As bodycams roll out in more and more American police departments, officers are asking to be allowed to review footage of shootings before they file their reports, on the grounds that fallible memories from high-stress moments can be augmented by footage -- but of course, this would also help an officer know how much he can lie without getting contradicted by the video evidence.
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At 1:30pm on Christmas Eve, the NSA dumped a huge cache of documents on its website in response to a long-fought ACLU Freedom of Information Act request, including documents that reveal criminal wrongdoing.
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An ACLU Freedom of Information request reveals that the NSA considers Reagan's "Executive Order 12333" (previously) its "primary source" of spying authority -- and so it conducts this surveillance without reporting to Congress on it.
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Logan County, Oklahoma Sheriff Jim Bauman created an extensive set of secret files on the citizens in his jurisdiction, inadvertently recreating Welcome to Nightvale's running gag about the Sheriff's Secret Police -- but the ACLU isn't laughing, they're suing.
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The ACLU reports [PDF] that when it made Freedom of Information requests for Massachusetts SWAT team records, the SWATs claimed that because they were organized as "law enforcement councils" (jointly owned by many police departments, with additional federal funding) that they were not government agencies at all, but rather private corporations, and not subject to open records laws.
SWATs are the white-hot center of the increasingly brutal and militarized response of US police forces, which have outfitted themselves with ex-Afghanistan/Iraq military materiel and have deployed it in an escalating violent series of attacks, largely as part of the war on drugs. As Radley Balko writes in the Washington Post, the SWATs' claim to be private companies doesn't pass the giggle test: they are funded by the government, pay government employees, and do the government's business.
The argument boils down to this: we are not the police, we are private mercenaries armed with automatic weapons and military-grade vehicles and equipment, and when we attack and kill in the streets of American cities, we do so as private soldiers who happen to be funded by the police departments' budgets.
The ACLU is suing the North Eastern Massachusetts Law Enforcement Council to challenge this ruse, but even if they win, this should be setting off alarm bells for anyone who believes in good government and responsible policing. The cornerstone of democratic legitimacy is a duty to the public, with all the transparency and respect that implies. When police forces up and down the state structure themselves to create and exploit a loophole that lets them obscure the details of their most violent, most spectacular screw-ups -- which generally result in gruesome injuries and deaths to innocent members of the public -- there is no way they can claim to be acting in the public interest.
The fact that the city governments that oversee these departments and the federal agencies that fund the LECs have been complicit in this suggests that this isn't a matter of police overreach, but rather is a policy that goes literally all the way to the top of the policing regulatory structure in America.
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Remember the secret memo explaining the legal justification for assassinating Americans with drones that the ACLU forced the Obama administration to release? Turns out that that memo relies on another secret memo that the Obama administration is also relying on. Obama is a no-fooling Constitutional scholar; you'd think that he'd be wise to the idea that secret law is not law at all.
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It’s been one year.
Technology has been a liberating force in our lives. It allows us to create and share the experiences that make us human, effortlessly. But in secret, our very own government—one bound by the Constitution and its Bill of Rights—has reverse-engineered something beautiful into a tool of mass surveillance and oppression. The government right now can easily monitor whom you call, whom you associate with, what you read, what you buy, and where you go online and offline, and they do it to all of us, all the time.
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Josh from the ACLU writes, "To mark this Thursday's one-year anniversary of the first NSA revelation from Edward Snowden, we've made a very cool video showing what's happened so far (and yes that is Snowden's voice at the end). You've not seen an NSA video like this before. We've also created a guide (PDF) to what we think needs to be done for surveillance reform by Congress, the president, the courts, and tech companies."
They Knew Our Secrets. One Year Later, We Know Theirs.
The ACLU and SXSW will host a video chat with Edward Snowden on Monday, during the day's civil-liberties-focused program track. I'll be speaking immediately before Snowden, with Barton Gellman, and we will be staying for the Snowden event. Snowden will be interviewed by ACLU technologist Christopher Soghoian, and the event is moderated by the ACLU's Ben Wizner. I hope to see you there -- it's why I'm flying to Austin.
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The ACLU has produced a video based on its Meet Jack. Or, What The Government Could Do With All That Location Data slide presentation from 2013. It's a chilling and sometimes funny look at the way that location data can be used to compromise you in ways large and small. As Josh from the ACLU notes, "It's especially interesting after the news yesterday about the DHS plan for a national license plate location history database (which got scrapped after it was exposed)."
