• Tag Archives surveillance
  • Local Cops Can Skirt State Limits on Surveillance By Joining Federal Task Forces

    By joining joint law enforcement task forces run by the federal government, local cops can often ignore stringent state and local laws governing surveillance and engage in warrantless spying.

    It’s well-known that a federal program known as “Equitable Sharing” allows local prosecutors and police to bypass more restrictive state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. A Department of Justice directive issued last summer by Attorney General Jeff Sessions reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

    Through the adoption process, local police claim cases are federal in nature to justify transferring them to federal jurisdiction. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds.

    Participation in federal joint law enforcement task forces gives state and local police a similar means to circumvent restrictive state surveillance laws and conduct warrantless spying with immunity.

    How Local Cops Can Ignore Local Laws

    When state or local law enforcement officers join a federal joint task force, they are deputized as federal agents. As a result, they can operate under the exact same parameters as an FBI or DEA agent. That means they are no longer bound by state laws governing surveillance. In practice, this allows local cops to ignore state laws as they collect information on people in their communities.

    For instance, last year, Illinois passed the most restrictive law on cell site simulators in the country. Commonly referred to as “stingrays,” these devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower. This allows law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

    Under the Illinois law, police must get a warrant before using a stingray to track an individual’s location in most situations, and they are barred from using the devices to access data on electronic devices or listen to conversations. But an Illinois police officer serving on a joint task force can ignore the warrant requirement and deploy a stingray despite the state law.

    According to a report by the Century Foundation, Joint Terrorism Task Forces (JTTFs) are particularly invasive due to their broad and sweeping mandate to “prevent terrorism.”

    The War on Terror Expands Law Enforcement’s Reach

    Prior to 9/11, there were about 30 JTTFs scattered around the US. Today, more than 180 such task forces operate all across the US. According to memoranda of understanding (MOUs) obtained by the ACLU, state and local law enforcement officers assigned to JTTFs follow federal rules for intelligence gathering.

    According to the New Century report, these JTTFs also allow state and local cops to operate in virtual secrecy and with little or no local oversight.

    Partnerships on JTTFs may also enable local and state police to conduct activities in secret, under cover of federal law protecting ‘classified information,’ where their activities would otherwise be subject to public scrutiny through state open records laws. Sometimes, local officers deputized to work as federal agents on JTTFs aren’t even subject to ordinary chain-of-command requirements, for example, if their local commanding officer doesn’t have security clearance to access information held by the JTTF member. These frameworks make it impossible to hold local and state law enforcement officials accountable for their work on JTTFs.

    In 2008, the DOJ established rules allowing FBI agents to conduct “assessments”—essentially an investigation without any indication of terrorist or criminal activity. Any FBI agent can unilaterally initiate an assessment for up to 30 days without any oversight. After 30 days, the agent must report to a supervisor. From that point, the supervisor can renew the assessment every 30 days. An agent does not have to have probable cause or even reasonable suspicion to open an assessment. He only needs to have an “authorized purpose” and a “clearly defined objective.” According to the Brennan Center for Justice, agents can engage in the following activities, among others, during the assessment phase.

    • Recruit informants to monitor the subject.
    • Question people without revealing their identity.
    • Search commercial and government databases.
    • Conduct physical surveillance of a person’s public movements.

    When operating within a JTTF, a local law enforcement officer can engage in all of these activities, regardless of state law or department policy.

    The Warrantless Collection of Data

    Deputization and membership in a JTTF also opens the door for local cops to access federal databases holding information that was collected without a warrant.

    Local and state police assigned to JTTFs and deputized as federal agents may even have access to information collected by the CIA, NSA, or foreign intelligence agencies, as their FBI counterparts do. Indeed, FBI guidelines allow agents to ask the CIA and NSA for information on people agents are investigating during an assessment. Again, agents and task force members do not even need to suspect someone of involvement in criminal activity before opening such an assessment. Local police assigned to the JTTF may therefore have access to information about Americans that was collected by the NSA without any judicial process, even if the targets of the spying aren’t suspected of any crime—let alone a serious offense connected to terrorism.

    The FBI calls JTTFs “our nation’s front line on terrorism: small cells of highly trained, locally based, passionately committed investigators, analysts, linguists, SWAT experts, and other specialists from dozens of U.S. law enforcement and intelligence agencies.”

    The New Century report came up with a much less glowing assessment.

