Forbes: Biden Administration Urges Supreme Court To Let Cops Enter Homes And Seize Guns Without A Warrant

From Forbes, Biden Administration Urges Supreme Court To Let Cops Enter Homes And Seize Guns Without A Warrant

The U.S. Supreme Court on Wednesday will hear oral argument in Caniglia v. Strom, a case that could have sweeping consequences for policing, due process, and mental health, with the Biden Administration and attorneys general from nine states urging the High Court to uphold warrantless gun confiscation. But what would ultimately become a major Fourth Amendment case began with an elderly couple’s spat over a coffee mug.

Capitol Breach — People view the Supreme Court building from behind security fencing on Capitol Hill in Washington, … [+] ASSOCIATED PRESS

In August 2015, 68-year-old Edward Caniglia joked to Kim, his wife of 22 years, that he didn’t use a certain coffee mug after his brother-in-law had used it because he “might catch a case of dishonesty.” That quip quickly spiraled into an hour-long argument. Growing exhausted from the bickering, Edward stormed into his bedroom, grabbed an unloaded handgun, and put it on the kitchen table in front of his wife. With a flair for the dramatic, he then asked: “Why don’t you just shoot me and get me out of my misery?”

Perhaps unsurprisingly, the tactic backfired and the two continued to argue. Eventually, Edward took a drive to cool off. But when he returned, their argument flared up once again. This time, Kim decided to leave the house and spend the night at a motel. The next day, Kim phoned home. No answer.

Worried, she called the police in Cranston, Rhode Island and asked them to perform a “well check” on her husband and to escort her home. When they arrived, officers spoke with Edward on the back deck. According to an incident report, he “seemed normal,” “was calm for the most part,” and even said “he would never commit suicide.”

However, none of the officers had asked Edward any questions about the factors relating to his risk of suicide, risk of violence, or prior misuse of firearms. (Edward had no criminal record and no history of violence or self-harm.) In fact, one of the officers later admitted he “did not consult any specific psychological or psychiatric criteria” or medical professionals for his decisions that day.

Still, police were convinced that Edward could hurt himself and insisted he head to a local hospital for a psychiatric evaluation. After refusing and insisting that his mental health wasn’t their business, Edward agreed only after police (falsely) promised they wouldn’t seize his guns while he was gone.

Compounding the dishonesty, police then told Kim that Edward had consented to the confiscation. Believing the seizures were approved by her husband, Kim led the officers to the two handguns the couple owned, which were promptly seized. Even though Edward was immediately discharged from the hospital, police only returned the firearms after he filed a civil rights lawsuit against them.

Critically, when police seized the guns, they didn’t claim it was an emergency or to prevent imminent danger. Instead, the officers argued their actions were a form of “community caretaking,” a narrow exception to the Fourth Amendment’s warrant requirement.

UNITED STATES – JANUARY 7: The U.S. Supreme Court is seen on Thursday, January 7, 2021. (Photo By … [+] CQ-Roll Call, Inc via Getty Images

First created by the Supreme Court nearly 50 years ago, the community caretaking exception was designed for cases involving impounded cars and highway safety, on the grounds that police are often called to car accidents to remove nuisances like inoperable vehicles on public roads.

Both a district and appellate court upheld the seizures as “reasonable” under the community caretaking exception. In deciding Caniglia’s case, the First Circuit U.S. Court of Appeals acknowledged that “the doctrine’s reach outside the motor vehicle context is ill-defined.” Nevertheless, the court decided to extend that doctrine to cover private homes, ruling that the officers “did not exceed the proper province of their community caretaking responsibilities.”

Siding with law enforcement, the First Circuit noted that a police officer “must act as a master of all emergencies, who is ‘expected to…provide an infinite variety of services to preserve and protect community safety.’” By letting police operate without a warrant, the community caretaking exception is “designed to give police elbow room to take appropriate action,” the court added.

In their opening brief for the Supreme Court, attorneys for Caniglia warned that “extending the community caretaking exception to homes would be anathema to the Fourth Amendment” because it “would grant police a blank check to intrude upon the home.”

That fear is not unwarranted. In jurisdictions that have extended the community caretaking exception to homes, “everything from loud music to leaky pipes have been used to justify warrantless invasion of the home,” a joint amicus brief by the ACLU, the Cato Institute, and the American Conservative Union revealed.

This expansion could also have perverse effects and disincentivize people from calling for help. As that brief noted, “When every interaction with police or request for help can become an invitation for police to invade the home, the willingness of individuals to seek assistance when it is most needed will suffer.”

But in its first amicus brief before the High Court, the Biden Administration glossed over these concerns and called on the justices to uphold the First Circuit’s ruling. Noting that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” the Justice Department argued that warrants should not be “presumptively required when a government official’s action is objectively grounded in a non-investigatory public interest, such as health or safety.”