Meet Jack. Or, What The Government Could Do With That Location Data
The ACLU is representing Scott and Sharon Lane, the parents of a child known in the proceedings as "CC," in a case against the Sabine Parish, Louisiana School Board, where their child was ridiculed for his Buddhist faith, and was forced to endure Christian indoctrination, including forced prayer, in the class. They say that their son's sixth grade curriculum included exam questions like "ISN'T IT AMAZING WHAT THE _____________ HAS MADE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" (the correct answer was "LORD"). The school superintendent told them that they had no business being upset by this, because the school is in the Bible Belt, and he recommended sending the child to a school 25 miles away where there were "more Asians."
The ACLU is calling on supporters of the Lanes and CC to sign a petition to Attorney General Eric Holder, asking for a "an immediate investigation into unlawful religious discrimination in Sabine Parish public schools."
To the right, the charming logo of Negreet High, whose school team is the "Negreet Indians."
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Last October, the Justice Department made a seemingly cosmetic change to its procedures related to NSA surveillance: requiring prosecutors to tell defendants when the evidence against them originated with a warrantless wiretap (remember that the NSA made a practice of handing warrantless wiretapping data over to the DEA and other agencies, who would then request a warrant in order to create a plausible, public source of evidence).
But that change made all the difference. Last year, the Supreme Court ruled that you couldn't sue the government over warrantless wiretapping unless you had direct evidence that you'd been spied on. The catch? The only way to get evidence that you'd been spied on was to sue the government, which you couldn't do without evidence.
The first defendant to be notified that the case against him was built on warrantless wiretaps is an Uzbek human rights activist who lives in Colorado, named Jamshid Muhtorov. Under the new rules, Muhtorov now has the evidence he needs to challenge the government's program of warrantless surveillance -- and that's just what he's doing. The ACLU has taken his case, and have filed a motion [PDF] challenging the evidence against him.
A win for Muhtorov would be a win for America, and for everyone who believes that you can't fight crime while ignoring the law.
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The ACLU and members of the Insane Clown Posse have filed a lawsuit against the FBI over its classification of the Juggalos (ICP fans) as a gang. Once the FBI calls your subculture a gang, you lose a bunch of rights: the cops treat visible symbols of affiliation as probable cause for stop-and-search, you're prohibited from joining the military, and you are generally discriminated against by government officials.
The best part of the whole thing is that the plaintiffs came to the press-conference in full ICP makeup.
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The ACLU has spent years in court trying to get a look at a top-secret FBI interrogation manual that referred to the CIA's notorious KUBARK torture manual. The FBI released a heavily redacted version at one point -- so redacted as to be useless for determining whether its recommendations were constitutional.
However, it turns out that the FBI agent who wrote the manual sent a copy to the Library of Congress in order to register a copyright in it -- in his name! (Government documents are not copyrightable, but even if they were, the copyright would vest with the agent's employer, not the agent himself). A Mother Jones reporter discovered the unredacted manual at the Library of Congress last week, and tipped off the ACLU about it.
Anyone can inspect the manual on request. Go see for yourself!
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Jack from the ACLU sez, "We just posted a parody music video that pokes fun at the NSA with some holiday spirit (and some 'Jackass' thrown in for good measure)."
The NSA is Coming to Town
In Meet Jack. Or, What The Government Could Do With All That Location Data, the ACLU's Jay Stanley presents a slide deck from the near future in which a government intelligence service presents a glowing account of how it convicted "Jack R Benjamin" of DUI pre-crime, by watching all the places he went, all the people he interacted with, and using an algorithm to predict that he would commit a DUI, and, on that basis, to peer into every corner of his personal life.
The use of the slide deck is inspired here, echoing as it does the Snowden leaks (Snowden had been tasked with consolidating training documents from across the NSA, which is why he had access to such a wide variety of documents, and why they're all in powerpoint form). And the kind of data-mining here is not only plausible, it's likely -- it's hard to imagine cops not availing themselves of this capability.
