Jun 20 2013

Proposed wiretapping bill would grant police broad snooping powers

Dr. Q

Martha Coakley

Martha Coakley

While a recent survey shows that many Bay Staters do not support the NSA’s massive surveillance programs, Attorney General Martha Coakley has proposed a bill that would amend the state’s wiretapping statute to allow police in Massachusetts to conduct surveillance using basically the same methods as the NSA.

Alex Marthews of Digital Forth writes that the bill — which is called the “An Act Updating The Wire Interception Law” — would do the following:

1) Remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally. Potentially, even minor crimes like marijuana possession could become eligible for wiretapping by state authorities.

2) Double the length of an authorized wiretap, from 15 to 30 days.

3) Legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.

According to Brad Puffer, a spokesman for Coakley, Marthews’ summary of the bill “includes inaccuracies that are highly misleading about the changes our office has proposed.”

Puffer insists that the bill “does not legalize mass interception of telecommunication switching stations. Each wiretap must be applied for and authorized individually by a Superior Court judge.”

Furthermore, according to Puffer, “Marijuana possession is not eligible for a wiretap. Only serious designated felonies in the statute would be covered. According to federal law, only crimes with a minimum one year prison sentence are eligible for a wiretap.”

Marthews shows that both of these claims are false.

With respect to the mass interception of communications at telecommunications switching stations, Marthews observes the following:

Undoubtedly, each wiretap must be applied for and authorized individually. However, the bill seems to envision interception of communications on a mass basis, at phone company switching stations. An appropriate analogy here is with the recently disclosed FISC order to Verizon to disclose metadata on all calls to the NSA. It was one wiretap, “applied for and authorized” by a federal judge, but it covered every Verizon user’s calls.

Why does the bill contain language specifically revising the definition of a “wire communication” eligible for a wiretap order to include a “connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities”, if not to allow specifically this kind of interception? To say, Oh, it’s not mass interception because there would only be one wiretap order, in the light of recent revelations, is deeply misleading. We’d like to see a guarantee that a single wiretap order would not be used to collect data relating to multiple people’s communications passing through a switching station.

With respect to claims that the bill would allow police to wiretap people suspected of marijuana possession, Marthews quotes a reader who points out the following:

As I read the bill, it does make possession of marijuana eligible for a wiretap. Section 4 expands the definition of “designated offenses” to “any violation of chapter 94C”. It does not require that they even be a crime. So as long as marijuana possession violates 94C, even as a technical violation, wiretapping is allowed. Federal restrictions on wiretaps are irrelevant because marijuana possession is still a felony under federal law.

So, does marijuana possession violate 94C? Yes. Even under the decriminalization statute, section 32L of 94C, possessing an ounce or less of marijuana is a civil offense. Thus, still a violation of 94C. And possession larger amounts is still a criminal violation of 94C.

Furthermore, as Marthews points out, “it’s common for prosecutors to attempt to charge marijuana possession as possession with intent to distribute, which is a charge that would be covered even if what Mr. Puffer says is true.”

The bill is scheduled to have a hearing before the Judiciary Committee of the Massachusetts legislature on July 9.

Digital Fourth, the ACLU of Massachusetts, Demand Progress, Fight for the Future, the Bill of Rights Defense Committee and the Electronic Frontier Foundation have launched a petition to oppose the bill which can be signed here.

What stands out most about this is that even as the government in Massachusetts seeks to expand its surveillance powers, it’s still possible in this state to be prosecuted — under the same wiretapping statute that Coakley is trying to expand — for recording one’s interactions with the police. The recent ruling in Glik v. Cunniffe confirmed that people have the right to openly record the police, but secretly recording the police is still considered unlawful.

In the case Commonwealth v. Hyde, a musician’s felony wiretapping conviction was upheld by the Massachusetts Supreme Judicial Court after he recorded police during a traffic stop with a hidden tape recorder and brought the tape to police headquarters to file a complaint.

“The problem here could have been avoided if, at the outset of the traffic stop, [Hyde] had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight,” wrote the court. “Had he done so, his recording would not have been secret, and so would not have violated” the wiretapping statute.

Justice Margaret Marshall was not convinced by the majority’s logic. In her dissent, she expressed concern that the court’s ruling would “allow police officers to conceal possible misconduct behind a cloak of privacy.”

During the past few years, there have been at least three cases quite similar to Hyde which have been reported on by media.

In 2011, Robert Mansfield was arrested and charged with wiretapping by Whitman police after he went to the police station with a recording of a traffic stop to ask for a citation to be dropped.

That same year, Chelsea Orr, the daughter-in-law of former Bruins player Bobby Orr, was charged with felony wiretapping for recording her conversations with Cohasset police officers after she was allegedly involved in an OUI-related accident.

