David Kirkpatrick

September 8, 2010

Department of Homeland Security sued for illegal search and seizure

This is a long overdue lawsuit. Unbeknownst to many United States citizens, if you leave the country with an electronic device — like a smartphone, cell phone, camera, or more likely, a laptop — your electronics can be seized, searched and contents archived by the Department of Homeland Security with no due process other than a field officer deciding you might be a threat to the nation.

I’ve blogged about this very topic a couple of times — first back in June 2008 and again in September 2009 — and my sense of outrage at the privacy and civil liberties violation hasn’t abated. Sure we need to protect the nation and monitor who comes and goes into and out of the country, but with the due process that represents the best of America. In the post-9/11 world, policies like this are slowly turning the United States into a police state that would be unrecognizable to the Founding Fathers.

From the first link:

Civil liberties groups sued the Department of Homeland Security on Tuesday, alleging that the government should not be able to search, copy or keep the data on electronic devices carried by people crossing the border without a reasonable suspicion of wrongdoing.

The American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal Defense Layers (NACDL) announced on Tuesday that they filed a lawsuit against the policy, arguing that Americans “do not surrender their privacy and free speech rights when they travel abroad.”

DHS policy says that electronic devices such as laptops, cameras and cell phones can be searched as a matter of course, and that the border agents can copy the contents of the devices in order to continue searching them once the traveler has been allowed to enter the U.S. — even if the traveler is not suspected of any wrongdoing. Information obtained by the ACLU indicated that over 6,600 travelers — nearly half of whom are U.S. citizens — had their electronic devices searched at the border between Oct. 1, 2008 and June 2, 2010.

Update 9/10/10 — In the meantime, here’s a CIO.com article on getting your data across the border while avoiding the invasive scrutiny of the DHS.

January 29, 2010

Cloud computing and privacy

The early results are not too promising.

From the link:

Loosely defined, cloud computing involves programs or services that run on Internet servers. Despite the buzz surrounding it, the idea isn’t new–think Web mail. But huge benefits, such as being able to gain access to your data from anywhere and not having to worry about backups, have led more people to leap to the Internet to do everything from writing documents and watching movies to managing their businesses. Unfortunately, privacy is often still stuck at home.

Behind the Times

Archaic laws that focus on where your information is, rather than what it is, are part of the problem. But a disturbing lack of respect for essential privacy among industry heavyweights who should know better is also evident.

Consider comments that Google CEO Eric Schmidt made during a recent CNBC interview. In response to the question, “People are treating Google (GOOG) like their most trusted friend. Should they be?” Schmidt responded, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.

This kind of “only the guilty have anything to hide” mindset is a privacy killer, and rests on the completely flawed no tion that people want privacy only when they’re doing something wrong. There’s nothing wrong with my taking a shower or searching for information about a medical condition. But it’s still private.

It’s possible Schmidt spoke without thinking–Google is mum for now on the prospect of issuing a clarification of any kind. But meanwhile, privacy is taking a pounding in other areas, as well.

Last summer, a U.S. District Court judge in Oregon ruled that government law enforcement agencies need not provide you with a copy of a warrant they have obtained in order to read all of your e-mail stored on an Internet server–where most of us keep e-mail these days. It’s sufficient to give your Internet service provider notice, according to Judge Michael Mosman.

In his opinion and order, Mosman noted the Fourth Amendment’s “strong privacy protection for homes and the items within them in the physical world.” Still, he said, “When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all.”

I bolded that last bit of text, and that may be the most important statement regarding cloud computing and privacy — when you are operating in the cloud, United States Fourth Amendment law as it is currently read does not protect your privacy.

Let me restate that — any actions you take in any aspect of cloud computing conceivably are not covered by your Fourth Amendment right to privacy. This fact should give anyone who is considering the cloud for anything beyond trivial usage a great deal of pause.

December 29, 2009

Out of this list of security predictions for 2010 …

… from PC World, here’s three I’d like to see come to pass:

* The FBI issues tens of thousands of security letters to get records on individuals without warrants. Congress investigates and is appalled at the FBI’s “underreporting”. The FBI promises to do better (see 2009, and 2008 and 2007….). The 4th amendment continues to erode into meaninglessness.

* Real ID dies a deserved death and is abandoned in 2010. The brain dead idea of better-security-via-universal-ID unfortunately persists despite the enormous number of identity theft victims created by over-reliance on SSN.

* The Transportation Security Administration stops wasting billions of dollars in traveller delays by confiscating water bottles and removing shoes. Instead it focuses on real threats based on rational risk assessment, not security theater based on movie-plots (hat-tip Bruce Schneier). OK, unlikely, but I can dream, can’t I?

(Obviously that last one went out the window with the terrorism attempt over Christmas.)

October 23, 2009

Cato v. Heritage

On the topic of the Patriot Act two right leaning think tanks pair off. This she says/he says is a nice, succinct illustration of one key difference between the right-wing hawkishness/pro-military industrial complex and libertarian schools of thought.

In a nutshell, the Heritage Foundation is all for the Patriot Act and its civil liberties trampling totality. The Cato Institute is for protecting the hard-won freedoms of American citizens while continuing to work at keeping the U.S. safe from terrorism.

The point further boils down to: do you trust handing the government total control over your civil liberties and right to privacy, or not. Personally I’m 100 percent behind the Cato approach, and honestly the Heritage position strikes me as profoundly un-American. The founding fathers would certainly not recognize the Heritage stance as having anything to do with their noble ideals.

October 16, 2009

Alvarez v. Smith

Why is this Supreme Court case important?

I’ll let Cato’s Ilya Somin provide the details:

Today, the Supreme Court hears Alvarez v. Smith, an important case that will affect the constitutional property rights of many people around the country but has failed to attract the attention as it deserves.

