Entries Tagged "courts"

Page 19 of 32

The Constitutionality of Full-Body Scanners

Jeffrey Rosen opines:

Although the Supreme Court hasn’t evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that “a particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.'”

In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both “minimally intrusive” and “effective” – in other words, they must be “well-tailored to protect personal privacy,” and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.”

As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests.

In other news, The New York Times wrote an editorial in favor of the scanners. I was surprised.

Posted on November 30, 2010 at 12:09 PM • View Comments

The FBI is Tracking Whom?

They’re tracking a college student in Silicon Valley. He’s 20, partially Egyptian, and studying marketing at Mission College. He found the tracking device attached to his car. Near as he could tell, what he did to warrant the FBI’s attention is be the friend of someone who did something to warrant the FBI’s attention.

Afifi retrieved the device from his apartment and handed it over, at which point the agents asked a series of questions ­ did he know anyone who traveled to Yemen or was affiliated with overseas training? One of the agents produced a printout of a blog post that Afifi’s friend Khaled allegedly wrote a couple of months ago. It had “something to do with a mall or a bomb,” Afifi said. He hadn’t seen it before and doesn’t know the details of what it said. He found it hard to believe Khaled meant anything threatening by the post.

Here’s the Reddit post:

bombing a mall seems so easy to do. i mean all you really need is a bomb, a regular outfit so you arent the crazy guy in a trench coat trying to blow up a mall and a shopping bag. i mean if terrorism were actually a legitimate threat, think about how many fucking malls would have blown up already.. you can put a bag in a million different places, there would be no way to foresee the next target, and really no way to prevent it unless CTU gets some intel at the last minute in which case every city but LA is fucked…so…yea…now i’m surely bugged : /

Here’s the device. Here’s the story, told by the student who found it.

This weird story poses three sets of questions.

  1. Is the FBI’s car surveillance technology that lame? Don’t they have bugs that are a bit smaller and less obtrusive? Or are they surveilling so many people that they’re forced to use the older models as well as the newer, smaller, stuff?

    From a former FBI agent:

    The former agent, who asked not to be named, said the device was an older model of tracking equipment that had long ago been replaced by devices that don’t require batteries. Batteries die and need to be replaced if surveillance is ongoing so newer devices are placed in the engine compartment and hardwired to the car’s battery so they don’t run out of juice. He was surprised this one was so easily found.

    “It has to be able to be removed but also stay in place and not be seen,” he said. “There’s always the possibility that the car will end up at a body shop or auto mechanic, so it has to be hidden well. It’s very rare when the guys find them.”

  2. If they’re doing this to someone so tangentially connected to a vaguely bothersome post on an obscure blog, just how many of us have tracking devices on our cars right now—perhaps because of this blog? Really, is that blog post plus this enough to warrant surveillance?

    Afifi’s father, Aladdin Afifi, was a U.S. citizen and former president of the Muslim Community Association here, before his family moved to Egypt in 2003. Yasir Afifi returned to the United States alone in 2008, while his father and brothers stayed in Egypt, to further his education he said. He knows he’s on a federal watchlist and is regularly taken aside at airports for secondary screening.

  3. How many people are being paid to read obscure blogs, looking for more college students to surveil?

Remember, the Ninth Circuit Court recently ruled that the police do not need a warrant to attach one of these things to your car. That ruling holds true only for the Ninth Circuit right now; the Supreme Court will probably rule on this soon.

Meanwhile, the ACLU is getting involved:

Brian Alseth from the American Civil Liberties Union in Washington state contacted Afifi after seeing pictures of the tracking device posted online and told him the ACLU had been waiting for a case like this to challenge the ruling.

“This is the kind of thing we like to throw lawyers at,” Afifi said Alseth told him.

“It seems very frightening that the FBI have placed a surveillance-tracking device on the car of a 20-year-old American citizen who has done nothing more than being half-Egyptian,” Alseth told Wired.com.

Posted on October 13, 2010 at 6:20 AM • View Comments

Misidentification and the Court System

Chilling:

How do most wrongful convictions come about?

The primary cause is mistaken identification. Actually, I wouldn’t call it mistaken identification; I’d call it misidentification, because you often find that there was some sort of misconduct by the police. In a lot of cases, the victim initially wasn’t so sure. And then the police say, “Oh, no, you got the right guy. In fact, we think he’s done two others that we just couldn’t get him for.” Or: “Yup, that’s who we thought it was all along, great call.”