In 2012, Irving Espinosa-Rodrigue was stopped by Shrewsbury police for allegedly speeding (he denied the accusation). After a video of the traffic stop — which reportedly showed Espinosa-Rodrigue instructing a female passenger to record the stop — was uploaded to YouTube, police raided charged Espinosa-Rodrigue with wiretapping.

I haven’t been able to find follow-up reports about any of these cases, so I’m not sure if or how they’ve been resolved. However, the Hyde decision makes it clear that people can be convicted of wiretapping in Massachusetts simply for recording their own interactions with the police if a prosecutor can convince a judge and jury that the recording was “secret.”

I hope it’s obvious why this is a problem. If a police officer is willing to commit a crime or engage in some other form of misconduct, what’s to stop the officer from trying to cover up evidence? A recent incident in which California deputies have been accused of seizing phones from witnesses who recorded them beating a man to death shows how important it can be to record the police without their knowledge.

It’s quite infuriating to see government officials push to increase their surveillance of the public even as they use try to stop the public from gathering and disseminating information about the government.

The state’s wiretapping statute need is certainly in need of reform, but not the kind of reforms Martha Coakley envisions.

Jun 8 2013

Excellent news: Massachusetts’ highest court upholds probable cause, judicial oversight standard for extended GPS tracking

Dr. Q

By Kade Crockford, Director of the ACLU of Massachusetts Technology for Liberty Project

This article was originally posted at the Privacy Matters blog on June 7, 2013. It has been reprinted with permission.

It’s been quite a week, what with the Guardian newspaper’s Glenn Greenwald publishing a leaked NSA surveillance order to Verizon, and then last night’s revelations about how the military has directly tapped in to the servers of major internet companies like Google, Apple, Microsoft and Facebook. What began as a major controversy about phone and internet records has exploded into the biggest surveillance story of a decade, littered with scores of privacy-bombshells.

Particularly in light of these disclosures, the Massachusetts Supreme Judicial Court Commonwealth v. Rousseau decision, released this week, deserves wide discussion.

Quite simply, Rousseau cuts to the heart of the question raised by the NSA surveillance scandal: does the government need to have any individualized suspicion to extensively spy on us, or have we done away with that most basic tenet of our constitutional protections against unreasonable government searches?

Thankfully, the court answered the right way.

In short, the state’s highest court ruled that the government must have probable cause and provide judicial oversight before tracking us for extended periods of time using GPS devices. If it were up to the Massachusetts SJC, the NSA would be barred from doing lots of what we have just confirmed it has been doing for years.

Rousseau stems from the 2007 convictions of two Massachusetts men, John Rousseau and Michael Dreslinski, on counts of arson and other crimes. State police officers had used information gleaned from a GPS tracking device placed on Dreslinski’s car as evidence that helped convict both men.

Both men appealed the convictions, arguing, the court writes, “that the warrant which authorized the State police to attach the GPS device to Dreslinski’s car for 31 days was not supported by probable cause and therefore violated the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.”

In response, the government argued Rousseau had no right to challenge the constitutionality of the GPS tracking that helped convict him, because he was neither the driver nor the owner of the car the police were tracking.

That doesn’t make sense. Thankfully, the SJC doesn’t think so, either:

Rousseau, as a passenger in the vehicle, also has standing because he had a reasonable expectation that his movements would not be subjected to extended electronic surveillance by the government through use of GPS monitoring.

That’s great news. But it gets even better.

Furthermore, the court ruled, “under art. 14, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause.” (Article 14 is essentially the Massachusetts version of the Fourth Amendment; you can read it here.)

Remember three key phrases from that sentence: “extended GPS surveillance,” “judicial oversight,” and “probable cause.” The court ruled that, under the Massachusetts Declaration of Rights, if the government wants to watch our movements for an extended period of time (which at the very least is 31 days), then it needs to go to a Judge and prove that it is has probable cause to do so.

As ACLU of Massachusetts’ Legal Director, Matthew Segal, who co-wrote an amicus brief in Rousseau, says:

Today’s ruling by the Supreme Judicial Court is a huge victory for anyone who does not want the government to track their movements. Relying on the Massachusetts Declaration of Rights, the court held that the police generally cannot track someone using GPS surveillance unless they secure “judicial oversight” and make “a showing of probable cause.” Although the case itself concerned a passenger in a truck he did not own, the SJC’s ruling was not at all limited to that circumstance. Instead, the SJC made clear that its ruling applies to essentially everyone in Massachusetts.