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Sandra from the ACLU writes, "As the scope and depth of the NSA's spying continues to grow, we cannot forget about similar privacy violations committed by state and local police. The primary law protecting against such violations -- The Electronic Communications Privacy Act (ECPA) -- was passed in 1986. Technology has evolved quite a bit since then, as you may have noticed. ECPA, unfortunately, has not, allowing local, state, and federal law enforcement to access our sensitive data in the cloud without a warrant."
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The ACLU is representing a New Mexico woman in her fifties who was subjected by federal agents to a two-handed (!) vaginal and anal examination, an involuntary X-ray and CAT scan, and was forced to defecate in front of strangers. The woman was suspected of being in possession of drugs, on the basis of a drug-dog alert at the Juarez/El Paso border-crossing. No drugs were found. The federal agents -- it's not clear what agency they were with -- did not obtain a warrant. The doctors at University Medical Center in El Paso performed the procedures without the victim's consent, including the CT scan, which subjects people to a high dose of potentially harmful radiation.
The ACLU of New Mexico is certainly developing some deep expertise on the subject of involuntary, drug-war anal probes: see this earlier story by Mark.
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Rainey from EFF sez, "On the weekend of October 26 -- the 12th anniversary of the signing of the USA PATRIOT Act -- thousands of people from across the political spectrum will unite in Washington, D.C. to take a stand against unconstitutional surveillance. Groups like EFF, ACLU and reddit are using the event to pressure Congress to stop mass spying -- and dropping off a petition with over 500,000 signatures to show they're serious. There will be speakers, privacy experts, and lots of music - including YACHT, the indie pop duo that's sweeping the nation with its new song, 'Party at the NSA.'"
The DHS has responded to a Freedom of Information Act request filed by the ACLU asking when and how it decides whose laptop to search at the border. It explained its legal rationale for conducting these searches with a blank page:
On Page 18 of the 52-page document under the section entitled “First Amendment,” several paragraphs are completely blacked out. They simply end with the sentence: “The laptop border searches in the [Immigration and Customs Enforcement] and [Customs and Border Protection] do not violate travelers’ First Amendment rights as defined by the courts."
More excellence from "the most transparent administration in American history." Also, the DHS rejected claims that it should limit searches to situations where it had reasonable grounds for suspicion, because then they would have to explain their suspicion:
First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.
Feds say they can search your laptop at the border but won’t say why [Cyrus Farivar/Ars Technica]
After Arijit got thrown off of a Delta flight for wearing a TSA-mocking t-shirt I designed, a lot of people began to email, asking where they could buy one for themselves. Well, it seemed a bit weird to do a reissue and pocket a royalty for a shirt on the basis of someone else's legal hassles, so I worked with Arijit and Woot, and we've decided to reissue the shirt with all the profits being divided evenly between EFF, the ACLU, and the Southern Poverty Law Center. Get yours today for a mere $15! Wear it with pride! Don't blame me if you get kicked off an airplane!
Also available in handsome tote form at $10 each.
Threat Level: Doctorow
ACLU affiliates across America requested information on local law enforcement's use of cell-phone tracking, and received a wealth of disturbing information about the extent of wireless tracking. They produced a map showing which police departments were discovered to be tracking people's phones without a warrant, either by getting gutless phone companies to fink out their own customers for warrantless fishing expeditions, or by buying some kind of "cell phone tracking equipment."
Many law enforcement agencies track cell phones quite frequently. For example, based on invoices from cell phone companies, it appears that Raleigh, N.C. tracks hundreds of cell phones a year. The practice is so common that cell phone companies have manuals for police explaining what data the companies store, how much they charge police to access that data, and what officers need to do to get it.
Most law enforcement agencies do not obtain a warrant to track cell phones, but some do, and the legal standards used vary widely. Some police departments protect privacy by obtaining a warrant based upon probable cause when tracking cell phones. For example, police in the County of Hawaii, Wichita, and Lexington, Ky. demonstrate probable cause and obtain a warrant when tracking cell phones. If these police departments can protect both public safety and privacy by meeting the warrant and probable cause requirements, then surely other agencies can as well.
Unfortunately, other departments do not always demonstrate probable cause and obtain a warrant when tracking cell phones. For example, police in Lincoln, Neb. obtain even GPS location data, which is more precise than cell tower location information, on telephones without demonstrating probable cause. Police in Wilson County, N.C. obtain historical cell tracking data where it is "relevant and material" to an ongoing investigation, a standard lower than probable cause.
