis Brandeis.) Progress, of course, tends to be much slower than its opposite. It is important to remember that Justice Brandeis’s main treatise on privacy did not actually establish it as a right — it was part of a dissent in the 1928 case of Olmstead v. United States. Brandeis’s view was not adopted by a majority of the Court until 1967 in Katz v. United States. Both of these cases were about whether the Fourth Amendment covered warrantless wiretapping of telephones. Some seem to think we still haven't settled this issue, even 80 years after Olmstead. Indeed, as you can read in any of today’s posts , many of the fundamental rights that took decades to achieve have been greatly diminished, if not eviscerated in just the last eight years. In the case of privacy, we are reaching a true precipice — a veritable doomsday moment that threatens to change us irrevocably from a free society to a total surveillance state. But there is hope on this Constitution Day — the last, I repeat, of the Bush Administration. Americans are beginning to recognize the impending darkness of a surveillance society, and in a few cases are refusing to go gentle into that good night. We have seen this in the state rebellion against Real ID, the Bush Administration’s nightmare national ID scheme, in the outrage over the millionth name added to the Terrorist Watch List, and in a recent legal victory by the ACLU of Massachusetts to force the state police to return DNA samples it collected from innocent people in a 2002 dragnet. These stories are just the tip of the spear, of course, and we have a long way to go from five minutes to midnight to the full protection of what Justice Brandeis called “the most comprehensive of rights.” The next President will have an unprecedented, and perhaps unrepeatable, opportunity to determine whether we step back from the precipice, or go over it. It is up to us, as Constitution Voters, to pull them in the right direction. Tags: constitutionvoter
What's on Jim Carafano's Laptop?He doesn't mind you knowing. In fact, he thinks it would be totally reasonable for you to seize and copy the contents, provided you're a government official and he's crossing the border. In recent testimony, and in an article in yesterday's Christian Science Monitor, James Jay Carafano of the Heritage Foundation called it "unrealistic to require probable cause" for such searches, and argued that privacy protections would "create some kind of sanctuary for criminals and terrorists to carry things across the border." First of all, not all terrorists are stupid – the ones that try to set their shoes on fire notwithstanding. One of the nice things about electronic data is that you can transport it…electronically! Any terrorist carrying copies of nefarious schemes across the border on a Blackberry is going to be pretty ineffective as a covert operative. And if there are terrorists who are so dangerous that we can justify seizing a laptop-full of their plots, why are we letting them into the country at all? To be fair, we don't always know who the terrorists are. So is the solution to search every laptop and cell phone, hoping to uncover an Outlook calendar entry that says "8 a.m.: Coffee and Bagel; 9 a.m.: Blow up Sears Tower?" An all-invasive approach that treats everyone like a suspect is not a smart trade-off for the miniscule chance that we'll catch a break like that. The costs of such a policy are high: it gives terrorists a strong ideological advantage by portraying our country as oppressive and demagogic, rather than free and open, and, as the Association of Corporate Business Travelers has explained, diminishes our capability to do business with the rest of the world, whether it's American businesses sending employees to other countries, or foreign investors bringing their Euros, yen and shekels here. The danger for businesses trying to keep trade secrets is one of the reasons that the Transportation Security Administration disavowed the policy of confiscating laptops, saying this ugly stepchild belonged to Customs and Border Patrol. One wonders why a scholar at an organization supposedly dedicated to free enterprise would support such a hostile policy towards business. But besides the costs to our economy (which last time I checked did not need the government's help to take a nosedive), there are some basic principles at work here. Basic American principles of privacy and liberty from unreasonable searches (such as scanning your entire hard drive – a digital space more analogous to a home than a briefcase) and seizures (storing that information, and often the actual hardware, for indefinite periods), should not evaporate at the border. To be sure, there are reasonable searches that should be conducted at ports of entry. We don't want people bringing weapons or dangerous materials into the country, for example. But those things are very different from data – they are inherently dangerous and not protected by the First Amendment. Probable cause is not just a legal formality, but actually helps to keep us safe by focusing our security resources away from innocent people and improving our overall safety. Security experts have recognized the need for a Constitutional bedrock to our pursuit of the war on terror. Among the fundamental principles that should guide us are:
The all-invasive laptop and cell-phone screening policy that Carafano has been defending in recent weeks fails every test he lays out in Winning the Long War. If you don't believe me, check out page 95 of the book, "Principles for Preserving Security and Civil Liberties." You can get a copy at your local bookstore, or, if you’re a customs agent, just wait until Carafano takes an international trip: He's probably got a free copy somewhere on his laptop.