Not only does the ruling apply to everyone in Massachusetts. The requirement to obtain “judicial oversight” and a “showing of probable cause” before the government can use GPS surveillance to track us for an extended period of time arguably extends well beyond the placement of a GPS tracking device onto a vehicle.

As an ACLU study showed, law enforcement nationwide regularly subpoena detailed information about our travel patterns from our cell phone companies. Our cell phones, too, use GPS to track us. As the ACLU writes, “While virtually all of the roughly 250 police departments that responded to our request said they track cell phones, only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so.”

And that location tracking, sometimes using precise GPS coordinates communicated by our cell phones, is extensive – even apart from the automated-datamart vacuum operations at NSA we are discussing this week. The ACLU reports: “According to the U.S. Department of Justice, Sprint keeps location tracking records for 18-24 months, and AT&T holds onto them “since July 2008,” suggesting they are stored indefinitely.”

Two years and indefinitely are certainly longer than the 31 days the Massachusetts Supreme Judicial Court found was “extended” in the Rousseau case.

But that’s not all.

Automatic license plate readers are increasingly compiling detailed records of everywhere motorists drive. Law enforcement at every level and even private corporations are hoarding this information in regional and even national databases. As the plate readers become cheaper and eventually ubiquitous, hanging from every intersection and attached to every police car, it’s a very real possibility that police will be able to track our every motoring move, going back months, years or even decades. In such cases, officers don’t even need to subpoena anyone for records, because they already have them.

That’s also the case with cell phone sniffing gear like the Stingray, which allows law enforcement to independently track our devices, cutting out the telecoms entirely.

As Supreme Court Justice Sonia Sotomayor wrote in a concurring opinion in the landmark Fourth Amendment case US v Jones,

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”

Sotomayor’s concerns pertain equally to location tracking by way of mobile phone, physical GPS device, and stored automatic license plate reader data.

Citing Jones, the Rousseau decision in Massachusetts makes clear that law enforcement in this state cannot use GPS to track us for an “extended” period of time unless they show probable cause to a judge. That ruling applies to GPS tracking in cell phones. It arguably also applies to detailed license plate reader databases, some of which already contain hundreds of millions of records showing where we drive, and when. These databases are only set to grow, and the vast majority of states have set no limits on how long police departments are allowed to store our location information.

Right now you may be thinking: ‘Who cares about whether or not the SJC said the cops need probable cause to spy on me like this? The NSA is already doing it!’ This is obviously a serious concern and we need to stop it. But the Rousseau decision still matters for people in Massachusetts, in a very big way.

That’s because, even if the Boston or Massachusetts State Police got access to NSA records showing where you went or for how long, they most likely wouldn’t be able to use that evidence against you in a Massachusetts court. Furthermore, the NSA probably isn’t in the business of sharing its preciously hoarded information with state and local police officers, except in highly extraordinary circumstances.

Even more importantly, many of us live in communities wherein we know people who work at the local prosecutors’ office, or are police officers. Local law enforcement is much more integrated into our lives than is the secretive, shadowy NSA. Therefore suspicionless, unaccountable surveillance at the local level poses unique threats to the sanctity of our lives, our dignity as private persons, and even our physical safety.

At the federal level, we need to repeal the FISA Amendments Act so that the military cannot routinely collect and store our private communications, associations and habits. But state law is incredibly important, as well.

That’s why we here in Massachusetts are working to pass legislation to deal with both warrantless cell phone tracking and unregulated license plate tracking, which we hope will become law sooner rather than later. (Join us and add your voice.)

Legislatures have a way of moving very slowly, however, and so in the meantime it’s heartening to see that our state’s highest court agrees on a basic principle, the violation of which underlies the entire NSA and PRISM scandal: if the police want to track our movements over an “extended” period of time, they need to have individualized suspicion and probable cause, and show that evidence to a judge.

It sounds almost quaint this week, but that’s how we do in Massachusetts.

Jun 2 2013

Videos from the International Day of Privacy protest

Dr. Q
BRIC (Photo by KT)

BRIC (Photo by KT)

Yesterday, a group of activists held a small “International Day of Privacy” protest outside the Boston Regional Intelligence Center (BRIC), the state’s “fusion center” in Boston. If you’re not familiar with the BRIC, I recommend checking out Chris Faraone’s recent piece in Dig Boston which offers some background.

The protest was organized by KT (the first speaker in the first video below), the same person who uploaded the videos of herself being harassed by court employees and police while protesting in Salem. Luckily, there was no police harassment at this protest. KT told me (via Twitter) that the police “stayed in their nice climate controlled fusion center.”