In Alvarez, the federal Seventh Circuit Court of Appeals ruled that it was unconstitutional for Chicago police to seize cars and other property and hold it for many months at a time a without giving the owners any chance challenge the seizure. The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without any kind of legal hearing. This rule applies even to property owned by completely innocent persons who simply had their possessions caught up in a drug investigation through no fault of their own – for example, if someone else used their car to transport illegal drugs without their knowledge. The three car owners involved in Alvarez were never even charged with a crime, much less convicted. Under DAFPA, the authorities also don’t have to prove that keeping innocent owners’ property is necessary in order to prevent the loss of valuable evidence.

September 4, 2009

Homeland Security, borders and electronics

I’m no fan of the bureaucratic mess that is the Department of Homeland Security. I”ve always maintained we had a great security apparatus in place before 9/11, it was simply misused. The DHS? More politicized and certainly no better, and almost more certainly much worse, than the pre-9/11 FBI, CIA, NSA, et.al.

This particular outrage has bothered me for a long time. I don’t think I’ve blogged about it before and it is a massive privacy violation that every American should know about.

From the second link:

Earlier this week, the U.S. Department of Homeland Security made it clear that border crossing officials could continue to search any device that can store electronic media without any suspicion of wrongdoing.

Although the revised policy ensures searches will be completed in a “timely manner” (up to 30 days) and that travelers will stay informed about the search’s progress, travelers crossing the border might want to consider a few things.

Officials can still seize any device (including MP3 players or flash drives) and look at any file on it (including Internet browsing history) without giving any reason.

Click here to find out more!

The Association of Corporate Travel Executives (ACTE) believes agents take laptops, make an image of the hard drive and then return the laptop to its owner in the mail. Any copied files could be stored “indefinitely.” (Imagine what the Border Patrol’s iTunes Library will look like after “indefinitely” storing DRM-free music from several dozen searches.) The ACLU is also taking a dim view of the DHS policy, and is challenging it in court.

July 25, 2009

9/11 changed everything …

Filed under: Politics — Tags: , , , , , , , — David Kirkpatrick @ 2:39 pm

… and almost gave rise to a tyrannical police state in America. If Dick Cheney had his way with every policy directive the terrorists would truly have won.

Thanks, Dick.

From the link:

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

July 24, 2009

The NSA wiretapped US citizens …

… and the mainstream media brushed the story under the proverbial rug. Just imagine, the MSM totally failed at doing its job. Er, scratch that bit of sarcasm. The MSM has been so full of fail for so long it’s far beyond parody.

From the link:

The cliché doesn’t seem far off the mark after reading Mark Klein’s new book, “Wiring up the Big Brother Machine … and Fighting It.” It’s an account of his experiences as the whistleblower who exposed a secret room at a Folsom Street facility in San Francisco that was apparently used to monitor the Internet communications of ordinary Americans.

Klein, 64, was a retired AT&T communications technician in December 2005, when he read the New York Times story that blew the lid off the Bush administration’s warrantless wiretapping program. Secretly authorized in 2002, the program lets the U.S. National Security Agency (NSA) monitor telephone conversations and e-mail messages of people inside the U.S. in order to identify suspected terrorists. Klein knew right away that he had proof — documents from his time at AT&T — that could provide a snapshot of how the program was siphoning data off of the AT&T network in San Francisco.

Click here to find out more!Amazingly, however, nobody wanted to hear his story. In his book he talks about meetings with reporters and privacy groups that went nowhere until a fateful January 20, 2006, meeting with Kevin Bankston of the Electronic Frontier Foundation (EFF). Bankston was preparing a lawsuit that he hoped would put a stop to the wiretap program, and Klein was just the kind of witness the EFF was looking for.

June 1, 2009

Massive privacy violation in Colorado

Filed under: Politics — Tags: , , , , , — David Kirkpatrick @ 3:46 pm

Astounding investigative overreach in Colorado while looking for illegal immigrants. Glad to see the judges in the case see things the same way. Fourth Amendment anyone?

From the link:

Immigrant advocates say they’ve seen nothing like it before or since: A prosecutor looking for illegal immigrants seized thousands of confidential tax records from an income tax preparer popular with Hispanics in this northern Colorado city.The October seizures led to identity theft and criminal impersonation charges against more than 70 people, and prosecutors allege that as many as 1,300 suspected illegal immigrants were working using false or stolen Social Security numbers.

But the American Civil Liberties Union said the documents of as many as 4,900 people were seized, many of them legal residents, and that the probe was the “equivalent of a house-by-house search of innocent homeowners in order to find a suspect believed to be somewhere in the neighborhood.”

Two judges have agreed, ruling that Weld County District Attorney Ken Buck had no probable cause to seize the records. Buck is appealing, however, and a ruling in his favor could open up a new avenue for prosecuting illegal immigrants.

April 3, 2008

Domestic aspect to John Yoo’s torture memo

Filed under: Politics — Tags: , , , , , — David Kirkpatrick @ 2:17 am

I’m sure the interested web surfer has found plenty of information about the now declassified “torture” memo authored by John Yoo.

Here’s a Boing Boing post oulining a chilling domestic aspect to the memo. The Bush 43 regime essentially gutted the Bill of Rights on US soil.

The post:

Bush administration: Fourth Amendment doesn’t apply to domestic military operations

Danny sez, “Following on from the memo allowing torture overseas, Kurt Opsahl from EFF has spotted a footnoted reference to a memo from the Administration that says ‘our Office recently concluded that the Fourth Amendment had no application to domestic military operations.’ So, if you’re abroad and deemed an enemy combatant you can be tortured. If you’re in the US, and you’re caught up in a “military operation”, you lose the bill of rights. Where exactly is the constitution supposed to apply?” Link (Thanks, Danny!)