Policy Debate Game, Set, MatchIt may not quite be the French Open, but James Carafano of the Heritage Foundation and I have been discussing the pros and cons of the virtual fence in a series of recent blogs. At least I thought that was what we were discussing. In his most recent post, Carafano doesn’t mention the virtual fence once. Instead he takes a potshot at me for “condemning the United States.” Here’s a good rule of thumb for policy debates: when your opponent can’t argue for the policy in question on its merits and tries to change the subject, you’ve won the argument. Nevertheless, the ACLU is never one to shrink from a fight when it goes below the belt. There is little debate out there about whether we are succeeding in securing the border. The Border Patrol is certainly not to blame for this: As Carafano describes vividly and accurately, Congress has repeatedly failed to recognize the challenges dedicated Border Patrol agents face on the ground and fund border security initiatives that will actually make their jobs easier. The virtual fence is a perfect example of this disconnect –a fat cash payout to Boeing Corp. for a program proven to be a miserable failure. On human rights, we have a long way to go. In the 14 years since Operation Gatekeeper pushed the bulk of border crossing into the harsh Arizona desert, more than 5,000 migrants have died from exposure. That’s an intolerable statistic for both the United States and Mexico. Again, this is not the fault of the men and women who go to work on the border everyday and approach their jobs with professionalism and compassion. It’s the underlying national policy, courtesy of Washington, that is putting at risk the lives of migrants and Border Patrol agents alike. In Carafano’s world, criticizing a failed Washington policy that endangers Border Patrol agents is tantamount to “bad-mouthing the Border Patrol.” If that sounds like a bogus argument to you, that’s because it is. Carafano still fails to answer my original point: that the virtual fence is a fiasco that not only threatens civil liberties, but is also indefensible from the fiscal conservative philosophy that the Heritage Foundation claims to promote. By questioning our patriotism, he is not furthering an open, responsible discussion about policy – he’s trying to short-circuit the discussion because he’s out of arguments. The ACLU and the Heritage Foundation often disagree, and we like to engage them when we do because they’re known and respected for defending conservative principles with passion and intellectual rigor. Needless to say, we’re disappointed.
J’accuse, Heritage!My post highlighting the privacy problems and massive cost of the virtual fence appears to have touched a nerve at the Heritage Foundation. Dr. James Carafano, who has been blogging from the border for the last week, wrote yesterday, “I don’t know if the person who wrote the ACLU blog post has ever been to the border, but his or her criticisms read like many of those who have not…” First, to clarify: I am a he, though I appreciate Carafano’s open-mindedness. Second, not only do ACLU affiliates in Texas, New Mexico, Arizona, and San Diego and Imperial Counties protect liberty on the border every day (as do our affiliates on the northern border), but I had the opportunity to tour the southern border with a group of them and a retired border patrol officer in April. I saw many of the same problems and heard many of the same frustrations that Carafano reports, and I certainly agree with him that there is no single solution to difficulties that we face there, both in maintaining security and, hopefully, in respecting the human rights and dignity of all people. Unfortunately, our nation’s track record is bad on both. Now, as far as the virtual fence is concerned, Carafano accuses me of “simply quoting some convenient criticisms.” This is also known as citing your sources, but either way, the consensus among both Washington policymakers and the men and women on the ground is that the test run of the virtual fence, known as Project 28, has been an utter waste of money. No doubt this is partially because Boeing, the vendor responsible for the technological aspects of the project, did not take into account many of the realities of the environmental landscape and the challenges faced by the border patrol. Instead, Boeing grabbed older technology off the shelf and repackaged it to sell to the Department of Homeland Security (which bought it hook, line and sinker using almost $1 billion in taxpayer dollars). Rather than hold Boeing accountable for this failure, DHS renewed the company’s contract last month. The real question here — and one that Carafano has yet to address — is why are we throwing good money after bad on the virtual fence? Carafano is thoughtful enough about security matters to