One of the attendees uploaded some videos of other protesters giving speeches. I’ve embedded them below so you know check them out:

May 24 2013

Massachusetts License Plate Privacy Act Hopes to Keep Police Abuses At Bay

Dr. Q

By Russell Matson

Note: This article is a guest submission. If you’d like to submit a piece of writing to be featured on the site, please use the Contact page or send a message via Facebook or Twitter.

License plate readerHow much power should police have to look up your driving habits and the places you frequent? That’s the question at issue as the state considers limitations on new technology already being widely deployed by police.

The dangers of law enforcement omnipotence and the privacy concerns of a surveillance state have been well documented in light of an increasing and disturbing trend nationwide: license plate readers. Boston-area police have joined the trend, incorporating a number of license plate readers throughout the area enabling police to track motorists, with or without any suspicion of criminal activity.

The tracking powers are almost universal. The way it works is, anywhere your vehicle goes, if it happens to cross one of these readers, it will be photographed and stored into an information system that includes the plate, the location and the time. These readers can be anywhere: the supermarket, your church, your kid’s tennis classes, or community meetings.

The purported primary purpose of these devices is to quickly identify stolen vehicles, or drivers wanted by law enforcement for offenses such as driving on a suspended license, or open warrants for failure to appear in court. Still, all the data, the “misses” as well as the “hits” are constantly being logged.

Once in the system, officials, equipped only with a license plate number, can enter that number into a database that retroactively creates a map of where you’ve been, when you’ve been there, and who else has been there with you.

What’s worse, the emergence of plate reading technology means that law enforcement agencies won’t be the only ones with access to your whereabouts. Private corporations, who have been notorious for using private information on consumers to narrowly tailor their marketing, will line up in droves to get their hands on reader technology. Without legislation in place to prevent this information from getting into the wrong hands, the privacy of Massachusetts citizens and Americans nationwide will continue to dwindle.

Fortunately, such legislation may be on the horizon. The Mass legislature is hearing The License Plate Privacy Act. The bill would set strict parameters around which law enforcement may use any information obtained from license plate readers. Essentially, it would require that any information obtained for reasons other than to track violations should be discarded. A court order would be required for officials to hold onto any such license plate information for more than a few day period.

The bill has already garnered some prominent supporters. The ACLU of Massachusetts has endorsed the bill, with Technology for Liberty Project director Kade Crockford calling the measures “checks and balances” against abusive use of technology. Civil libertarians across the state have praised the bill as not only limiting potentially insidious use, but also of setting precisely the type of guidelines that can make plate readers actually useful to law enforcement, by promoting public safety and lawful upkeep of vehicles.

The implications of the bill would reach even further. As it stands, the Massachusetts Executive Office of Public Safety and Security has indicated that a statewide database is the end destination of data obtained from license plate readers. Other states have similar databases, and that the aggregated data funnels through to central information on a national level. That means your movements, in and out of the state, are part of an integrated information tracking system that passes in front of many sets of eyes. Some ALPR devices are even provided to local police departments via grants from the Department of Homeland Security on the condition that they share all their data with national law enforcement.

The bill, if passed, looks to essentially dump any information that is not immediately used to spot infractions. Does that mean snapshots of license plates obtained through routine tracking wouldn’t make their way into nationwide information aggregates? That’s a question for another day. For now, advocates of privacy can agree on one thing: passing the License Plate Privacy Act would be a definite step forward.

Russell Matson is a criminal defense attorney in Massachusetts. His website is http://www.madrunkdrivingdefense.com

May 20 2013

Massachusetts police to acquire more drug and bomb sniffing dogs

Dr. Q

Throughout the United States, police use so-called “detection dogs” to sniff out illegal drugs and explosives. In the case of Illinois v. Caballes, the Supreme Court ruled that the use of these dogs by police does not constitute a search for legal purposes. What this means is that police can have one of their dogs sniff you or your vehicle without first obtaining a warrant. Courts also typically treat a “signal” from a police dog as probable cause to conduct a search. This means that police can walk up to you in public or, if you are driving, stop you for a minor traffic violation (e.g., speeding), have a dog sniff you and your car, and, if the dog “signals,” they can conduct a thorough search of you, your car, and your personal belongings.

Yesterday, The MetroWest Daily News published a story by Jessica Trufant about how, in the wake of the Boston Marathon bombings, many police departments in the region are expressing interest in acquiring police dogs (Jessica Trufant, “Police dogs in big demand in MetroWest forces,” The MetroWest Daily News, May 19, 2013). As is common in the mainstream press, this shoddy article uncritically presents misleading and outright false claims by government officials as fact.