    Communities and individuals who have been monitored, harassed, or threatened by JTTF operations or their task force officers may see their role differently. To those groups, the JTTFs likely appear more interested in solidifying and expanding the power of their own bureaucracy, and protecting the political, social, and economic status quo—often at the expense and on the backs of marginalized communities. And despite the FBI’s claim that the JTTFs are the nation’s “front line on terrorism,” the FBI doesn’t have much to show, in terms of benefits to public safety, for the vast expenditures of public funds poured into them.

    State and Local Governments Need to Step Up

    Joint task forces further detach local peace officers from the communities they ostensibly serve. Federal deputization allows your local cops to operate outside of state law with virtually no local or state oversight or accountability. They can surveil you with impunity, even if your state has passed laws to protect your privacy.

    Joint task forces should not serve as a vehicle to circumvent state law. State and local governments need to take steps to regain control over their police departments. They should refuse to lend their officers to any joint task force that does not operate within the limits of state surveillance laws. They should also insist on having an oversight role when any of their officers are involved in joint investigations.

    Despite revelations by Edward Snowden and other whistleblowers revealing the total disregard of the Fourth Amendment by federal agencies like the NSA, Congress has shown no inclination to rein in the federal surveillance state. State and local government may not be able to completely shut down the federal surveillance state, but they certainly don’t have to participate.


    Michael Maharrey

    Michael Maharrey is the national communications director at the Tenth Amendment Center.

    This article was originally published on FEE.org. Read the original article.



  • Why We Have a Surveillance State

    “Gentlemen do not read each other’s mail.” Henry Stimson, Secretary of State, 1929

    I was upbraided recently by a dear friend for my frequent praise of outcast investor Peter Thiel over Thiel’s involvement with big data company Palantir. He forwarded me a Bloomberg article titled “Peter Thiel’s data-mining company is using War on Terror tools to track American citizens” adding: “Really scary. Not good for democracy; a better version of the Stasi’s filing system and way cheaper and more efficient.”

    Increasingly, we live under the kind of comprehensive surveillance predicted by science fiction writers. But Palantir is just an arms merchant, not the architect of our brave new world. Like gun manufacturers, its products can be used for good or evil.  I have always believed that moral responsibility lies with the wielder of weapons, not the manufacturers. (This is often expressed as “Guns don’t kill people, people kill people.”)

    Peter Thiel’s choice to become an arms merchant rather than invest his considerable talents and fortune elsewhere is a fair question given his libertarian leanings. I have no insight into the answer. I would guess that he founded Palantir as an act of patriotism after 9/11, and it metastasized following the money, cash being the mother’s milk of the state, something the celebrated Alexander Hamilton deeply understood.

    Surveillance Is Not the Problem, but It Is a Symptom

    The real threat to the republic, however, lies not in the weapons available but in the unlimited and unaccountable bureaucracy in Washington that deploys them, both at home and abroad. Having broken free of constitutional constraints, America’s political class now directs an all-powerful state that naturally adopts every tool technology has to offer.

    Because our prevailing governing philosophy acknowledges no limits to the doing of good or the thwarting of evil, any means necessary may be employed as long as worthy ends can be plausibly asserted. Evil must be discouraged, taxed, or outlawed; good must be encouraged, subsidized, or made mandatory. This progressive government mission must be implemented in the public square, in the marketplace, in our educational institutions, around the world, and in our homes until all forms of social injustice are eliminated.

    To be sure, such an expansive impulse is not unique. The communists felt the same way from the 1920s to the 1980s as did the fascists through the 1930s and 1940s, alarmingly making a recent comeback. But the sustained march of the progressive movement from Woodrow Wilson’s cartelization of the economy to support his War to End all Wars to FDR’s New Deal to LBJ’s Great Society to the spectacle of Obamacare outlasted all other pretenders. Progressivism has fueled a centralization of American power whose growth and global reach is unparalleled in human history. The end result is a multi-headed Leviathan that scoffs at the quaint notion that the federal government should be limited to the 17 powers enumerated in Article One, Section Eight of the Constitution.

    Examples of Democracy’s Dependence on Surveillance Abound

    Since the passage of the 16th amendment, we have learned to live with an Internal Revenue Service against which citizens have no right to privacy, no right to remain silent, and no presumption of innocence. This most invasive tax system ever devised insists on comprehensive intrusion into every citizen’s financial life, dragooning every employer, banker, broker, and financial intermediary into an unpaid spy network that makes Palantir look like a rank amateur. Government schools began educating us to submit to this kind of blanket surveillance as the price we pay for civilized society long before computers played a role.

