Free Markets, Free People

4th Amendment

US terrorism agency free to use government databases of US citizens

It is coming to the point that it is obvious that the terrorists have won.  Why?  Because they have provided government the excuse to intrude more and more into our lives and government is more than willing to use it.  If this doesn’t bother you, you’re not paying attention:

Top U.S. intelligence officials gathered in the White House Situation Room in March to debate a controversial proposal. Counterterrorism officials wanted to create a government dragnet, sweeping up millions of records about U.S. citizens—even people suspected of no crime.

Not everyone was on board. “This is a sea change in the way that the government interacts with the general public,” Mary Ellen Callahan, chief privacy officer of the Department of Homeland Security, argued in the meeting, according to people familiar with the discussions.

A week later, the attorney general signed the changes into effect.

Of course the Attorney General signed the changes into effect.  He’s as big a criminal as the rest of them.

What does this do?  Well here, take a look:

The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation.

Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited.

Your activities are now presumed to be “suspicious”, one assumes, just by existing and doing the things you’ve always done.  Host a foreign exchange student?  Go under surveillance.  Fly anywhere the government arbitrarily decides is tied into terrorists (or not) it is surveillance for you (can the “no-fly” list be far behind?).  Work in a casino, go onto a surveillance list.

And all of this by unaccountable bureaucrats who have unilaterally decided that your 4th Amendment rights mean zip.  In fact, they claim that the 4th doesn’t apply here.

Congress specifically sought to prevent government agents from rifling through government files indiscriminately when it passed the Federal Privacy Act in 1974. The act prohibits government agencies from sharing data with each other for purposes that aren’t “compatible” with the reason the data were originally collected.

But:

But the Federal Privacy Act allows agencies to exempt themselves from many requirements by placing notices in the Federal Register, the government’s daily publication of proposed rules. In practice, these privacy-act notices are rarely contested by government watchdogs or members of the public. “All you have to do is publish a notice in the Federal Register and you can do whatever you want,” says Robert Gellman, a privacy consultant who advises agencies on how to comply with the Privacy Act.

As a result, the National Counterterrorism Center program’s opponents within the administration—led by Ms. Callahan of Homeland Security—couldn’t argue that the program would violate the law. Instead, they were left to question whether the rules were good policy.

Under the new rules issued in March, the National Counterterrorism Center, known as NCTC, can obtain almost any database the government collects that it says is “reasonably believed” to contain “terrorism information.” The list could potentially include almost any government database, from financial forms submitted by people seeking federally backed mortgages to the health records of people who sought treatment at Veterans Administration hospitals.

So they just exempted themselves without any outcry, without any accountability, without any review.  They just published they were “exempt” from following the law of the land or worrying about 4th Amendment rights.

Here’s the absolutely hilarious “promise” made by these criminals:

Counterterrorism officials say they will be circumspect with the data. “The guidelines provide rigorous oversight to protect the information that we have, for authorized and narrow purposes,” said Alexander Joel, Civil Liberties Protection Officer for the Office of the Director of National Intelligence, the parent agency for the National Counterterrorism Center.

What a load of crap.  If you believe that you’ll believe anything government says.  Human nature says they’ll push this to whatever limit they can manage until someone calls their hand.

And, as if that’s all not bad enough:

The changes also allow databases of U.S. civilian information to be given to foreign governments for analysis of their own. In effect, U.S. and foreign governments would be using the information to look for clues that people might commit future crimes.

So now our government is free to provide foreign governments with information about you, whether you like it or not.

This isn’t a new idea – here’s a little flashback from a time when people actually raised hell about stuff like this:

“If terrorist organizations are going to plan and execute attacks against the United States, their people must engage in transactions and they will leave signatures,” the program’s promoter, Admiral John Poindexter, said at the time. “We must be able to pick this signal out of the noise.”

Adm. Poindexter’s plans drew fire from across the political spectrum over the privacy implications of sorting through every single document available about U.S. citizens. Conservative columnist William Safire called the plan a “supersnoop’s dream.” Liberal columnist Molly Ivins suggested it could be akin to fascism. Congress eventually defunded the program.

Do you remember this? Do you remember how much hell was raised about this idea?  However now, yeah, not such a big deal:

The National Counterterrorism Center’s ideas faced no similar public resistance. For one thing, the debate happened behind closed doors. In addition, unlike the Pentagon, the NCTC was created in 2004 specifically to use data to connect the dots in the fight against terrorism.

What a surprise.

I’m sorry, I see no reason for an unaccountable Matthew Olsen or his NCTC to know anything about me or have the ability to put a file together about me, keep that information for five years and, on his decision and his decision only, provide the information on me to foreign governments at his whim.

I remember the time the left went bonkers about the “Privacy Act”.  Here’s something real to go bonkers on and what sound do we hear from the left (and the right, for that matter)?

Freakin’ crickets.

~McQ

What part of the 4th Amendment does law enforcement not understand?

I don’t know about you, but this seems such a clear thing to me.  If law enforcement is going to put any sort of a tracking device on a citizen’s vehicle, they need to obtain a warrant first.  See 4th Amendment:

The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

[…]

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Specifically:

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

The government, in this case, had put a GPS device on the target’s vehicle without a warrant, monitored it for 28 days and then used that information at his trial (he was convicted on cocaine trafficking charges and given a life sentence).

The reason I think this should have been a no-brainer for LEOs is the fact that the SCOTUS decision was unanimous. 

When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”

Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”

Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.

Ok, get a freaking warrant first. 