The article is based almost entirely on the author’s interviews with Ken Ballinger, assistant deputy superintendent of the Plymouth County Sheriff’s Department and leader of its K9 unit, and Dwane Foisy, president of the Massachusetts Police Work Dog Association, both of whom stress the importance and legitimacy of police dogs and assure us that these dogs are well-trained:

Many of [Ken Ballinger’s] trainees, including Ashland Officer Chris Alberini and his German shepherd partner Dax, helped in the manhunt following the Boston bombings on April 15, which again has heightened awareness of the value and effectiveness of dogs in assisting officers both during and after such crises.

A second-generation K9 handler, Ballinger 20 years ago never imagined that dogs in 2013 would be sniffing out contraband cell phones in prisons, or wearing cameras to stake out buildings before raids.

But Ballinger has seen a drastic increase in the use of dogs and the sophistication of training, as case law and public opinion have shifted to treat K9s as legitimate police tools.

He expects a greater presence of K9s before and during large public events, despite some pushback from privacy rights advocates who may consider the use of dogs unlawful searching.

“Standards for privacy are high in Massachusetts, but the standard of reasonableness reflects the world we live in now,” Ballinger said. “A dog walking around and sniffing you is a lot less intrusive than a cop grabbing you and shaking you like a leaf.”

“There’s nothing in modern technology that will be more accurate or sensitive than a dog’s nose,” Ballinger said.

There is no state oversight or registry for the approximately 300 police dogs in the state, but [Dwane] Foisy said training and annual certification through a reputable organization or police or sheriff’s department is essential to the integrity of K9 units.

“When you go into court, you need to have the paperwork and justification for how you know what your dog is telling you is correct, and that’s through training and maintenance,” he said.

The dogs are trained in just one area of detection, such as narcotics, explosives or cadavers, which Foisy said legitimizes the dog’s expertise and minimizes risk.

The concept behind the training is the same as when Ivan Pavlov in 1903 studied conditioned response in salivating dogs – repetition, non-verbal communication and food.

Ballinger said detection is “all based on a chain of events for the dog,” which is conditioned to know what to do based on the handler’s actions.

Dax, for example, knows to sniff for narcotics when his handler, Alberini, puts a certain collar on him.

Training begins with imprintation – when the dog spends several weeks learning a set of smells, such as the most common drugs or explosives in the area it serves.

Chelsea K9 officers Tom McLain and Ed Noftle said their explosive-detecting shepherds are now trained on up to 42 odors, including TNT, C4 and smokeless powder, while they started off with less than a dozen.

The dog and handler then focus on high-volume repetitive behavior, taught by Plymouth County’s K9 unit using food and real explosives or narcotics of varying purity and quantity.

By going through a chain of commands over and over again, the dog is trained to associate each command with what it needs to do to get the reward.

The only time a food-trained dog, like Dax, eats is when it successfully carries out a task, linking its ability to complete a duty with satisfying its hunger.

“We used to train with toys, but not every dog needs to play. Every dog needs to eat, though,” Ballinger said, adding that the dog remembers what it did wrong “if it’s going to sleep hungry.”

Trufant apparently did not bother to ask these police officers any tough questions. She reiterated Ballinger’s claims that police dogs “helped in the manhunt following the Boston bombings,” but how did they help? They didn’t prevent the bombings from happening nor did they locate the perpetrators, so what exactly did they do? How do the police she interviewed know how accurate their dogs are? Do they track how often their dogs give them false positives? Do they retire a dog if it gives too many false positives? Trufant didn’t bother asking these or any other questions that might cast doubt on the use of police dogs.

We do learn that there is “some pushback from privacy rights advocates who may consider the use of dogs unlawful searching,” however, Trufant did not actually interview any of these privacy advocates nor did she look into any empirical research on the efficacy of police dogs.

Had she looked into research on police dogs instead of mindlessly regurgitating the claims of several police officers all of whom have a direct interest in perpetuating the idea that these dogs serve a legitimate purpose, she would have found that police dogs have incredibly low success rates (they give false positives more often than not) and that it’s incredibly easy to manipulate a police dog into “signalling” its handler.

This really shouldn’t be surprising to anyone. When a police dog “signals” its handler, all its does is sit down or bark. Dogs are not people. They can’t say “I smell marijuana in that guy’s car” or “that guy has a bomb.” Dogs sit down and bark all the time, for all kinds of reasons, so these so-called “signals” are, by their nature, completely ambiguous.

When a police dog “signals” its handler, it may be doing so because it actually smells drugs or explosives. But it may smell food. Or maybe it’s just excited. A police dog also might “signal” its handler because it knows that doing so makes its handler become happy or excited. After all, dogs have been bred over thousands of years to please their human masters. In fact, I wouldn’t be surprised if I were to find out that many police officers take advantage of this fact and intentionally cue their dogs to “signal” them whenever they happen to feel like searching someone. It’s not hard for someone to get a dog they’ve spent a lot of time with to sit down or bark, so we can’t really rule this possibility out.

