Privacy SOS

Policing and privacy news you might have missed

Mea culpa: I’ve been on vacation; that’s why no recent posts. Here is some news I missed while I was partying and relaxing.

It is extremely easy for the FBI to spy on journalists, without warrants

As Freedom of the Press Foundation’s Trevor Timm observes, the FBI has some nerve. After all, the Bureau spent years trying to convince the public that its media guidelines place a high burden of proof on spooks seeking to pry into journalists’ private affairs. But newly leaked documents show it’s incredibly easy for agents to obtain journalists’ records, and no standard of proof is required at all—at least any standard that anyone independent of the Department of Justice needs to approve. It turns out the FBI can use secretive national security letters (NSLs), otherwise known as secret subpoenas, to obtain journalist information in leak investigations—precisely the kind of power the FBI promised the public it didn’t have—as long as higher ups in the DOJ give the ok. No judge, no disclosure, no pesky lawyers or media attention: no problem. Someone check the First Amendment’s pulse.

DHS wants visitors to the United States to hand over their social media info at the border

We have until August 22, 2016 to tell the Department of Homeland Security what we think about a proposal to include the following on customs sheets visitors to the US are required to fill out when they enter and exit the country:

Please enter information associated with your online presence—Provider/Platform—Social media identifier.

DHS claims the disclosure would be voluntary, but there’s no indication that DHS plans to inform visitors that they have a choice about whether or not they want to give the US government their LinkedIn, Twitter, Snapchat, Facebook, or Tumblr account information. Apparently officials think adding this line to the customs form will help agents identify “possible nefarious activity and connections.” Of course, “nefarious” isn’t defined. Who would decide what constitutes nefarious speech? Border agents? Some person behind the curtain at US airports? The FBI? Tell the government what you think about this plan. A number of your fellow humans have already done so, and you can read their comments here.

The FCC is about to set privacy rules for Internet Service Providers (ISP), but will they include Google?

July 6, 2016 is the last day the Federal Communications Commission will accept public comments on its plans to produce privacy regulations for ISPs. Critics including TechCrunch’s (and former DHS privacy official) Debra Diener say the proposal is promising but doesn’t go far enough, because it won’t consider tech giants like Apple, Google, or Amazon ISPs, and therefore won’t produce privacy regulation governing them. 

Wiretaps: All approved, and mostly for drugs

The 2015 wiretap report is out, and it’s truly something. Not a single wiretap application was rejected in 2015, according to the report compiled by the United States Courts. Some other interesting tidbits:

  • The number of federal and state wiretaps in 2015 increased 17% from 2014.
  • At least 4,148 wiretaps were authorized in 2015, 1,403 by federal judges and 2,745 by state judges.
  • The vast majority of wiretaps relate to drugs. In 2015, 79% of wiretaps were in drug cases, down from 89% in 2014. By comparison, homicide was the second most common reason for a wiretap, but homicide cases accounted for only 5% of wiretaps in 2015. The drug war remains the principal driver of state surveillance in the United States.
  • Sheriff Joe Arpaio’s Maricopa County boasts the prize for most fruitful—or invasive—wiretap. Surprise, surprise: it was in a drug investigation. “The state wiretap with the most intercepts was a 120-day wiretap for a narcotics investigation in Maricopa County, Arizona, which resulted in the interception of 412,298 cell phone conversations, of which 15,566 were incriminating.”
  • Officials encountered encryption in 7 state wiretap cases, and in 6 federal cases. That’s 13 cases, total. The feds were able to decrypt information in two of their cases, meaning in the entire country, encryption obstructed wiretap orders eleven times, or in .3% of cases. Yes, that’s significantly less than one percent. 
  • Wiretaps are expensive! “The most expensive state wiretap was in Rockland County, New York, where costs for a 390-day narcotics wiretap resulting in 36 arrests and 18 convictions totaled $1,363,192.” Think of all the drug abuse counseling the state could have paid for with that money.
  • In Massachusetts, there were at least 25 federal wiretaps in 2015, mostly in conspiracy cases. State prosecutors reported only one state wiretap to the US Courts, for a narcotics investigation in Suffolk County (Boston). 

The Fourth Amendment: Is it even alive?

Finally, the Supreme Court ruled in Utah v. Strieff  that police can use evidence against people even if they obtained it illegally. What? Let’s just pass the mic to Justice Sotomayor, who wrote a fiery dissent(page 14):

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

The national ACLU had some words, also:

Stay tuned for more analysis about how this disastrous decision will impact your rights, and our struggle to secure and expand them.

© 2018 ACLU of Massachusetts.