“The ultimate question in this case is therefore not whether the respondent officers’ actions fit within some narrow warrant exception,” their brief stated, “but instead whether those actions were reasonable,” actions the Justice Department felt were “justified” in Caniglia’s case.

As a fail-safe, the Justice Department also urged the Supreme Court to uphold the lower court ruling on qualified immunity grounds, arguing that the officers’ “actions did not violate any clearly established law so as to render the officers individually liable in a damages action.”

But the Biden Administration, along with the courts that have extended the community caretaking exception, overlook a key component of the Fourth Amendment: the Security Clause. After all, the Fourth Amendment opens with the phrase, “the right of the people to be secure.”

In an amicus brief, the Institute for Justice noted that “to the Founding generation, ‘secure’ did not simply mean the right to be ‘spared’ an unreasonable search or seizure” but also involved “harms attributable to the potential for unreasonable searches and seizures.” Expanding the community caretaking exception to “allow warrantless entries into peoples’ homes on a whim,” argued the IJ brief, “invokes the arbitrary, looming threat of general writs that so incited the Framers” and would undermine “the right of the people to be secure” in their homes.

The IJ brief further argued that extending the “community caretaking” exception to the home would “flatly contradict” the Supreme Court’s prior rulings, which “has only discussed community caretaking in the context of vehicle searches and seizures.” In those cases, “the animating purpose for the exception [was] to allow officers to remove damaged or abandoned vehicles that pose a risk to public safety.” By contrast, the IJ amicus asserted, “that justification is entirely absent” when it comes to homes.

“The Fourth Amendment protects our right to be secure in our property, which means the right to be free from fear that the police will enter your house without warning or authorization,” said Institute for Justice Attorney Joshua Windham. “A rule that allows police to burst into your home without a warrant whenever they feel they are acting as ‘community caretakers’ is a threat to everyone’s security.”

EFF: LAPD Requested Ring Footage of Black Lives Matter Protests

LAPD Requested Ring Footage of Black Lives Matter Protests comes from the Electronic Frontier Foundation, a nonprofit organization defending civil liberties in the digital world. Ring is Amazon’s home security company most known for its doorbell camera.

Along with other civil liberties organizations and activists, EFF has long warned that Amazon Ring and other networked home surveillance devices could be used to monitor political activity and protests. Now we have documented proof that our fears were founded.

According to emails obtained by EFF, the LAPD sent requests to Amazon Ring users specifically targeting footage of Black-led protests against police violence that occurred in cities across the country last summer. While it is clear that police departments and federal law enforcement across the country used many different technologies to spy on protests, including aerial surveillance and semi-private camera networks, this is the first documented evidence that a police department specifically requested footage from networked home surveillance devices related to last summer’s political activity.

A map of Ring-police partnerships in the United States. Clicking the map will bring you to an interactive version.

In May 2019, LAPD became the 240th public safety agency to sign a formal partnership with Ring and it’s associated app, Neighbors. That number has now skyrocketed to more than 2,000 government agencies. The partnerships allow police to use a law-enforcement portal to canvass local residents for footage.

Requests from police to Ring users typically contain the name of the investigating detective and an explanation of what incident they are investigating. Police requesting footage also specify a time period, usually a range spanning several hours, because it’s often hard to identify exactly what time certain crimes occurred, such as an overnight car break-in.

A June 16, 2020 email showing an LAPD request for footage to an Amazon Ring user.

In its response to EFF’s public records requests, the LAPD produced several messages it sent to Ring users, but redacted details such as the circumstances being investigated and the dates and times of footage requested. However, one email request on behalf of the LAPD “Safe L.A. Task Force” specifically asked for footage related to “the recent protests.” Troublingly, the LAPD also redacted the dates and times sought for the requested footage. This practice is concerning, because if police request hours of footage on either side of a specific incident, they may receive hours of people engaging in First Amendment protected activities with a vague hope that a camera may have captured illegal activity at some point. Redacting the hours of footage the LAPD requested is a cover up of the amount of protest footage the police department sought to acquire.

EFF asked the LAPD for clarification of the specific context under which the department sent requests concerning the protests. The LAPD would not cite a specific crime they were investigating, like a theft from a specific storefront or an act of vandalism. Instead, the LAPD told EFF, “SAFE LA Task Force used several methods in an attempt to identify those involved in criminal behavior.”

Their full response reads:

The SAFE LA Task Force used several methods in an attempt to identify those involved in criminal behavior. One of the methods was surveillance footage. It is not uncommon for investigators to ask businesses or residents if they will voluntarily share their footage with them. Often, surveillance footage is the most valuable piece in an investigators case.

