Dubya's Legacy

Bloggers Win Privacy Battle With Bronx DA

Room Eight, a blog about NYC politics co-founded by popular Politico.com columnist Ben Smith, has been quietly fighting a subpoena from Bronx District Attorney Robert Johnson's office. The subpoena demanded to know the identity of the Room Eight anonymous blogger "Republican Dissident" who had criticized Johnson's office.

The subpoena carried a warning in capital letters that disclosing its very existence “could impede the investigation being conducted and thereby interfere with law enforcement” — implying that if the bloggers blabbed, they could be prosecuted.

“We were totally perplexed,” said Ben Smith, who co-founded Room 8 with Gur Tsabar. (The site calls itself an “imaginary neighbor” to the press room — Room 9 — in City Hall in New York.) The two promptly began looking for a lawyer. “We knew enough to be scared.”

This, of course, is a blogger’s nightmare: enforced silence and the prospect of jail time. The district attorney eventually withdrew the subpoena and lifted the gag requirement after the bloggers threatened to sue. But the fact that the tactic was used at all raised alarm bells for some free speech advocates.

The demand for secrecy raised the unnerving prospect that prosecutors could quietly investigate anyone who posts comments online, while the person making those comments is unaware of and unable to respond to the risk. The tactic also robs bloggers of one of their most powerful weapons: the chance to spread the word and turn the legal attack into an online cause célèbre.

Ben Smith called the Bronx DA's office to ask why they wanted the information, but prosecutors refused to say. District Attorney Johnson claimed to have no knowledge of the subpoena, which also demanded the IP addresses of several anonymous commenters on Room Eight. After Smith engaged the pro-bono assistance of privacy advocacy lawyers, Johnson reviewed the subpoena and judged it "unnecessary."

Once the subpoena was withdrawn, Smith was free to discuss the situation and it has know blown up into quite the hot topic, with many bloggers calling on New York State Attorney General Andrew Cuomo to investigate Johnson's office.

As the Times notes, there are ways to shield your IP address, but this case certainly raises questions about how many other gag-order type subpoenas have been used by the government to find the identities of our anonymous "dissidents".

FISA: Bush Signs, ACLU Sues

Yesterday Dubya signed away another piece of democracy when he gleefully scratched his name in blood onto the FISA bill.

George W. Bush Thursday signed a law expanding legal authority for wiretaps by spy agencies which he hailed as vital for America's security, after a fierce Congress battle. "This law will play a critical role in helping to prevent another attack on our soil," Bush said as he signed the bill, calling it "vital to the security of our people."

"The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home," he said. The law includes retroactive immunity for telecommunications firms which aided warrantless government surveillance operations following the September 11 attacks in 2001, meeting a key White House demand.

The ACLU responded with an immediate lawsuit.

"Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged," said ACLU Executive Director Anthony D. Romero. "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights. The new wiretapping law fails to provide fundamental safeguards that the Constitution unambiguously requires."

In today's legal challenge, the ACLU argues that the new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing.

Senate Approves FISA, Warrantless Wiretapping To Become Law

Thanks to today's Senate vote to approve the Foreign Intelligence Surveillance Act, warrantless wiretapping, arguably the most intrusive violation of Americans' right to privacy, will become legal. Oh, and everybody who's already done it is now immunized against lawsuits. A list of how each Senator voted is here.

The Democratic-led Congress this afternoon voted to put an end to the NSA spying scandal, as the Senate approved a bill -- approved last week by the House -- to immunize lawbreaking telecoms, terminate all pending lawsuits against them, and vest whole new warrantless eavesdropping powers in the President. The vote in favor of the new FISA bill was 69-28. Barack Obama joined every Senate Republican (and every House Republican other than one) by voting in favor of it, while his now-vanquished primary rival, Sen. Hillary Clinton, voted against it. John McCain wasn't present for any of the votes, but shared Obama's support for the bill. The bill will now be sent to an extremely happy George Bush, who already announced that he enthusiastically supports it, and he will sign it into law very shortly.

