The agency, which oversees requests for surveillance warrants against suspected foreign intelligence agents on US soil, released the report to Senate majority leader Harry Reid (D-Nevada), showing that by approving the 1,856 inquiries “for foreign intelligence purposes,” it had granted every single government request in 2012. The FISC’s approval rating actually jumped by five per cent from 2011 – when it also approved every application.The FISC was instituted as part of the US Foreign Intelligence Surveillance Act (FISA) in 1978, expanded under the George W. Bush administration, and then reauthorized by Congress for another five years in December of 2012. The act, commonly referred to act the “warrantless wiretapping” law, authorizes the government to monitor US citizens’ phone calls and emails without first proving probable cause as long as they’re believed to be corresponding with an individual overseas. “The 1,856 applications include applications made solely for electronic surveillance, applications made solely for physical search, and combined applications requesting authority for electronic surveillance and physical search,” the report read. “Of these, 1,789 applications included requests for authority to conduct electronic surveillance.” David Kris, a former top anti-terrorism attorney at the Justice Department, wrote in the 2012 edition of National Security Investigations and Prosecutions that the FISA Amendments Act also gives the government domestic spying power while stripping away accountability.“For example, an authorization targeting Al-Qaeda – which is a non-US person located abroad – could allow the government to wiretap any telephone that it believes will yield information from or about Al-Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with Al-Qaeda, or because the government believes that the person communicates with others who are affiliated with Al-Qaeda, regardless of the location of the telephone,” Kris wrote, as quoted by Wired. In February of this year the American Civil Liberties Union tried to sue the government in a bid to nullify the law. However, the Supreme Court ruled that, because the court proceedings are kept secret and the American Civil Liberties Union has no way to know if it’s been targeted by the FISA Act, they had no legal standing to sue. When the powers under the law were extended last year, the Senate refused to include any amendments that would have prohibited the CIA from reviewing information taken from government surveillance, one of which was proposed by Sen. Ron Wyden (D-Oregon). “The amendment I fought to include would have helped bring the Constitutional principles of security and liberty back into balance and I intend to work with my colleagues to see that the liberties of individual Americans are maintained,” Wyden said after the vote. …
The deadly blasts killed three people, injured more than 200 and caused 16 victims to undergo limb amputations. Paul says the Boston Marathon bombing was tragic, but that law enforcement’s response was even more terrifying and unprecedented.In an op-ed published on the website of libertarian editor Lew Rockwell, Paul describes the police response as a “military-style takeover of parts of Boston” – a procedure that resembled martial law.“Forced lockdown of a city,” he writes. “Militarized police riding tanks in the streets. Door-to-door armed searches without warrant. Families thrown out of their homes at gunpoint to be searched without probable cause. Businesses forced to close. Transport shut down.”The former congressman believes that the Boston bombing should have resulted in a police investigation, not a military-style occupation that infringed upon the civil liberties of those living in or near Boston. Residents in Watertown, Mass. – the site where the surviving suspect was found – were told to stay indoors for most of April 19 while authorities pursued Dzhokar and Tamerlan Tsarnaev. After the elder brother was killed and Dzhokhar escaped, residents were ordered to remain inside as the manhunt progressed.While the media hails the capture of the remaining suspect as an American victory, the police tactics have become largely ignored, Paul says. The libertarian believes that because of the media’s depiction of surveillance methods as a reason for the capture, Congress will be able to justify installing “more government cameras pointed at the rest of us.” But in the end, the capture was largely due to the help of private citizens who contributed their photographs to the FBI and one man who discovered the injured suspect hiding in a boat. The surveillance videos posted online by the FBI came from private businesses – not the government.By believing the government’s job is to keep Americans safe rather than to protect their liberties, US citizens are allowing police investigations to proceed as they did in the aftermath of the Boston Marathon attack. Massachusetts Gov. Deval Patrick last week defended the response to the bombings, telling reporters that authorities “did what we should have done and were supposed to do with the always-imperfect information that you have at that time.”But by locking down a city, conducting unwarranted searches, forcing Americans to stay in their homes and hailing surveillance as a reason for the capture, the government is overstepping its boundaries, Paul says.“This is unprecedented and is very dangerous,” he writes. “We must educate ourselves and others about our precious civil liberties to ensure that we never accept demands that we give up our Constitution so that the government can pretend to protect us.” …
Our entire March 2013
issue is now available online. Don’t miss Matt Welch on Obama’s
refusal to face economic reality, Jacob Sullum on how cops and
their canines manufacture probable cause, Ronald Bailey on whether
Republican and Democratic brains are different, and Brian Doherty
on Congress after Ron Paul, plus our complete Citings and Briefly
Noted sections, the Artifact, and much more.