know that we can’t just spend our way out of a problem, and he has pointed that out in this blog series. But how many times do we have to try a bad idea before we admit it’s a stupid idea? Many of the topographical challenges to border surveillance, like the deep canyons that run through the Arizona desert, are unlikely to change (at least without a major investment in dynamite), so it is unlikely that the virtual fence will ever yield the kind of results that could be counted as success. I won’t belabor the old metaphor of lipstick on a pig, but this pig carries a hefty price tag — both in financial costs to American taxpayers and the cost of border residents’ privacy. Carafano rightly points out that Project 28 is one intervention among many, and that ramped-up security alone is not the answer. But shouldn’t we discard elements of our border strategy that are proven failures, especially ones that that put millions of Americans that live near the border under the constant gaze of federal government watch towers? There are a lot of areas where the ACLU and the Heritage Foundation can find common ground, especially around protecting individuals’ privacy rights. But costly mass surveillance programs, like the virtual fence and Real ID (the national ID program that, bafflingly, Carafano has supported, despite the fact that Republicans and Democrats alike criticize it as the most egregious example of federal unfunded mandates - paging Newt Gingrich!) serve neither security nor civil liberties. As we debate solutions, it is important to remember that the border is not a Constitution-free zone. We look forward to continuing this open dialogue with our friends at Heritage, and all Americans who care about these vital issues.
Something in the Water at the Heritage Foundation?
James Carafano has been blogging on the Heritage Foundation’s “The Foundry” this week on his trip to our southern border. Carafano has been mighty impressed with all the potential benefits of increased border security. Specifically, Carafano believes it will protect the environment, even though Defenders of Wildlife has warned that the erection of a border fence will have “serious and lasting” effects on wildlife, clean water and clean air in the region. He's also convinced it will reduce human fatalities, even though over 200 people die on the border each year, mostly from exposure, while the rate of illegal immigration remains steady.
But today’s post is a real humdinger. Titled “Virtual Fences Can Help Make Real Good Neighbors,” it praises the rollout of “Project 28,” part of the Department of Homeland Security’s initiative to create a “virtual fence” of video surveillance, motion sensors and other nifty gadgets along 28 miles of the Arizona-Mexico border. But as the Government Accountability Office and The Washington Post reported in February, Project 28 has been an utter fiasco. None of the technology has worked, and DHS decided to scrap the pilot project (they are now trying again with newer, fancier equipment). However, even if the technology had worked, it’s not clear the program would have. Residents of Arivaca, Ariz., an unincorporated town nearby on of Project 28’s video surveillance towers, complained that while DHS reported the tower’s field of vision was only about 10 miles, the agency had placed it right next to the town, which happens to be 12 miles from the border. The potential for the federal government to spy on American citizens was real; the impact on border security, not so much. But forget the fact that Project 28 is a complete boondoggle for a moment (Carafano admits that in addition to suffering from “bad publicity,” nobody at DHS bothered to ask the Border Patrol what they actually needed). The virtual fence is also one of the largest government gravy trains out there, and the main beneficiary has been Boeing Corp. Boeing got the original contract to install Project 28, and despite its failure to build something that works for more that $860 million in taxpayer dollars, DHS keeps offering the company new contracts. Just last month, it was announced that Boeing would be asked to build on its “experience” with Project 28 to construct two new sections of virtual fence in Arizona and Michigan. Now to return to our friends at Heritage: Why would a think tank that advocates for limited government, free enterprise and strong national defense support a program that is massively expensive to taxpayers, invades the privacy of local residents, and amounts to a handout to a company that has repeatedly failed to secure our borders? A massive buildup of surveillance technology at the border is the kind of cash cow that fiscal conservatives and civil libertarians should be united in opposing. We’re eagerly waiting to welcome our friends at Heritage to the right side of the (virtual) fence.