Police have used similar tactics before. EFF investigated the San Francisco Police Department’s use of a Business Improvement District’s network of over 400 cameras to spy on protests in early June 2020, under the guise of public safety and situational awareness. We learned that police gained over a week of live access to the camera network, as well as a 12-hour “data dump” of footage from all cameras in the network. In October 2020, EFF and ACLU of Northern California filed a lawsuit against the City and County of San Francisco on behalf of three protesters. We seek a court order requiring the city to comply with the city’s Surveillance Technology Ordinance by prohibiting the SFPD from acquiring, borrowing, or using non-city networks of surveillance cameras absent prior approval from the city’s Board of Supervisors.

The LAPD announced the creation of the Safe L.A. Task Force on June 2, 2020, in order to receive tips and investigate protests against police violence that started just four days earlier. The LAPD misleadingly labeled these protests as an “Unusual Occurrence (UO).” The FBI announced they would join the task force “in order to investigate significant crimes that occurred at or near locations where legitimate protests and demonstrations took place in Los Angeles beginning on May 29, 2020.” The Los Angeles Police Department, Beverly Hills Police Department, Santa Monica Police Department, Torrance Police Department, Los Angeles City Fire Department, Los Angeles City Attorney’s Office, Los Angeles County District Attorney’s Office, and United States Attorney’s Office for Los Angeles also joined the task force.

Protests began in Los Angeles County following the Minneapolis police killing of George Floyd on May 25, 2020. LAPD sent a number of requests for Ring footage from users starting at the end of May, but because of the extensive redactions of circumstances, dates, and times, we’re unable to verify if all of those requests are related to the protests. However, some of the detectives associated with the Safe L.A. Task Force are the same people that began requesting Ring footage at the end of May and early June.

On June 1, 2020, the same day of Los Angeles’ largest protests, police receive footage from a Ring user.

The LAPD’s response shows that on June 1, 2020, the morning after one of the largest protests of last summer in Los Angeles, Det. Gerry Chamberlain sent Ring users a request for footage. Within two hours, Chamberlain received footage from at least one user. The nature of the request was redacted; however, the next day, his unit was formally assigned to the protest task force.

The LAPD’s handling of last summer’s protest are under investigation after widespread complaints about unchecked suppression and use of disproportionate tactics. At least 10 LAPD officers have been taken off the street pending internal investigations of their use of force during the protests.

Technologies like Ring have the potential to provide the police with video footage covering nearly every inch of an entire neighborhood. This poses an incredible risk to First Amendment rights. People are less likely to exercise their right to political speech, protest, and assembly if they know that police can acquire and retain footage of them. This creates risks of retribution or reprisal, especially at protests against police violence. Ring cameras, ubiquitous in many neighborhoods, create the possibility that if enough people share footage with police, authorities are able to follow protestors’ movements, block by block. Indeed, Gizmodo found that on a walk of less than a mile between a school and its gymnasium in Washington D.C., students had to walk by no less than 13 Ring cameras, whose owners regularly posted footage to social media. Activists may need to walk past many more such cameras during a protest.

We Need New Legal Limits on Police Access

This incident once again shows that modern surveillance technologies are wildly underregulated in the United States. A number of U.S. Senators and other elected officials have commented on—and sent inquiries to Amazon—to uncover how few legal restrictions govern this rapidly growing surveillance empire. The United States is ripe for a legislative overhaul to protect bystanders, as well as consumers, from both corporations and government. A great place to start would be stronger limits on government access to data collected by private companies.

One of EFF’s chief concerns is the ease with which Ring-police partnerships allow police to make bulk requests to Ring users for their footage, although a new feature does allow users to opt out of requests. Ring has introduced end-to-end encryption, preventing police from getting footage directly from Amazon, but this doesn’t limit their ability to send these blanket requests to users. Such “consent searches” pose the greatest problems in high-coercion settings, like police “asking” to search your phone during a traffic stop, but they are also highly problematic in less-coercive settings, like bulk email requests for Ring footage from many residents.

Thus, an important way to prevent police from using privately-owned home security devices as political surveillance machines would be to impose strict regulations governing “Internet of Things” consent search requests.

EFF has previously argued that in less-coercive settings, consent searches should be limited by four rules. First, police must have reasonable suspicion that crime is afoot before sending a request to a specific user. Such requests must be specific, targeting a particular time and place where there is reasonable suspicion that crime has happened, rather than general requests that, for example, blanket an entire neighborhood for an entire day in order to investigate one broken window. Second, police must collect and publish statistics about their consent searches of electronic devices, to deter and detect racial profiling. Third, police and reviewing courts must narrowly construe the scope of a person’s consent to search their device. Fourth, before an officer attempts to acquire footage from a person’s Ring camera, the officer must notify the person of their legal right to refuse.

Ring has made some positive steps concerning its user’s privacy—but the privacy of everyone else in the neighborhood is still in jeopardy. The growing ubiquity of Ring means that if the footage exists, police will continue to access more and more of it. The LAPD’s use of Ring cameras to gather footage of protesters should be a big red flag for politicians.