It’s disturbing that misidentifications still play such a large role in wrongful convictions, given that we’ve known about the fallibility of eyewitness testimony for over a century.

In terms of empirical studies, that’s right. And 30 or 40 years ago, the Supreme Court acknowledged that eyewitness identification is problematic and can lead to wrongful convictions. The trouble is, it instructed lower courts to determine the validity of eyewitness testimony based on a lot of factors that are irrelevant, like the certainty of the witness. But the certainty you express [in court] a year and half later has nothing to do with how certain you felt two days after the event when you picked the photograph out of the array or picked the guy out of the lineup. You become more certain over time; that’s just the way the mind works. With the passage of time, your story becomes your reality. You get wedded to your own version.

And the police participate in this. They show the victim the same picture again and again to prepare her for the trial. So at a certain point you’re no longer remembering the event; you’re just remembering this picture that you keep seeing.

Posted on August 30, 2010 at 12:05 PM • View Comments

Is the Whole Country an Airport Security Zone?

Full-body scanners in roving vans:

American Science & Engineering, a company based in Billerica, Massachusetts, has sold U.S. and foreign government agencies more than 500 backscatter x-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents, Joe Reiss, a vice president of marketing at the company told me in an interview.

This should be no different than the Kyllo case, where the Supreme Court ruled that the police needed a warrant before they can use a thermal sensor on a building to search for marijuana growers.

Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant.

Posted on August 27, 2010 at 7:58 AM • View Comments

Filming the Police

In at least three U.S. states, it is illegal to film an active duty policeman:

The legal justification for arresting the “shooter” rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where “no expectation of privacy exists” (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, “[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want.” Legal scholar and professor Jonathan Turley agrees, “The police are basing this claim on a ridiculous reading of the two-party consent surveillance law—requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense.”

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler’s license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

This is a horrible idea, and will make us all less secure. I wrote in 2008:

You cannot evaluate the value of privacy and disclosure unless you account for the relative power levels of the discloser and the disclosee.

If I disclose information to you, your power with respect to me increases. One way to address this power imbalance is for you to similarly disclose information to me. We both have less privacy, but the balance of power is maintained. But this mechanism fails utterly if you and I have different power levels to begin with.

An example will make this clearer. You’re stopped by a police officer, who demands to see identification. Divulging your identity will give the officer enormous power over you: He or she can search police databases using the information on your ID; he or she can create a police record attached to your name; he or she can put you on this or that secret terrorist watch list. Asking to see the officer’s ID in return gives you no comparable power over him or her. The power imbalance is too great, and mutual disclosure does not make it OK.

You can think of your existing power as the exponent in an equation that determines the value, to you, of more information. The more power you have, the more additional power you derive from the new data.

Another example: When your doctor says “take off your clothes,” it makes no sense for you to say, “You first, doc.” The two of you are not engaging in an interaction of equals.

This is the principle that should guide decision-makers when they consider installing surveillance cameras or launching data-mining programs. It’s not enough to open the efforts to public scrutiny. All aspects of government work best when the relative power between the governors and the governed remains as small as possible—when liberty is high and control is low. Forced openness in government reduces the relative power differential between the two, and is generally good. Forced openness in laypeople increases the relative power, and is generally bad.

EDITED TO ADD (7/13): Another article. One jurisdiction in Pennsylvania has explicitly ruled the opposite: that it’s legal to record police officers no matter what.

Posted on June 16, 2010 at 1:36 PM • View Comments

Dating Recordings by Power Line Fluctuations

Interesting:

The capability, called “electrical network frequency analysis” (ENF), is now attracting interest from the FBI and is considered the exciting new frontier in digital forensics, with power lines acting as silent witnesses to crime.

In the “high profile” murder trial, which took place earlier this year, ENF meant prosecutors were able to show that a seized voice recording that became vital to their case was authentic. Defence lawyers suggested it could have been concocted by a witness to incriminate the accused.

[…]

ENF relies on frequency variations in the electricity supplied by the National Grid. Digital devices such as CCTV recorders, telephone recorders and camcorders that are plugged in to or located near the mains pick up these deviations in the power supply, which are caused by peaks and troughs in demand. Battery-powered devices are not immune to to ENF analysis, as grid frequency variations can be induced in their recordings from a distance.