No Real ID in AlaskaThe battle over Real ID — the Bush Administration’s backdoor national ID card — has been getting quieter in the last few weeks, but is by no means cooling down. First, the statutory deadline for all states to comply with the Real ID Act — May 11, 2008 — came and went without a single state participating in the program. The Department of Homeland Security tried its best to bully states into agreeing to comply, but the best they got was half-hearted responses like that of California, which said it could not commit one way or the other. A few states, like Montana and South Carolina, outright refused. Gov. Mark Sanford of South Carolina sent Michael Chertoff a five-page letter explaining in detail why his state would not participate, and called Real ID “the worst piece of legislation I have seen during the 15 years I have been engaged in the political process.” It’s no wonder DHS chose to extend the implementation deadline to 2017, when all of its top officials will be comfortably out of office, and on the lecture circuit. That seemed to be that. Real ID was supposed to sleep-walk into the next president's administration, who would have to decide whether to put the multi-billion dollar unfunded mandate on life support, or drive the final steak through its vampiric heart. Yesterday, however, the state of Alaska upset the balance…again, quietly. The Legislature passed a bill in early May that would prevent the state from spending any money to implement Real ID. Since Congress has appropriated only 1 percent of the total $9.9 billion cost, states have to shoulder almost the entire burden, so no state money effectively means no Real ID in Alaska. The bill sat on Governor Sarah Palin’s desk for the last few weeks, and yesterday she returned it to the legislature unsigned. That might seem like a defeat for the bill, but take a look at this key section of the Alaska Constitution: A bill becomes law if, while the legislature is in session, the governor neither signs nor vetoes it within fifteen days, Sundays excepted, after its delivery to him. If the legislature is not in session and the governor neither signs nor vetoes a bill within twenty days, Sundays excepted, after its delivery to him, the bill becomes law. You needn’t have aced Civics to see what this means: By waiting the required twenty days after receiving the bill (excluding Sundays), the Governor allowed the bill to become law, making Alaska the ninth state to pass a statute against implementing Real ID. We can expect to see other states quietly move to reject Real ID. Similar bills are awaiting final approval by the legislatures in Arizona and Louisiana, and others are pending in Pennsylvania and North Carolina. As the anti-Real ID rebellion continues to grow in the states, Congress would be wise to prick up its ears to the sounds of silence.
New Plan for Protecting Genetic Privacy: Don't Get Arrested.
(Also, don't be an immigrant.)
A few weeks ago, the Justice Department quietly released proposed regulations that would permit the collection and permanent retention of DNA from anyone arrested for a federal crime, or any non-U.S. person detained under federal authorities. As I wrote on Daily Kos when the regs came out, this sweeping change could ultimately result in the government taking DNA from individuals arrested for the most minor of crimes, such as peaceful protesters demonstrating on federal property, like the National Mall or a government building, as well as any lawful visitor to our country who is pulled aside at an airport by the Transportation Security Administration. Today, we filed comments on the proposed regulations, highlighting the threats to privacy and civil rights that the new regulations pose. The Justice Department will consider public comments in developing its final rule. While the public comment period is now over, it's never too late to tell your elected representatives how you feel about this massive expansion of the federal government's DNA databank. In the meantime, we'll be doing our best to stay out of it.
Happy Anniversary from the Homeland Civil Liberties Union!
It's a jubilee year for the Department of Homeland Security, where Secretary Michael Chertoff and company are celebrating their fifth year of doing what they do best - securing the homeland. On March 1, the Department marked the five-year anniversary of its Office of Civil Rights and Civil Liberties.
Since we at the ACLU have been privy to much of the Department's fine work in this area, we decided to put together a little anniversary gift: a hit parade of Homeland Security's greatest civil rights and civil liberties moments of the last five years. Cue music and the voice of Ralph Edwards: "Michael Chertoff, this is your life!"
|
|
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 |