You can view the emails between Ring and the LAPD below:

nr20-5328_emails_redacted.pdf

See also the older article Everything You Need to Know About Ring, Amazon’s Surveillance Camera Company at Vice.

The Organic Prepper: Facial Recognition – Cashing in on Covid

Robert Wheeler of The Organic Prepper talks about how facial recognition companies are thriving during Covid in Cashing in on Covid: Facial Recognition and Thermal Imaging Techs Are Booming at the Cost of Your Privacy

The COVID-19 pandemic has proven to be the biggest gift possible for tyrants all across the globe. From economic power grabs made by corporations and the incineration of basic civil liberties, the ruling class has introduced itself as the arbiters and dictators of virtually all human interaction.

And the surveillance industry has also benefitted massively from the pandemic.

What’s new in facial recognition?

For instance, facial recognition technology is being rolled out at an alarmingly fast pace. The tech is more and more exact in its capabilities and no longer handicapped by mask wearing or face coverings. In a report by the Department of Homeland Security released in early January 2021, the department admitted to having conducted tests regarding the efficacy of facial recognition technologies in relation to mask wearers.

The test was administered by the DHS Science and Technology Directorate and were conducted as a part of STD’s Biometric Technology Rally, an event held during the fall at the Maryland Test Facility. DHS claims that the success rate for this technology could reduce the need for passengers or travelers to remove their masks at airports or ports of entry.

According to DHS,

The third annual rally evaluated the ability of biometric acquisition systems and matching algorithms to reliably collect and match images of individuals wearing a diverse array of face masks. Previous rallies show biometric systems can excel at rapidly processing high volumes of travelers using face recognition. This year’s focused on using such systems to detect and recognize travelers without asking them to remove their masks, thereby protecting both the public and frontline workers during the COVID-19 era.

The event included 10 days of human testing which involved 60 facial recognition configurations (which used six face and/or iris scanning systems with 10 matching algorithms) and took advantage of 582 “diverse” test volunteers that represented 60 countries. The systems were then evaluated based upon their ability to take images of each volunteer reliably without masks, processing time, and overall satisfaction.

The results? According to the Biometric Rally website:

Without masks, the technology had an average 93% identification rate. The best system had a rate of 100%.

With masks, the technology had an average of 77% accuracy and the best performing system had a rate of 96%.

So much for the theory that “at least the masks will make it harder for them to use facial rec on us.”

Then there’s thermal imaging, too.

But that’s not the only technology that is booming as a result the meeting between the “pandemic” and the surveillance state. Thermal imaging is also in demand as governments across the world begin deploying the technology at airports, railways, and public gathering spaces. The technology is designed to measure a person’s body temperature. In this instance, it will be used to measure whether or not a person has a fever.

Although, a number of American companies are in on the act – Infrared Cameras, Inc. and Omnisense – Chinese companies are also making lots of money on the new rollout, including a company ironically from Wuhan, Wuhan Guide Infrared Co. In fact, the company is making so many that the Chinese military is having to wait for its orders for other products that the company makes.

And if Americans think their “representatives” are going to do anything to stop the rollout, they’re wrong. As TravelPulse writes,

On Friday, U.S. Senate Committee on Commerce, Science, and Transportation Ranking Member Maria Cantwell of Washington and Senator Rick Scott of Florida introduced a proposal for bipartisan legislation that would require the Transportation Security Administration (TSA) to implement temperature screenings at existing airport checkpoints in order to enhance the safety of passenger air travel amid the COVID-19 pandemic.

The Cantwell-Scott ‘Fly Safe and Healthy Act of 2020’ (S. 4623) would task the TSA with ultimately deploying a uniform temperature-check program across the nation’s airports; but, first, to thoroughly test the technology in various scenarios as part of a pilot program prior to the final rollout.

Airport temperature checks would be conducted using innovative, contactless, thermal-camera technology capable of automatically screening large numbers of passengers passing through existing TSA checkpoints. It’s seamless and non-invasive, and such systems have already proven effective for identifying infected individuals and mitigating COVID-19’s spread in other countries.

Senators like Rick Scott have been advocating heavily for the technology. His argument, like the argument of others, is that the tech is needed to help our economy rebound. Of course, the economic crisis in the United States was not caused by a lack of thermal imaging but by government itself, specifically people like Rick Scott. But that’s another story for another time….

It won’t stop with taking your temperature.

Of course, we all know the surveillance isn’t going to stop merely at temperature checks. Back in 2011, an article was published by the BBC entitled, “New Emotion Detector Can See When We’re Lying.” The system, like the temp checkers, is one of interlocked video cameras connected to a “high-resolution thermal imaging sensor and a suite of algorithms.”