Prior to final approval, the Senate, in the morning, rejected three separate amendments which would have improved the bill but which, the White House threatened, would have prompted a veto. With those amendments defeated, the Senate then passed the same bill passed last week by the House, which means it is that bill, in unchanged form, that will be signed into law -- just as the Bush administration demanded.

More from Salon's Glenn Greenwald:

Obama's vote in favor of cloture, in particular, cemented the complete betrayal of the commitment he made back in October when seeking the Democratic nomination. Back then, Obama's spokesman -- in response to demands for a clear statement of Obama's views on the spying controversy after he had previously given a vague and noncommittal statement -- issued this emphatic vow:

To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.

But the bill today does include retroactive immunity for telecommunications companies. Nonetheless, Obama voted for cloture on the bill -- the exact opposition of supporting a filibuster -- and then voted for the bill itself. A more complete abandonment of an unambiguous campaign promise is difficult of imagine.

The ACLU has come out swinging and vows to fight the bill:

Today, in a blatant assault upon civil liberties and the right to privacy, the Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance. The FISA Amendments Act of 2008 was approved by a vote of 69 to 28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times.

[snip]

“This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.”

NYCLU: Pot Arrests Up Tenfold

According to the New York Civil Liberties Union, arrests for the possession of small amounts of marijuana have increased tenfold in NYC over the last decade. Via Gothamist:

That isn't all, the reports are also showing that the NYPD are weeding out Blacks and Latinos, with more than half those arrested being black, and 31% being Hispanic.

A NYPD spokesperson said the system the NYCLU used to cull its numbers is flawed, but many are still taking note, especially since the NYPD itself is criticized for pressuring people into searches and stop-and-frisks (police commish Kelly denies using racial profiling). The NYPD spokesperson denies the report all-together, calling the NYCLU's numbers "absurdly inflated".

The NYPD claims there were only 8,770 marijuana violations during the years 1997 to 2006. But the NYCLU is standing firm by their report, saying that in those years "205,000 blacks, 122,000 Latinos and 59,000 whites for possessing small amounts of marijuana."

Tenfold? TENFOLD? I know violent crime has dropped a zillion percent or something, but are the cops really that fucking bored? And doesn't a stop-and-frisk policy violate the Fourth Amendment? You have to wonder how many of these busts are mere harassment and don't even go to trial.

Help Me, Obi Wan Pelosi

Feds To Announce $1B Biometric Tracking Program

The Minority Report is coming true.

The FBI is gearing up to create a massive computer database of people's physical characteristics, all part of an effort the bureau says to better identify criminals and terrorists.

The FBI wants to use eye scans, combined with other data, to help identify suspects. But it's an issue that raises major privacy concerns -- what one civil liberties expert says should concern all Americans.

The bureau is expected to announce in coming days the awarding of a $1 billion, 10-year contract to help create the database that will compile an array of biometric information -- from palm prints to eye scans.

Kimberly Del Greco, the FBI's Biometric Services section chief, said adding to the database is "important to protect the borders to keep the terrorists out, protect our citizens, our neighbors, our children so they can have good jobs, and have a safe country to live in."

But it's unnerving to privacy experts.

"It's the beginning of the surveillance society where you can be tracked anywhere, any time and all your movements, and eventually all your activities will be tracked and noted and correlated," said Barry Steinhardt, director of the American Civil Liberties Union's Technology and Liberty Project.

Fly Clear was just the beginning.

Giuliani II: Bloomberg Calls For DNA Testing For All Arrested In NYC

In his seventh annual State Of The City address today, Mayor Michael Bloomberg revealed his plan to ask Albany for the power to gather DNA from anybody arrested in New York City, innocent or guilty, for any crime, including simple misdemeanors such as participating in civil disobedience.