Police use various methods to track cell phones. Most commonly, law enforcement agencies obtain cell phone records about one person from a cell phone carrier. However, some police departments, like in Gilbert, Ariz., have purchased their own cell tracking technology.
Is Your Local Law Enforcement Tracking Your Cell Phone's Location? (via /.)
The ACLU has brought suit against the Minnewaska (Minnesota) Area Schools and Pope County over invasions of students' privacy relating to a pair of incidents. In the first incident, a 12-year-old student was disciplined for complaining on Facebook that she "hated" a hall monitor who was "mean" (the school characterized this as "bullying"). In the second instance, a sheriff's deputy and school administrators required the student to turn over her Facebook password after her boyfriend's mother complained that the student and her boyfriend had been talking about sex on the social network.
In both instances, the student used her own, off-school computer to make the contentious remarks, after school hours.
The ACLU claimed a sheriff's deputy was present at the time, but there was no warrant. The group claimed this violated the girl's right to privacy and right to be free from unreasonable search and seizure.
"She was intimidated, frightened, humiliated and sobbing while school administrators were scouring her private communications," attorney Wally Hilke said in a statement. "These adults traumatized this minor without any regard for her rights."
The girl's mother filed the lawsuit on her daughter's behalf.
Apart from unspecified damages, the suit seeks a court order "restrain[ing] school officials from attempts to regulate or discipline students based on speech made outside of school hours and off school property."
ACLU sues Minnewaska schools, Pope Co. Sheriff's Office over student Facebook incidents
The ACLU of Massachusetts is representing an anonymous Twitter user who has been targetted by an Assistant DA who is trying to build a case related to Occupy Boston; the court and the ADA have sealed the proceedings, so no one -- not even some of the ACLU staff working on the case -- is allowed to know what is going on:
I had gone to court to listen to our legal team argue a case to protect the First Amendment rights of our client, Twitter user @p0isAn0n, aka Guido Fawkes. That user, who wishes to remain anonymous throughout the proceedings, was the target of a Suffolk County Assistant District Attorney’s administrative subpoena to Twitter, dated December 14, 2011. As we wrote last week, the subpoena asked Twitter to hand over @p0isAn0n’s subscriber information, including our client’s IP address, which can be used to help track down someone’s physical residence...
The known knowns: the scrum of lawyers, defense and prosecution, addressed the judge. I saw the judge speak to the lawyers. Then I saw our attorneys return to their bench, closer to where I was sitting, out of earshot of the sidebar. But the ADA stayed with the judge. He spoke to her, with his back to the courtroom, for about ten minutes. Our attorneys didn’t get to hear what he said to her, didn’t have a chance to respond to whatever the government was saying about our client, about the case. It was frankly shocking.
After those ten minutes of secret government-judge conversation, our attorneys were invited back to the sidebar, whereupon the scrum of lawyers spoke with the judge for another ten or fifteen minutes. Then they dispersed. The judge uttered not one word to the open court. And that was it.
Stunned, I followed a group of reporters outside and listened as Attorney Krupp attempted to answer their questions. It was then I realized that the judge had impounded all the court records related to the case, and mandated complete secrecy governing the proceedings. The public wasn’t even to know whether our motion to quash had been approved or denied.
WTF? (What the Fawkes?)
The ACLU of Tennessee has brought suit against US Immigration and Customs Enforcement after a warrantless raid on an apartment complex where ICE officers believed some illegal immigrants were housed. After ICE agents broke into the complex and were asked for a warrant, one agent reportedly said, "We don't need a warrant, we're ICE," and, gesturing to his genitals, "the warrant is coming out of my balls."
Among the plaintiffs are U.S. citizens, including a child detained and interrogated while playing soccer on the playground simply because of the color of his skin. Looking Latino and speaking Spanish is not enough to justify probable cause for questioning and arresting a person. Another plaintiff was carted away in handcuffs in front of his frightened and crying children.
Unfortunately, the Clairmont raid is not an isolated incident. As the Department of Homeland Security and its enforcement arm, ICE, expand their aggressive immigration enforcement policies, all too often the constitutional rights afforded to everyone living in the United States are violated. Even as ICE carries out its mission, it must act in accordance with the law and in a manner that is humane.