The idea is that, since humans give away their emotions through a variety of unconscious means, the ability to read facial cues enables security to interpret the motives of “potential terrorists.” Of course, the label of “potential terrorist” is one that has been applied to virtually every citizen within and without of a western nations’ borders. Nevertheless, in order to measure “emotions,” the system uses eye movements, dilated pupils, biting, nose wrinkling, pressing lips together, heavy breathing, swallowing, blinking, and other facial movements as well as swelling blood vessels around the eyes.

Keep in mind, this technology existed in 2011 and already took advantage of thermal imaging. We are not in uncharted territory here, we are merely witnessing the unfolding of an agenda that was planned long ago.

Privacy is a thing of the past.

Privacy is a thing of the past and has been for a long time. We’ve warned about how frequently Americans are being surveilled, about Ring doorbells, about Amazon’s servers storing government databases to identify us, and about Smart appliances. We’ve talked about Chinese “mind-reading” technology and their social credit system. The pieces are in place – now they’re just perfecting what already exists.

Tenth Amendment Center: No Expectation of Privacy? Are You Sure About That?

Mike Maharrey at the Tenth Amendment Center talks about a reasonable expectation of privacy in public and how government is (should be) held to higher standard.

A lot of people just parrot things they hear without really thinking about it. If they did carefully consider what they were saying, they probably wouldn’t say it. This is particularly true when it comes to mass, warrantless surveillance.

The Lexington Police Department covertly uses two cameras that can be hidden in streetlights and one that is disguised as a utility box. Coupled with the fact that documents released by the LPD during legal proceedings reveal lax policies that could be interpreted to allow surveillance virtually any place at any time, I find the use of these cameras troubling.

But I’ve been told I have no basis to oppose the use of these cameras because, “You have no expectation of privacy in a public place.”

This is true in a technical, legal sense. But just because something is legal doesn’t make it just or ethical. And legality has virtually no bearing on how we live our lives.

And when you really did deep, most people don’t really believe this nonsense.

Based on the “expectation of privacy” doctrine, you can stand on the sidewalk in front of my house and take pictures of my daughter playing in the yard all day every day. You can even take pictures of my wife getting dressed through the window if she forgets to pull the curtains closed. Now, I may not have any legal expectation of privacy in my front yard or through my open blinds, but in the real world, I damn sure expect my daughter to be able to play in the yard and my wife to be able to get dressed free from your video-voyeurism.

And I think most reasonable people have the same expectation. It may not be a valid legal expectation, but it is certainly a reasonable human expectation.

The legal notion of “no expectation of privacy” in public is really meant to apply to incidental observation. I can’t come after you for taking a photo of a bird in my yard even if you happen to capture my daughter in the frame. I can’t demand police arrest you if you happen to glance up and see my wife through an uncovered window. I can’t get angry if I start dancing in a public park and you film me and stick it on YouTube.

But even from a legal standpoint, you can’t spy on me. At some point, your behavior crosses the line from incidental observation to stalking. I’m pretty sure if you saw me standing on the street taking pictures of your kids for hours on end, my insistence that you have “no expectation of privacy” would fall on deaf ears.

Government surveillance is more akin to stalking than incidental observation. If a cop positions a camera in such a way as to capture everything that happens in your yard, that’s a little creepy. It may be legal, but that doesn’t make it right.

In fact, government is held to a higher standard than everyday folks. The Fourth Amendment and privacy protections in every state constitution make this clear. For instance, Section 10 of the Kentucky State Constitution declares:

“The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

If government agents are going to watch me, they should have probable cause and get a warrant. Otherwise, they should leave me alone.

The issue of privacy was one of the flashpoints that led to the American War for Independence.

Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants authorized the holder to search anyplace for smuggled good and did not require any specification as to the place or the suspected goods. Writs of assistance never expired and were considered a valid substitute for specific search warrants. They were also transferable.

Electronic surveillance is the 21st-century version of writs of assistance. They allow police to go on fishing expeditions and watch our every move. They empower law enforcement to track us, document us and monitor us until they find a reason to come after us.

George Orwell’s 1984 was meant to warn us about ubiquitous government surveillance, not serve as an instruction manual.

I’ve written before about the negative impacts of surveillance on society and this odd mantra of “if you have nothing to hide you have nothing to fear.” I encourage you to review that article if you’re still not convinced.

People who roll out arguments like “you have no expectation of privacy” or “if you have nothing to hide you have nothing to fear” are really telling me they simply don’t believe the government would ever target them with surveillance. This mostly comes from conservatives who value law and order. But you should ask yourself a question: who is going to get targeted by surveillance when the government decides it wants to enforce a mask mandate? Or arrest people for attending a church service? Or when they come after a certain kind of gun? You are only one policy-shift away from having the digital crosshairs on your back.

Never forget, the power you give government over others — it also has over you.