What this decision does is uphold a Constitutional right that has been under assault for quite some times.   The “envelope stretching” that is not uncommon as new technology offers new methods of surveillance and monitoring.  The watchword for LEOs should be “when in doubt, get a warrant”.  And live by the document you’ve sworn to uphold and defend.

~McQ

Twitter: @McQandO

Observations: The QandO Podcast for 15 May 11

In this podcast, Bruce, Michael, and Dale discuss the Indiana Supreme Court’s Ruling on the 4th Amendment, and this week’s political stories.

The direct link to the podcast can be found here.

Observations

As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 to 2010, they can be accessed through the RSS Archive Feed.

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Stunning court decision in Indiana–Hoosiers have no right to resist illegal police entry into their home

No, you read it right.  That’s what the Indiana Supreme Court decided in what would be a laughable finding if it wasn’t so serious:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

The author of the story reporting this is right – somehow the ISC managed, in one fell swoop, to overturn almost 900 years of precedent, going back to the Magna Carta.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry. [emphasis mine]

Or said another way, your home is no longer your castle. 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Bzzzzzt.

Wrong – in Indiana

"We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

What part of “unlawful” doesn’t Justice David understand?  What part of the right of the people to “be secure… shall not be violated” wasn’t taught to him in law school.

How secure is anyone in their “persons, houses, papers and effects” if, per David, a police officer can waltz in any home he wants to “for any reason or no reason at all?”

The given reason by the so-called Justice is resistance is “against public policy?”  What freakin’ policy is that?  I , for whatever reason, thought our public policy as regards our homes was set by the 4th amendment to the Constitution.  Since when does Indiana’s “public policy” abrogate the Constitutional right to be “secure in our persons, houses, papers and effects”?

And, from where I sit, it is the job of the police not to “escalate the level of violence”, not the homeowner.  You know, like maybe a polite knock on a door to attempt arrest instead of a battering ram and the violent entry of a full SWAT team to arrest a jaywalker.  Maybe a little pre-raid intelligence gathering, or snagging the alleged perp when he leaves the house to go to work, or walk the dog, or go to the store.

I swear, this sort of thing lights a fast fuse in me.

Now we’re to give up our rights because it might “elevate the violence” if we attempt to protect ourselves from unlawful activity.   And check out this pinhead’s “analysis”:

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court’s decision is consistent with the idea of preventing violence.

"It’s not surprising that they would say there’s no right to beat the hell out of the officer," Bodensteiner said. "(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer."

So we’ll just throw out your 4th amendment right to satisfy the court’s desire to “prevent violence?”

Screw you Justice David (and the other two Justices) and the horse you rode in on. 

I hope your decision is destroyed on appeal and if you’re in an elected office you become very “insecure” in your probability of staying there.

The two dissenting Justices got it mostly right:

Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court’s decision runs afoul of the Fourth Amendment of the U.S. Constitution.

"In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally — that is, without the necessity of a warrant, consent or exigent circumstances," Rucker said. "I disagree."

Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.

But Dickson said, "The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad."

I say mostly right because they indicated that in the case of domestic violence, they too were willing to throw the 4th amendment under the bus. 

How in the freakin’ hell can you say “it runs afoul of the Fourth Amendment” and then agree to a partial abrogation of the 4th under certain circumstances?

Oh, and just to point out that this likely isn’t an outlier for this crew:

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge’s permission to enter without knocking.

Because, you know, it would be just asking too much to have to have the police actually justify a no-knock entrance to a judge, wouldn’t it?

Amazing.

And you wonder why you have to protect your rights daily from attacks within?

~McQ

Twitter: @McQandO

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Cell Phone Records: “No Reasonable Expectation Of Privacy”

Is there an “expectation of privacy” pertaining to your cell phone’s records?  Or any records held by a third party provider?

The Obama administration is arguing that there isn’t:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

In other words, since the provider keeps the records (not you) as mandated by law, those records belong to them and thus should be open to government inspection without permission from you or a court.

Now, there’s an argument to be made in terms of law enforcement needs. For instance, a series of bank robberies took place over a wide area. Combing the records for cell towers in the area of each robbery allowed law enforcement to narrow it down to two cell phone users who made calls in each area just before the robberies. Good police work. But shouldn’t they have to go before a judge and justify their desire to look at these records? I’m not sure they didn’t, but essentially the Justice Department is trying to argue that such a justification and court order should be unnecessary.

Ironic from an administration that was so strident about opposing warrantless wiretaps.

The question is, should those records be considered private? Jim Harper argues at Cato that those records are the modern equivalent of “papers and effects” protected by the 4th Amendment and that the court has misinterpreted that since 1967.

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

I agree with Harper.  Technology has changed how those records are kept, but they are still private records between the provider and the subscriber – especially since, for the most part, much of the data recorded is gathered without our permission. What I see in the case by the Obama administration is another attempt at government data mining – domestic intelligence – something which Democrats and libertarians were adamantly against when various schemes were uncovered during the Bush administration.

This attempt is subtly different. Instead of just assuming that there is no expectation of privacy and going ahead and demanding the information, the administration is attempting to have the court okay it first. But the result will be the same – unimpeded access by government to your location at any time (as long as you have a cell phone). It is but a short step from there to do what Harper outlines: data mining from various other providers based on the same argument and with this case as precedence. Result: a profile of you containing private data about your movements, spending habits, places visited on the internet, etc that are really none of the government’s business.

Of course, we all know that Big Brother government would never misuse or abuse this information, don’t we?

As Harper concludes, this is an imporant case which needs to be watched closely:

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.

~McQ

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