At the Metropolitan Police’s digital forensics lab in Penge, south London, scientists have created a database that has recorded these deviations once every one and a half seconds for the last five years. Over a short period they form a unique signature of the electrical frequency at that time, which research has shown is the same in London as it is in Glasgow.

On receipt of recordings made by the police or public, the scientists are able to detect the variations in mains electricity occurring at the time the recording was made. This signature is extracted and automatically matched against their ENF database, which indicates when it was made.

The technique can also uncover covert editing—or rule it out, as in the recent murder trial—because a spliced recording will register more than one ENF match.

Posted on June 16, 2010 at 7:00 AM • View Comments

If You See Something, Think Twice About Saying Something

“If you see something, say something.” Or, maybe not:

The Travis County Criminal Justice Center was closed for most of the day on Friday, May 14, after a man reported that a “suspicious package” had been left in the building. The court complex was evacuated, and the APD Explosive Ordinance Disposal Unit was called in for a look-see. The package in question, a backpack, contained paperwork but no explosive device. The building reopened at 1:40pm. The man who reported the suspicious package, Douglas Scott Hoopes, was arrested and charged with making a false report and booked into the jail. The charge is a felony punishable by up to two years in jail.

I don’t think we can have it both ways. We expect people to report anything suspicious—even dumb things—and now we want to press charges if they report something that isn’t an actual threat. Truth is, if you ask amateurs to act as front-line security personnel, you shouldn’t be surprised when you get amateur security.

I think this excerpt from a poem by Rick Moranis says it best:

If you see something,
Say something.
If you say something,
Mean something.
If you mean something,
You may have to prove something.
If you can’t prove something,
You may regret saying something.

There’s more.

EDITED TO ADD (5/26): Seems like he left the package himself, and then called it in. So there’s ample reason to arrest him. Never mind.

Posted on May 26, 2010 at 9:16 AM • View Comments

Nobody Encrypts their Phone Calls

From the Forbes blog:

In an annual report published Friday by the U.S. judicial system on the number of wiretaps it granted over the past year …, the courts revealed that there were 2,376 wiretaps by law enforcement agencies in 2009, up 26% from 1,891 the year before, and up 76% from 1999. (Those numbers, it should be noted, don’t include international wiretaps or those aimed at intelligence purposes rather than law enforcement.)

But in the midst of that wiretapping bonanza, a more surprising figure is the number of cases in which law enforcement encountered encryption as a barrier: one.

According to the courts, only one wiretapping case in the entire country encountered encryption last year, and in that single case, whatever privacy tools were used don’t seemed to have posed much of a hurdle to eavesdroppers. “In 2009, encryption was encountered during one state wiretap, but did not prevent officials from obtaining the plain text of the communications,” reads the report.

Posted on May 6, 2010 at 7:06 AM • View Comments

Marc Rotenberg on Google's Italian Privacy Case

Interesting commentary:

I don’t think this is really a case about ISP liability at all. It is a case about the use of a person’s image, without their consent, that generates commercial value for someone else. That is the essence of the Italian law at issue in this case. It is also how the right of privacy was first established in the United States.

The video at the center of this case was very popular in Italy and drove lots of users to the Google Video site. This boosted advertising and support for other Google services. As a consequence, Google actually had an incentive not to respond to the many requests it received before it actually took down the video.

Back in the U.S., here is the relevant history: after Brandeis and Warren published their famous article on the right to privacy in 1890, state courts struggled with its application. In a New York state case in 1902, a court rejected the newly proposed right. In a second case, a Georgia state court in 1905 endorsed it.

What is striking is that both cases involved the use of a person’s image without their consent. In New York, it was a young girl, whose image was drawn and placed on an oatmeal box for advertising purposes. In Georgia, a man’s image was placed in a newspaper, without his consent, to sell insurance.

Also important is the fact that the New York judge who rejected the privacy claim, suggested that the state assembly could simple pass a law to create the right. The New York legislature did exactly that and in 1903 New York enacted the first privacy law in the United States to protect a person’s “name or likeness” for commercial use.

The whole thing is worth reading.

EDITED TO ADD (3/18): A rebuttal.

Posted on March 9, 2010 at 12:36 PM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.