EFF: EARN IT Bill to Scan Every Online Message

From digital civil liberties champion Electronic Frontier Foundation, The EARN IT Bill Is the Government’s Plan to Scan Every Message Online

Imagine an Internet where the law required every message sent to be read by government-approved scanning software. Companies that handle such messages wouldn’t be allowed to securely encrypt them, or they’d lose legal protections that allow them to operate.

That’s what the Senate Judiciary Committee has proposed and hopes to pass into law. The so-called EARN IT bill, sponsored by Senators Lindsay Graham (R-SC) and Richard Blumenthal (D-CT), will strip Section 230 protections away from any website that doesn’t follow a list of “best practices,” meaning those sites can be sued into bankruptcy. The “best practices” list will be created by a government commission, headed by Attorney General Barr, who has made it very clear he would like to ban encryption, and guarantee law enforcement “legal access” to any digital message.

The EARN IT bill had its first hearing today, and its supporters’ strategy is clear. Because they didn’t put the word “encryption” in the bill, they’re going to insist it doesn’t affect encryption.

“This bill says nothing about encryption,” co-sponsor Sen. Blumenthal said at today’s hearing. “Have you found a word in this bill about encryption?” he asked one witness.

It’s true that the bill’s authors avoided using that word. But they did propose legislation that enables an all-out assault on encryption. It would create a 19-person commission that’s completely controlled by the Attorney General and law enforcement agencies. And, at the hearing, a Vice-President at the National Center for Missing and Exploited Children (NCMEC) made it clear [PDF] what he wants the best practices to be. NCMEC believes online services should be made to screen their messages for material that NCMEC considers abusive; use screening technology approved by NCMEC and law enforcement; report what they find in the messages to NCMEC; and be held legally responsible for the content of messages sent by others.

You can’t have an Internet where messages are screened en masse, and also have end-to-end encryption any more than you can create backdoors that can only be used by the good guys. The two are mutually exclusive. Concepts like “client-side scanning” aren’t a clever route around this; such scanning is just another way to break end-to-end encryption. Either the message remains private to everyone but its recipients, or it’s available to others…

Click here to read the entire article at EFF.org.

Rutherford Institute: Federal Courts Rule That Individuals Shot by Police but Not Immediately Arrested May Not Sue Police for Wrongdoing Under the Fourth Amendment

From the Rutherford Institute:

In a case before the U.S. Supreme Court that could determine how far the courts may go in shielding police from being held accountable for wrongdoing, The Rutherford Institute is challenging a lower court ruling that prevents victims of police shootings for suing police for violations of their civil rights if the shooting did not result in an immediate arrest.

In an amicus brief filed jointly with the National Association of Criminal Defense Lawyers (NACDL) in Torres v. Madrid, Rutherford Institute attorneys argue that lower courts erred in ruling police did not violate the Fourth Amendment rights of a woman who, mistaking police officers for carjackers, fled from police, was pursued and shot twice in the back. The lower courts reasoned that because the woman was not arrested, she had not technically been “seized” by the police and, thus, could not sue police for “unreasonable searches and seizures” in violation of the Fourth Amendment.

Affiliate attorneys Jeffrey T. Green and John L. Gibbons of Sidley Austin, LLP, and Sarah O’Rourke Schrup of the Northwestern Supreme Court Law Clinic assisted The Rutherford Institute and the NACDL in advancing the arguments in Torres.

“This particular case underscores the unfortunate reality that we live in an age of hollow justice,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “With every ruling handed down, it becomes apparent that the courts are more inclined to render narrow rulings that protect government interests than they are committed to upholding the rights of the people enshrined in the U.S. Constitution.”

Early in the morning of July 15, 2014, Roxanne Torres dropped a friend off at an apartment complex in Albuquerque, N.M. After parking and exiting her car, Torres reentered and remained in the car with the engine running and the car doors locked. At that same time, four New Mexico State Police officers arrived at the complex intending to arrest a woman who was not related to Torres. Two of the officers approached Torres’s car and, with guns drawn, attempted to open the driver side door. Because the officers wore indistinguishable dark clothing and Torres did not hear what they shouted at her, Torres mistook them for carjackers and attempted to drive away. After the car moved forward mere inches, the police opened fire on Torres and she accelerated away. The officers continued shooting at Torres, firing 13 shots in all, two of which struck Torres in the back, paralyzing her right arm. Torres drove a short distance before she was forced by her injuries to stop. When a bystander refused to call police on her behalf, she found another car and drove it to a hospital, where she was airlifted to another hospital due to the seriousness of her injuries. She was subsequently arrested on charges related to fleeing the police.

Torres, in turn, sued the police for using excessive force in violation of the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” However, the trial and appeals courts ruled that because Torres was able to escape after being shot, she had not technically been “seized” by the police. In their amicus brief before the U.S. Supreme Court, which has agreed to hear the case, The Rutherford Institute and the NACDL argue that all uses of unreasonable and excessive force by police merit review under the Fourth Amendment, whether or not the victims of police brutality are arrested or temporarily elude capture.