    As Congress increasingly abdicated regulatory power to agencies of the executive branch a parallel judicial system emerged wherein administrative law courts act as legislators, prosecutors, police, judge, and jury in matters touching every aspect of our lives and businesses. This system, too, has a voracious appetite for information. How else to ensure that its tens of thousands of mandates, regulations, prohibitions, guidances, edicts, and reporting requirements are strictly obeyed? The opportunity to manipulate this shadow government invites a degree of lobbying and influence peddling that would make the Grant administration blush.

    Our national government was once unique in having only two crimes over which it claimed jurisdiction: treason and counterfeiting. This was due to the federalist architecture our founders devised, reserving ordinary police powers for the states. But such a division of powers did not hold. Our central government has since created a vast and complex criminal code with laws too numerous to count. This includes weaponized vagaries like conspiracy, wire fraud, and obstruction of justice that ensure crimes can be manufactured even after exhaustive investigations find that none have been committed.

    This has empowered a cabal of politicized federal prosecutors that can selectively indict anyone they please, using legal thuggery to threaten targets with bankruptcy to better extract plea bargains, which is why 90 percent of their cases never go to trial. These inquisitors also have the power to compel third parties to surrender vast troves of information that agents can comb through searching for anything that can be construed as a crime, even if these infractions bear no relation to the charges for which the target was originally indicted.

    So I disagree that comprehensive and inescapable surveillance is “not good for democracy.” It is the inevitable consequence of democracy, only recently empowered by the advent of big data and total interconnectedness. Our founders were rightly fearful of democracy, doing everything they could to make sure it never took root in America. Their efforts to preserve our liberty, our property, and our privacy failed, and we are paying the price.


    Bill Frezza

    Bill Frezza is the former host of RealClear Radio Hour and the author of New Zealand’s Far-Reaching Reforms: A Case Study in How to Save Democracy from Itself.

    This article was originally published on FEE.org. Read the original article.



  • The FISA Reauthorization Only Boosts Big Brother

     

    In a bipartisan manner, Congress recently passed the FISA Reauthorization Act of 2017. On January 19th, President Trump signed this bill into law. The new law extends the controversial Section 702 program that allows the NSA to conduct warrantless surveillance of non-US citizens or residents.

    This program clearly serves the interests of our intelligence agencies. However, the private information of millions of Americans is also collected in this program. And the private information of anyone in the US who communicates with someone outside of the country could potentially be stored in this massive database.

    Significant Privacy Issues

    How expansive is this program? The Washington Post reviewed a sample of communications from the Edward Snowden leaks and found that 9 out of 10 people in the database were not surveillance targets. Nearly half of these people were American citizens or residents, and their private information was swept up in this net.

    This isn’t just a matter of preserving privacy. Once information enters this program, all conventional constitutional law goes by the wayside. The FBI has access to this program to do “backdoor searches” for any crime without a warrant. That information can be passed along to whichever law enforcement agencies the FBI deems necessary. Furthermore, this isn’t a minor program that applies to a few people. There were an estimated 106,469 targets in 2016.

    Even former CIA and NSA director Michael Hayden has admitted that the FBI’s access to this information without a warrant is a “no-fooling legitimate issue.” Hence, a small but bipartisan group within Congress supported the USA RIGHTS Act that would have maintained national security intelligence without sacrificing Americans’ basic freedoms. The bill would have required a warrant for FBI access to US citizens’ communications.

    A group of five Senators, notably Ron Wyden (D-OR) and Rand Paul (R-KY), filibustered the FISA Reauthorization Act of 2017 in hopes of redirecting support for the USA Rights Act. Unfortunately, their effort was nullified when Sen. Claire McCaskill (D-MO) cast the deciding vote that ended the filibuster. She was one of 18 Democrats who voted in kind.

    Bear in mind, the Democrats have consistently criticized President Trump’s authoritarian ways, yet their support for this bill contradicted all of their pleas for responsible leadership. Moreover, this filibuster was nullified on January 16th, the day after the birthday of Martin Luther King, one of the foremost victims of federal government persecution.

    No Reform, Just Expansion

    Nonetheless, Congress passed this bill under the guise that reforms in favor of civil liberties had been made. The new law requires the FBI to obtain a warrant to search the 702 database for information about American citizens. However, there’s a catch. The FBI only needs to get a warrant if that person is already under criminal investigation. Consequently, this “reform” actually incentivizes the FBI to conduct more arbitrary searches and provides criminals with better protections.