Click here to read
Reason’s complete March 2013 issue. …
Currently law enforcement officers across the United Statesdon’t need a warrant to obtain sensitive information sent overcellular networks, and a recent analysis concluded that serviceproviders receive over one million requests annually for this kindof information. Wiretapping text messages and phone calls areanother story, but under current law it’s all too easy for policeagencies to request and obtain certain cell information, includingreal time location data that can let officers nearly pin-point theexact spot a person is located.“Cell phones communicate location informationconstantly,” says Greg Foster of the Electronic FrontierFoundation’s Austin, Texas office. “Now the details of your life– your employer, your hobbies, your relationships, your religion,political meetings you attend – can all be gleaned from customerdata held by your phone company. And police don’t need a warrant toget it.”Lawmakers in Texas don’t like that notion, and are askingofficials in both the state House and Senate to approve separatebills that will bar law enforcement from obtaining cell towerlocation data without good reason.If passed, the law enforcement will only be able to obtaininformation “if there is probable cause to believe the recordsdisclosing location information will provide evidence in a criminalinvestigation.”“When the Bill of Rights was written, the framers kept alltheir personal information in their homes, and no one had inventedlocation tracking. This bill will apply our constitutional rightsto the new ways we collect and store personal information,”explains Heather Fazio of Texans for Accountable Government.Scott Henson, the writer of the criminal justice blog Grits forBreakfast, adds, “This bill ensures that government can’t trackyour daily movements without a good reason.” The EFF’s Fostersays it “creates reasonable privacy protections for allTexans.”One of the acts, House Bill 1608, was filed last month by StateRep. Bryan Hughes (R-Mineola). State Senator Juan “Chuy” Hinojosa(D-McAllen) has introduced a companion bill in the other chamberthat has since attracted support from both sides of the aisle. TheTexas Electronic Privacy Coalition and the state’s American CivilLiberties Union branch both endorse the legislation as well,although it will need approval in both the House and Senate beforeit can land on the desk of Governor Rick Perry, who unsuccessfullysought the Republican Party’s nomination for president during lastyear’s election.Should Gov. Perry sign-on, Gregory Nojeim of the Center forDemocracy and Technology says it could set the stage for federallawmakers to follow suite.“What the states do on this issue will certainly influencewhat Congress does,” Nojeim, a senior counsel at the CDT, tellsArs Technica. “It’s clear to me that because the location of acell phone is mobile and because phones cross state lines routinelyit’s probably that if the states start acting then Congress wouldneed to enact a uniform rule.”A Supreme Court decision last year in the case of United Statesv. Jones ruled that law enforcement cannot track a suspect using aGPS signal without a warrant. Police agencies can still easilyaccess other location data sent from cell towers, however, whichgives near-perfect estimations of where a person is located at aspecific time.Should the Texas bills be approved, cell service providers willalso need to provide to the public and government an annualtransparency report on how law enforcement applies for sensitiveinformation. …
Imagine that a police officer,
after taking it upon himself to search someone’s car, is asked to
explain why he thought he would find contraband there. “A little
birdie told me,” he replies. Most judges, suggests Senior Editor
Jacob Sullum, would react with appropriate skepticism to such a
claim. But substitute “a big dog” for “a little birdie,” and you’ve
got probable cause. ;
Or so says the U.S. Supreme Court, which last week
unanimously ;ruled ;that “a court can presume” a search is
valid if police say it was based on an alert by a dog trained to
detect drugs. Sullum says the Court thereby encouraged judges to
accept self-interested proclamations about a canine’s capabilities,
reinforcing the alarmingly common use of dogs to justify invasions
of privacy. ; View this article.