EFF: Dangers to Privacy in EARN IT Act

The EARN IT Act introduced by Senator Lindsay Graham purports to be for the prevention of online child exploitation “and other purposes.” It’s those other purposes that we need to watch. The EFF, an organization fighting for your digital civil liberties, writes the article Congress Must Stop the Graham-Blumenthal Anti-Security Bill, expounding upon the many dangers lurking inside this bill.

There’s a new and serious threat to both free speech and security online. Under a draft bill that Bloomberg recently leaked, the Attorney General could unilaterally dictate how online platforms and services must operate. If those companies don’t follow the Attorney General’s rules, they could be on the hook for millions of dollars in civil damages and even state criminal penalties.

The bill, known as the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act, grants sweeping powers to the Executive Branch. It opens the door for the government to require new measures to screen users’ speech and even backdoors to read your private communications—a stated goal of one of the bill’s authors.

Senators Lindsay Graham (R-SC) and Richard Blumenthal (D-CT) have been quietly circulating a draft version of EARN IT. Congress must forcefully reject this dangerous bill before it is introduced.

EARN IT Is an Attack on Speech

EARN IT undermines Section 230, the most important law protecting free speech online. Section 230 enforces the common-sense principle that if you say something illegal online, you should be the one held responsible, not the website or platform where you said it (with some important exceptions)…

EARN IT is a direct threat to constitutional protections for free speech and expression. To pass constitutional muster, a law that regulates the content of speech must be as narrowly tailored as possible so as not to chill legitimate, lawful speech. Rather than being narrowly tailored, EARN IT is absurdly broad: under EARN IT, the Commission would effectively have the power to change and broaden the law however it saw fit, as long as it could claim that its recommendations somehow aided in the prevention of child exploitation. Those laws could change and expand unpredictably, especially after changes in the presidential administration…

Throughout his term as Attorney General, William Barr has frequently and vocally demanded “lawful access” to encrypted communications, ignoring the bedrock technical consensus that it is impossible to build a backdoor that is only available to law enforcement. Barr is far from the first administration official to make impossible demands of encryption providers: he joins a long history of government officials from both parties demanding that encryption providers compromise their users’ security.

We know how Barr is going to use his power on the “best practices” panel: to break encryption. He’s said, over and over, that he thinks the “best practice” is to always give law enforcement extraordinary access. So it’s easy to predict that Barr would use EARN IT to demand that providers of end-to-end encrypted communication give law enforcement officers a way to access users’ encrypted messages. This could take the form of straight-up mandated backdoors, or subtler but no less dangerous “solutions” such as client-side scanning. These demands would put encryption providers like WhatsApp and Signal in an awful conundrum: either face the possibility of losing everything in a single lawsuit or knowingly undermine their own users’ security, making all of us more vulnerable to criminals…

Weakening Section 230 makes it much more difficult for a startup to compete with the likes of Facebook or Google. Giving platforms a legal requirement to screen or filter users’ posts makes it extremely difficult for a platform without the resources of the big five tech companies to grow its user base (and of course, if a startup can’t grow its user base, it can’t get the investment necessary to compete)…

Click here to read the entire article at EFF

EFF: US-UK Agreement to Allow Warrantless Access to US Internet Servers

This article is from the Electronic Frontier Foundation, which fights for your digital freedoms, about an agreement between the US and the UK which would allow the UK police access to data held by American companies without following US privacy laws or the 4th Amendment.

Congress, Remember the 4th Amendment? It’s Time to Stop the U.S.-UK Agreement.

Unless Congress stops it, foreign police will soon be able to collect and search data on the servers of U.S. Internet companies. They’ll be able to do it without a probable cause warrant, or any oversight from a U.S. judge. This is all happening because of a new law enforcement deal between the U.S. and the United Kingdom. And while it seeks to exclude purely domestic correspondence between U.S. citizens and residents, plenty of Americans’ data will get swept up when they communicate with targeted individuals located abroad.

This is all happening because, for the first time, the U.S. executive branch is flexing its power to enter into law enforcement agreements under the CLOUD Act. We’ve been strongly opposed to this law since it was introduced last year. The recently signed deal between the U.S. Department of Justice and the U.K. Home Office will allow U.K. police easy access to data held by American companies, regardless of where the data is stored. These U.K. data requests, including demands to collect real-time communications, do not need to meet the standards set by U.S. privacy laws or the 4^th Amendment. Similarly, the deal will allow U.S. police to grab information held by British companies without following U.K. privacy laws.

This deal, negotiated by American and British law enforcement behind closed doors and without public input, will deal a hammer blow to the legal rights of citizens and residents of both countries. And the damage won’t stop there. The U.S.-U.K. Cloud Act Agreement may well become a model for further bilateral deals with other foreign governments and the United States. Earlier this month, Australian law enforcement agencies began negotiating their own deal to directly access private information held by U.S. Internet companies.