    Some legal experts, such as Robyn Greene of the Open Technology Institute at New America, contest that the new law has also essentially reauthorized and expanded a practice that the NSA agreed to discontinue. This involves the collection of “about” data in which your personal communications can be swept up by the NSA for mentioning a person who is a target of surveillance. This decision poses a particular danger to the media or political activists.

    Furthermore, there were no reforms of a little-known system called “parallel construction.” As mentioned earlier, the information in the NSA’s database can be used by federal law enforcement agencies, particularly the DEA, for domestic operations. However, the government doesn’t have to disclose in a court of law that the investigation was initiated by information from the NSA. Considering that prosecutors can omit the origin of the investigation, a former DEA agent, Finn Selander, accurately criticized this practice by analogizing it as “money laundering” for evidence.

    There are many disturbing revelations about the FISA Reauthorization Act. Suffice it to say, Congress provided a tremendous amount of latitude to an agency that has shown no determination for reform in the wake of high-profile scandals. As a matter of fact, on the same day that President Trump signed the FISA Reauthorization Act, Politico reported that the NSA destroyed info related to Bush’s warrantless wiretaps. That “mistake” was quite convenient because that information was to be used as evidence in pending lawsuits against the government.

    A pair of Trump tweets illustrated some of the hypocrisy on this issue. At 4:33 in the morning on January 11th, Trump’s tweet asserted that the FISA Act “may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump campaign by the previous administration and others?” Nearly two hours later, he flipped his stance tweeting, “With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!”

    As easy as it is to poke fun at Trump on this issue, his views related to authoritarian government surveillance aren’t much different from most Americans. Polls show that public opinion on NSA spying shifts back and forth depending upon who is in the White House. In other words, liberal or conservative voters generally aren’t opposed to mass surveillance as long as their party is in power.

    Both sides can point to a list, which is far too lengthy for this space, of federal government abuses for political purposes. However, the two major parties have continued raising the stakes by providing more power to the federal government with few meaningful reforms.

    No Protection of Whistleblowers

    The FISA Reauthorization Act received strong support from the Republicans despite the backdrop of the “Nunes memo” alleging misconduct towards President Trump. Over the last year, conservatives have heard from NSA whistleblower William Binney who is now a frequent guest on Fox News. Binney was persona non grata during the Bush administration, but now his revelations indirectly help build a narrative that the Deep State is suppressing Trump.  

    Binney and his fellow NSA whistleblowers felt the wrath of the FBI for merely speaking truth to power. Ironically, the disturbing information from intelligence whistleblowers led to the creation of the 702 program, which was approved by Congress in 2008, in part, to rein in the warrantless wiretaps by the Bush administration.

    In an environment where there is no real government accountability, it elevates the importance of whistleblower protection. Nonetheless, numerous government whistleblowers have faced retaliation for merely performing their civic duty. The latest victim being Dan Meyer, the director of the Intelligence Community Whistleblowing and Source Protection program.

    Meyer was escorted out of the building in December of last year, and his office was marked with police tape. He has been placed on leave and faces termination in an act of clear retribution. For several years, Meyers has worked as an advocate for whistleblowers in the Defense Department.

    This is a familiar situation for Meyer personally as he has acted as a whistleblower in the past. He once received a settlement from the government due to the retribution he faced after disclosing that Leon Panetta allegedly leaked classified material to the directors of Zero Dark Thirty. In his current situation, Meyer is reportedly facing retaliation for pressuring the inspector generals from the 17 intelligence agencies to implement better whistleblower protections.

    We face a system that punishes the reformers and rewards the most corrupt. For years, an AT&T technician, Mark Klein, warned of the secret backroom that connected to the NSA. His efforts were suppressed from the public eye until leaks from NSA whistleblowers were printed by the press. Nonetheless, AT&T has been rewarded handsomely with a multi-billion contract that was reported last week.

    Unfortunately, public outrage against government abuses is generally selective and partisan. All in all, both major political parties use critical rhetoric that warns of the power of Big Brother, yet neither entity does much to prevent the growth of the surveillance state.


    Brian Saady

    Brian Saady is a freelance writer who focuses on a number of human rights and criminal justices issues. He’s also the author of four books, including a three-book series, Rackets, which is about the legalization of drugs and gambling, and the decriminalization of prostitution.

    This article was originally published on FEE.org. Read the original article.