Unless we develop mind-reading devices for dogs, we will never be able to say for certain what a police dog is thinking when it “signals” its handler. Therefore, searching someone based on the “signal” of a dog is completely arbitrary.

Although this one-sided article doesn’t address any of the concerns about police dogs, it actually does spell out the real reason that police want these dogs:

With more than 20 years as a K9 officer, Foisy, who works for the Berkshire County Sheriff’s Department, said he saw an upswing in bomb-detecting police dogs after 9/11, but then the demand dropped off. He said bomb dogs might not be realistic for small departments, because calls for suspicious packages peak after an attack, but then trail off.

“When you have a narcotics dog, they’re making seizures of narcotics and money, and there’s a return on the investment,” Foisy said. “With explosives dogs, you may not get calls for service very often.”

Isn’t the honesty refreshing? Police do not want these dogs to keep people safe, they want police dogs because they can be used as a pretext for seizing money from people involved in the drug trade. This loot can then be used by the police departments to pad their budgets.

The people of Massachusetts have shown that they are fed up with the government’s war of drugs. Voters have passed two ballot initiatives in recent years, one decriminalizing small amounts of marijuana and another legalizing marijuana for some medical uses, and the state’s drug testing lab scandal has undoubtedly left many people cynical. Even if the majority of the public isn’t completely against the drug war yet, public opinion is shifting and more people want limits put on this massive, inhumane, and wasteful social engineering program.

Unfortunately, police seem to be lagging behind public opinion.

There are literally millions of violent crimes and property crimes in the United States that go unsolved every year. The FBI’s Uniform Crime Reporting statistics for 2011 show that in Massachusetts, 28,219 violent crimes (these include murder, nonnegligent manslaughter, forcible rape, robbery, and aggravated assault) were reported to the police, but police only arrested suspects in 11,512 cases (or 40.8%). 148,790 property crimes (burglary, larceny-theft, motor vehicle theft, and arson) were reported to the police, but police only arrested suspects in 18,428 cases (or 12.4%).

If police took all of the limited resources they currently use aggressively seeking out victimless offenders and instead put them to use trying to solve violent and property crimes, we’d probably be a lot safer.

But, as I explained, it’s not really about safety.

Sep 13 2011

Little Brothers Are Watching: The Example of Massachusetts

Dr. Q

By Nancy Murray and Kade Crockford, Truthout and ACLU Massachusetts

This article was written as part of the Ten Years Later: Surveillance in the ‘Homeland’ project by Truthout and the American Civil Liberties Union of Massachusetts which the two organization describe as “a series of critical analyses and investigative pieces related to privacy, homeland security and surveillance” written for the 10 years since the 9/11 terrorist attacks. It was copied from this source.

Early in the morning on March 13, 2008, Australian-born Peter Watchorn, one of the world’s foremost harpsichordists, was standing on a subway platform in Cambridge, Massachusetts, with a professional cellist from Australia who had his instrument with him. They were on their way to Logan International Airport to catch a plane.

After going a few stops, all the trains in the Massachusetts Bay Transportation Authority (MBTA) subway system were brought to a halt while theirs was searched with sniffer dogs. They thought they still could make their plane when their train started up again and they made it to the connecting bus. But before they reached their terminal, they were hauled off the bus and subjected to an abusive search – by no fewer than eight officers – during which the cello, valued at $250,000, was nearly tipped out of the case.

After they were interrogated for 30 more minutes, one state trooper told them they had been overheard at the Cambridge station, “having conversations we were not supposed to be having.” They missed their plane and never got any kind of apology from the police. The incident left Watchorn wondering whether he had done the right thing becoming an American citizen.

On the basis of an anonymous tip – possibly a hoax, or maybe just an overreaction from a well-intentioned “if you see something, say something” citizen spy – the MBTA police decided that these travelers posed a “credible threat.” The MBTA had been preparing for years to disrupt such threats by creating a robust intelligence unit that partners with the fusion center, the Joint Terrorism Task Force (JTTF), numerous other state and federal agencies including Immigration and Customs Enforcement (ICE), the Drug Enforcement Administration (DEA), and the Metropolitical Transportation Authority (MTA) Interagency Counterterrorism Task Force in New York City. By 2005, the unit was maintaining 14 stand-alone databases to track all suspicious activity and crime, information which was forwarded directly to the JTTF. It had a weekly bulletin, “Reporting on Terrorism-Related Activity,” that was disseminated across the nation, and it was working with Raytheon and Draper Labs to develop special software to track people, since the facial recognition software available at that time was not effective in the subways.[1]

The MBTA had also introduced a “Security Inspection Program” to search passengers on a random basis at the time of the 2004 Democratic National Convention and made it permanent in October 2006. Even as the subway infrastructure deteriorated and the MBTA ran out of funds to pay injury and damage claims, groups of four or five transit officers were paid to “deter terrorists” by inspecting the bags of randomly selected passengers at various stations on a rotating basis – activity that security expert Bruce Schneier calls “security theater.” The MBTA also announced the deployment of “behavior recognition teams” with the authority to stop anyone anywhere for unspecified reasons.