There’s still one possible path to put the brakes on this disastrous U.S.-UK deal: Congress can introduce a joint resolution of disapproval of the agreement within 180 days. This week, EFF has joined 19 other privacy, civil liberties, and human rights organizations to publish a joint letter explaining why Congress must take action to resist this deal.

No Prior Judicial Authorization

In the U.S., the standard for when law enforcement can collect stored communications content is clear: police need to get a warrant, based on probable cause. If police want to wiretap an active conversation, they have to satisfy an even higher standard, sometimes called a “super warrant,” that limits both the timing and use of a wiretap. Perhaps most importantly, stored communications warrants and wiretap warrants have to be signed by a U.S. judge, which adds an extra layer of review to whether privacy standards are met. At EFF, a core part of our work is insisting on the importance of a warrant in many different scenarios.

Judicial authorization is a critical step in the U.S. warrant process. When police search people’s private homes, offices, or devices, they must justify why the search for specific evidence outweighs the presumption that individuals remain free from government intrusion. Judicial authorization acts as a safeguard between citizens and law enforcement. Further, history has shown that police can and will abuse their powers for intimidation, or even personal gain. In colonial times, the British military used general warrants to search through colonists’ houses and seize property—actions that helped fuel a revolution, and formed the basis for the 4th Amendment to the U.S. Constitution.

Incredibly, the DOJ has just thrown those rights away. Instead of relying on probable cause, the new agreement uses an untested privacy standard that says that orders must be based on a “reasonable justification based on articulable and credible facts, particularity, legality, and severity.” No judge in any country has decided what this means. Continue reading “EFF: US-UK Agreement to Allow Warrantless Access to US Internet Servers” →

Liberty Blitzkrieg: AG Barr Wants to Kill Privacy and Security

Michael Krieger of Liberty Blitzkrieg has written a post about US Attorney General William Barr who has come out very much against the use of encryption by anyone but the government in recent weeks. The government wants full access to everything that you do and say wherever you are doing it, no matter how personal or private. As usual, it must be done “to save the children.”

William Barr Wants to Kill Privacy and Security…’For the Children’

U.S. Attorney General William Barr, along with co-conspirators in the UK and Australia, recently wrote a letter to Mark Zuckerberg requesting he not move forward with a plan to implement end-to-end encryption across Facebook’s messaging services. A draft of the letter was published earlier this month by Buzzfeed, and it’s worth examining in some detail.

What immediately strikes you is the letter’s emphasis on “protecting the children,” a talking point universally used by authoritarians throughout history to justify both a reduction of public liberty and a transfer of increased power to the state. Though this tactic is transparent and well understood by those paying attention, it’s nevertheless disturbing to observe Barr’s disingenuous and shameless use of it (the words ‘child’ and ‘children’ appear 17 times in the course of this brief letter).

Here’s just one example from the letter:

Companies should not deliberately design their systems to preclude any form of access to content, even for preventing or investigating the most serious crimes. This puts our citizens and societies at risk by severely eroding a company’s ability to detect and respond to illegal content and activity, such as child sexual exploitation and abuse, terrorism, and foreign adversaries’ attempts to undermine democratic values and institutions, preventing the prosecution of offenders and safeguarding of victims. It also impedes law enforcement’s ability to investigate these and other serious crimes. Risks to public safety from Facebook’s proposals are exacerbated in the context of a single platform that would combine inaccessible messaging services with open profiles, providing unique routes for prospective offenders to identify and groom our children.

Barr and the U.S. government feign deep concern regarding the ability of bad people to “identify and groom our children,” yet this is the same guy and government who allowed Jeffrey Epstein to be suicided in a Department of Justice prison just a few months ago. It’s the same guy and government who can’t find or doesn’t want to find Ghislaine Maxwell. And it’s same guy and government that can’t be bothered to raid Epstein’s New Mexico ranch despite known instances of child abuse there…

Click here to read the entire article at Liberty Blitzkrieg.

More Anti-Gun Crazy from New York

From RochesterFirst.com, more proof that the inmates are running the asylum – Proposed law would let State search gun owner’s social media and internet history. The privacy invasions involved in this bill are a new level of crazy. Look for more of this mental diarrhea coming to a state near you.

A new act introduced in the New York State Assembly this month would require pistol owners to submit to a “social media review.”

Anyone applying for, or renewing a pistol permit would have to give up all login information, including passwords, for any social media sites they’re a part of.

Posts from the past three years on site like Facebook, Twitter and Snapchat would be reviewed for language containing slurs, racial/gender bias, threats and terrorism.

One year of search history on Google/Yahoo/Bing would also be reviewed.

Conservative Firing Line: New York Senate Bill 9191 – Destroying the Bill of Rights