Why this? Why NOW? We already live in the safest (by FAR) large city in the United States. Obviously, Bloomberg is casting an eye towards his upcoming presidential candidacy. The mayor is well-known for his wonky habit of relying on studies and surveys. Did some heartland focus group steer him to this fubar plan? Two years ago Bloomberg lobbied Albany for the right to collect DNA from convicted felons and those convicted of certain sex-related misdemeanors. That seemed justified to me. But not THIS. Get ready for the civil liberties groups to completely lose their shit, Mayor.

As I've said here many times, with a couple of notable exceptions, I've been very impressed with Bloomberg thus far. If not for the obvious fear of his Naderizing the 2008 election, I'd even consider supporting him for president. Unlike others, Bloomberg supports gay marriage. He's strongly pro-choice, and generally (but not always) says and does the sort of things that make progressives happy. His personal philanthropy is legendary and his billions immunize him (probably) to the backroom deals of scumbag lobbyists, although many are rightfully concerned about his allegiances to big business. That concern aside, the man knows how to run the business of the country's biggest city and that's an invaluable skill to bring to the White House in this darkening economy.

Until today, for me the biggest downside to Bloomberg has been his relative silence on the Iraq war, other than to call Bush arrogant on the issue. Still, I've sort of given Bloomberg on pass on the war until he is actually a candidate. But this Orwellian DNA bullshit is a total dealbreaker. Even though I don't see Gov. Spitzer supporting this crapola for one minute, Bloomberg needs to pull back from this immediately.

Feds Drafting Warrantless Email Snooping Policy

From the New Yorker, via Raw Story:

National Intelligence Director Mike McConnell is drawing up plans for cyberspace spying that would make the current debate on warrantless wiretaps look like a "walk in the park," according to an interview published in the New Yorker's print edition today.

Debate on the Foreign Intelligence Surveillance Act “will be a walk in the park compared to this,” McConnell said. “this is going to be a goat rope on the Hill. My prediction is that we’re going to screw around with this until something horrendous happens.”

The article, which profiles the 65-year-old former admiral appointed by President George W. Bush in January 2007 to oversee all of America's intelligence agencies, was not published on the New Yorker's Web site.

McConnell is developing a Cyber-Security Policy, still in the draft stage, which will closely police Internet activity.

"Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the autority to examine the content of any e-mail, file transfer or Web search," author Lawrence Wright pens.

“Google has records that could help in a cyber-investigation, he said," Wright adds. "Giorgio warned me, 'We have a saying in this business: ‘Privacy and security are a zero-sum game.'"

Laptops. Phone calls. Emails. Google searches. What's left?

Courts To Consider Laptop Inspections

It appears that U.S. courts are about to reverse a 2006 ruling that customs officials cannot search the laptop computers of travelers without probably cause.

The government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer's hard drive, the government says, is no different from looking through a suitcase. One federal appeals court has agreed, and a second seems ready to follow suit.

There is one lonely voice on the other side. In 2006, Judge Dean Pregerson of U.S.District Court in Los Angeles suppressed the evidence against Arnold.

"Electronic storage devices function as an extension of our own memory," Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. "They are capable of storing our thoughts, ranging from the most whimsical to the most profound."

Computer hard drives, Pregerson continued, can include diaries, letters, medical information, financial records, trade secrets, attorney-client materials and information about reporters' "confidential sources and story leads."

But Pregerson's decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.

Is there anything on your laptop you wouldn't be happy to have played at JFK?

Bush Erodes 4th Amendment

Yesterday Dubya signed a law expanding the ability of the government to eavesdrop on our international phone conversations and emails without warrants. The law was enacted in order to protect the major telecommunication companies that are now facing numerous lawsuits for having secretly cooperated in previous warrantless wiretappings. These companies have been pressuring the Bush administration to enact legislation freeing them of their responsibility to protect the privacy of their customers - and they got it. Now they can be compelled to cooperate by the attorney general or the director of national intelligence. The 1978 Federal Intelligence Surveillance Act (FISA) previously controlled how the government could listen to private conversations. Under FISA, the government needed warrants. But thanks to 2001's Patriot Act and now this, not any more.