The airport to which the musicians were heading piloted such teams shortly after two of the planes involved in the 9/11 attacks took off from its runways. The American Civil Liberties Union (ACLU) challenged the precursor of the Screening of Passengers by Observation Techniques program (SPOT) when the head of its national Campaign against Racial Profiling – a tall African-American man with a beard – was spotted behaving “suspiciously” by talking on a pay phone after deboarding an airplane. A jury agreed that he had been wrongly detained.

Evidence that “behavioral profiling” is just another term for racial profiling did not prevent SPOT from being rolled out at other airports, at a cost of some $400 million. In a 2010 report, the Government Accountability Office (GAO) claimed the program had no scientific validity and caught no terrorists, despite the fact that some 16 individuals alleged to be involved in terrorist plots (including the would-be Times Square bomber, Faisal Shahzad) moved through airports deploying SPOT on at least 23 occasions.[2]

Nevertheless, an additional $1 billion was designated for the next version of SPOT, which was unveiled at Logan beginning in August 2011. It involves the Israeli-style screening of passengers who are asked questions to see if they seem unduly nervous or display evidence of Orwell’s “facecrime.”[3] The $14 billion spent by the Transportation Security Administration (TSA) on airport security has been handed over to dozens of contractors, with little attention paid to what actually works, and even less to notions of privacy and the Fourth Amendment’s ban on unreasonable searches – especially in the case of “backscatter” whole-body screening, which is bringing a hefty commission to the company headed by former Department of Homeland Security (DHS) chief Michael Chertoff.

What are the chances that Watchorn and his fellow musician now have a permanent record of being regarded as “credible threats”? Given what the ACLU of Massachusetts has been able to discover through its multiple public records requests, it seems quite likely. For Massachusetts, which has received at least $170 million from the DHS for surveillance-related programs, has been at the forefront of efforts to build the new, data-hungry intelligence apparatus, thanks to the efforts of its governor from 2003 to 2007, Mitt Romney.

As lead governor on homeland security issues at the National Governors Association and a member of the DHS Homeland Security Advisory Council, Romney was ardent about enlisting the public “to be on the lookout for information which may be useful” and expanding government surveillance: “Are we wiretapping, are we following what’s going on, are we seeing who’s coming in, who’s coming out, are we eavesdropping, carrying out surveillance on those individuals that are coming from places that have sponsored domestic terror?”[4]

So, it is not surprising that Massachusetts had two of the earliest fusion centers in the country. The Commonwealth Fusion Center (CFC) was established under the supervision of the state police in 2004 without any public notice or legislative process. The Boston Regional Intelligence Center (BRIC) was set up the following year, also under cover of official silence.

The CFC, which soon moved from a terrorism focus to an “all hazards, all threats, all crimes” mission, is staffed by members of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Massachusetts National Guard, the US Army Civil Support Team, the DEA, the Department of Correction, the DHS Office of Intelligence Analysis, the Geographic Information Systems Department and at least one private corporation, CSX Railroad. In addition, local police officers with security clearance work at the CFC.

Under the CFC standard operating procedures, police officers attached to the CFC behave more like FBI agents than local cops. They are permitted to conduct “preliminary inquiries,” during which “all lawful investigative techniques may be used” (including the use of undercover operatives or informants) without reasonable suspicion that a target is involved in criminal activity.[5] If they go undercover “to attend meetings that are open to the public for purpose of observing and documenting events,” they are not required to identify themselves or leave the gathering if it is requested that police officers make themselves known, and they don’t have to leave the room if legal advice is being given.

The CFC shares data with local police departments, with state police in other states, with various state agencies and through the national Information Sharing Environment (ISE) with federal and state agencies around the country. Its personnel have been granted clearance by the DHS and the FBI to access classified information.

BRIC is under the supervision of the Boston police and staffed by the MBTA transit police, employees from various local police departments, the Suffolk County Sheriff’s Office and various business interests. A pioneer of Suspicious Activity Reporting (SAR), the Boston Police Department, through BRIC, shares information with the CFC and the FBI, and has entered into information-sharing agreements with agencies as far away as Orange County, California via COPLINK, police information-sharing software designed to “generate leads” and “perform crime analysis.”