The U.S. Supreme Court’s recent decisions regarding police
powers were mixed, thus offering a reminder to civil libertarians
that they cannot depend upon the high court to protect the public
from unwarranted government intrusions.
“The U.S. Supreme Court handed police one victory and one loss
on Tuesday,” reported National Public Radio. “In one decision,
the ;justices limited the power of police to detain people who
are away from their homes when police conduct a search. And in a
second case, the justices ruled that drug-sniffing dogs don’t have
to get every sniff right in order for a search to be valid.”
NPR’s ballgame analogy hints at reality: Whenever the
authorities win, the public loses some of its personal liberties.
The recent police loss came in the Bailey case. Police had
a warrant to search the apartment of a New York parolee named
Chunon Bailey. Unaware of the impending search, Bailey drove away.
Police followed him, stopped him three-quarters of a mile from his
home and then detained him.
The court answered this simple question: Does a search warrant
apply only to the location of the warrant or does it give police
an ;open-ended document that allows them to detain and search
people practically anywhere?
Justice Anthony Kennedy, writing for the court majority in the
6-3 decision, concluded: “The categorical authority to detain
incident to ;the execution of a search warrant must be limited
to the immediate vicinity of the premises to be searched.” Kennedy
concluded that a failure to put limits on a search warrant would
“violate the usual rules for arrest based on probable cause.”
The majority opinion seems obvious and sensible. A search
warrant is designed so that police can search a particular place,
not cast a net miles away from the location. The odd minority
coalition—liberal Stephen Breyer and conservatives Clarence Thomas
and Samuel Alito—was disturbed that the decision did not provide
police officers with a “bright yellow line.” They argued that
“immediate vicinity” was not an understandable enough directive.
Yet that hazy line seems better than the bright one that Breyer,
Thomas and Alito prefer—giving police unlimited power to detain a
search subject anywhere.
In the police “victory,” the high court essentially gave police
broad authority to use police dogs to sniff for
contraband—overturning the Florida Supreme Court’s insistence that
the dogs be properly trained to find the substances they are
In this case, a police officer encountered a nervous driver, and
then allowed a dog to sniff for drugs. As USA Today
reported, “[T]he search didn’t turn up drugs that could be sniffed;
instead, ingredients for manufacturing methamphetamine were
The suspect in this case had drugs, but the rest of us can
expect to increasingly be sniffed at by those menacing police dogs
at more places. Sadly, Americans will get used to that just as they
have become accustomed to ubiquitous highway checkpoints, TSA
abuses, and X-ray scanners.
On perhaps the biggest civil-liberty issue before the court this
year, the justices did the right thing in a backdoor way. In
November, the Supreme Court chose not to review an appeals-court
decision that blocked an Illinois eavesdropping law that could
impose 15-year prison sentences on people who videotape police
Many states require the consent of all parties before you tape a
conversation. In Illinois, the law was applied even to authorities
who ;are doing their job in public view and on the public dime.
Throughout the country, police have been arresting people who
videotape them now that the easy use of phone-cameras has
occasionally caught cops misbehaving. The Huffington Post reported
on one case in which an Illinois woman complaining about an alleged
sexual assault by a police officer was arrested for videotaping
officers who she said was trying to bully her into not filing a
The appeals court found such recordings to be a First Amendment
right. Given the high court’s mixed record on civil liberties, it’s
probably best that it punted on the matter and allowed a strong
lower-court decision to remain in force.
Soon enough, though, the court will need to wade more deeply
into this area. It’s shocking how quickly, for instance, local law
enforcement agencies are embracing drones. A couple of cities have
passed limits on their use, but, as The New York Times
reported, “Drones are becoming a darling of law enforcement
authorities across the country.” No wonder, given the availability
of Department of Homeland Security grants and a strangely
authoritarian mindset that has taken hold in our country.
Conservatives concerned about encroaching big government used to
unite at times with old-style civil-libertarian liberals to push
back against the never-ending inertia of government agencies and
officials who always clamor for more privileges and power. But that
“leave us alone coalition” has evaporated.
The court’s record could be worse, but I’d feel far better about
the state of our freedoms if that coalition would rise again. …