Massachusetts has developed other databases to aid information-sharing. Among them is “MassGangs,” which collects a vast range of personal and associational information on anyone and everyone who could be a member of a “gang” – defined as an “association or group of two [emphasis added] or more persons, whether formal or informal, whose members or associates engage, either individually or collectively, in criminal activity.”[6] There is also SWISS (the Statewide Information Sharing System), which enables multiple agencies to contribute police reports in real time to a state repository and then access and search reports remotely through a computer. The database creates a permanent record not only of arrests, but of all incidents based on “calls to service” – from fighting neighbors to a barking dog – as well as information about each time a police officer stops someone on the street and makes a search.[7]

As the CFC and BRIC steadily expand the number of public and private sources from which they collect information and the mountain of data grows ever larger, accessing agencies have less knowledge about the kind and quality of information that they retrieve. The CFC disclaims any responsibility for the accuracy of the data it collects and shares. Its privacy policy does more to shield its operations from public scrutiny than it does to protect individual privacy, and it creates no enforceable rights.[8] Without any independent oversight mechanism or public reporting, Massachusetts’ fusion centers have been left to police themselves, even though they have every incentive – as well as the stated intention – to sidestep laws they find inconvenient.

The public is not just being left in the dark about the operation of fusion centers.  It has little solid information about the network of DHS-funded surveillance cameras that has been installed in cities and towns of the Greater Boston Urban Area Security Initiative. These powerful cameras have the capacity to pan, tilt, and zoom, rotate 360 degrees in a fraction of a second, and “see” for a mile. They could eventually be fitted with facial recognition software, eye scans, radio frequency identification tags, and other forms of software, and connected to large law enforcement databases – if they are not already.

Like other states and cities, Massachusetts and Boston law enforcement officials have received federal funding for a broad range of other surveillance-related technologies. Some, at first glance, may seem like sensible policing tools. For instance, automatic license plate readers – provided to state and local police through a federal Department of Transportation grant – can help police spot stolen cars and parking violators.

But they also capture digital images of thousands of license plates per minute and store this information in databases, along with travel information indicating the time and place a particular vehicle was “pinged.” In Massachusetts, this information is required to be submitted to the state’s criminal justice information services database, which can be freely accessed by other states’ and federal law enforcement. Absent a formal policy on data retention and sharing – which the state does not have – the personal travel information of millions of Massachusetts residents can be shared with agencies throughout the nation.

Massachusetts police may soon have an even more powerful tool at their disposal –  if they do not already. Imagine a database containing billions of data entries on millions of people, including (but not limited to) their bank and telephone records, email correspondence, biometric data like face and iris scans, web habits and travel patterns. Imagine this information being packaged “to produce meaningful intelligence reports” and made accessible via a web browser from a handheld mobile or police cruiser laptop.

In 2003, the Massachusetts State Police put out a request for proposals to create just such an “Information Management System” (IMS). In May 2005, they awarded a $2.2 million contract to Raytheon to build, install, troubleshoot and maintain the IMS.[9] Welcome to policing in the age of total information awareness.

1. This information was presented by the MBTA at the Anti-Terrorism Advisory Council Meeting held on May 18, 2005, at the Moakley federal courthouse and attended by a wide array of federal (including military) and state agencies, local police, and private partners.

2. According to the GAO report, between May 2004 and 2008, 152,000 people were identified for secondary screening by SPOT teams. Of this number, 14,000 people were referred to law enforcement, resulting in 1,100 arrests – most for being “illegal aliens” or having “fraudulent documents.”

3. “It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself – anything that carried with it the suggestion of abnormality, of having something to hide. In any case, to wear an improper expression on your face (to look incredulous when a victory was announced, for example) was itself a punishable offense. There was even a word for it in Newspeak: facecrime, it was called.” (George Orwell, “1984”).

4. Governor Mitt Romney, speech to the Heritage Foundation, September 14, 2005.

5. Document obtained via a Freedom of Information Act (FOIA) request: Standard Operating Procedure, Commonwealth Fusion Center, Number CFC-04, effective date March 5, 2008.

6. Document obtained via a Freedom of Information Act (FOIA) request: MassGangs: Project Overview, Draft of December 14, 2007.

7. Meeting with Commonwealth Fusion Center officials, April 7, 2009.

8. Document obtained via a Freedom of Information Act (FOIA) request: CFC-05, July 1, 2006 (CFC Privacy Policy).

9. Document obtained via a Freedom of Information Act (FOIA) request: Massachusetts State Police Request for Information re: Data base software.

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Nancy Murray is director of education at ACLU Massachusetts. Kade Crockford is the ACLU Massachusetts privacy rights coordinator.