Warrants Authorize Supercharged Searches Online

From Issue 1.66 - By Aaron Rieke
Aaron Rieke  -  

With so much attention focused on the NSA, it can be easy to forget how powerful an old-fashioned warrant can be, especially when used online. Last year, New York prosecutors demanded that Facebook turn over every scrap of information from the accounts of 381 people, including their private photos and conversations. A judge had issued a sweeping set of warrants in a disability fraud investigation.

Facebook balked. The company argued that it should be able to challenge search warrants on behalf of its users. The warrants are “the digital equivalent of seizing everything in someone’s home,” Facebook wrote in a brief. “Except here, it is not a single home but an entire neighborhood of nearly 400 homes.”

Of those whose who had their Facebook accounts searched, approximately 300 were never charged.

Last week, a New York State appeals court took up Facebook’s case. The Manhattan district attorney’s office argued that social media firms have no more right to challenge a warrant than a landlord of a physical storage space. Leading legal commentators seem to agree. “‘Can [Facebook] challenge warrants for their customers?’ [I] think the answer is probably not, under current law,” concludes Orin S. Kerr, a law professor at George Washington University.

But the New York judges were clearly troubled. “You could do a physical search warrant and not get a smidgen of what you get out Facebook,” observed Justice Sallie Manzanet-Daniels.” And Justice Judith J. Gische puzzled over a fix: “I think it’s clear that we as a bench perceive something troubling about what’s going on, but is this something that should be addressed legislatively? Is it really a legislative fix and not a court fix?”

How the NYPD Uses Social Media to Investigate Harlem Teens

From Issue 1.66 - By Aaron Rieke
Aaron Rieke  -  

The intersection of social media, street gangs, and police surveillance has created a new reality for teenagers. “For those coming of age in gang-saturated areas, the mountains of digital media posted online are a tangled web of connections that can be used to lock up violent perpetrators—but can also ensnare the innocent along with them,” reports Ben Popper on the Verge.

Popper’s piece, How the NYPD is using social media to put Harlem teens behind bars, is worth a read in full. It delves into the story of one teen, Jelani Henry, who says his activity on Facebook landed him in Rikers.

The story shows that police will sometimes use social media to surveil children long before they have a serious criminal record. “The mix of social media and conspiracy statutes creates a dragnet that can bring almost anybody in,” says Andrew Laufer, a New York City attorney. “It’s a complete violation of the Fourth Amendment and the worst kind of big brother law enforcement.”

But some who work with at-risk youth believe that police should use social media in pursuit of public safety. “Nobody wants to see 14- and 15-year-old kids getting locked up,” says Chris Watler, Project Director at the Harlem Community Justice Center. “But if a kid is picking up a gun, or shooting other kids, we need to stop them from doing that. If you have a kids posing online with a gun, what is the obligation of law enforcement?”

Also of Note: December 17, 2014

From Issue 1.66 - By Aaron Rieke
Aaron Rieke  -  
  • “[M]edical and financial records are, by statute and rule, readily available to the [federal] intelligence community,” despite government attorneys’ claims to the contrary, argues Jonathan Mayer of Stanford University.

  • A federal judge recently threw out evidence gathered by a webcam that police nailed to a utility pole 100 yard from a suspect’s home. “The American people have a reasonable expectation of privacy in the activities occurring in and around the front yard of their homes particularly where the home is located in a very rural, isolated setting,” the judge ruled.

  • Democratic Senators asked Homeland Security a series of direct questions about stingrays, devices that vacuum up signals from mobile phones, in a letter last week. The questions included: “In what types of operations are these devices deployed? What statutory authority permits the use of this surveillance technology?”

  • The FCC recently approved more than a billion dollars in additional funds to bring high-speed internet connections and Wi-Fi to schools.

  • While shopping for holiday gifts, you might have been asked to provide your phone number or your email address after swiping your credit card. In addition to enabling the merchant to contact you in the future, you might also be helping “internet giants like Facebook to show advertisers that ads they post online can lead to purchases in real-world stores,” reports Wired.

As Education Data Grows, Laws Strain and Privacy Advocates Fret

From Issue 1.65 - By Aaron Rieke
Aaron Rieke  -  

Public and private institutions are rapidly creating and collecting new kinds of student data. Online courses (so-called “MOOCs” or massive open online courses) are now catering to middle and high school students, and are increasingly assigned by real-world teachers. And new data initiatives are seeking to collect huge amounts of anonymized student data, including biometric data and measurements of students’ “affective emotional states.” Already, researchers can measure students’ boredom, confusion, and confidence by the cadence of their keystrokes.

These two examples just scratch the surface.

Student data has obvious and important utility: it can lead researchers to new insights about how people learn, and can help shape student-focused educational software. But it can also dramatically impact a child’s future.

It is clear that many parents are nervous. Earlier this year, InBloom, a high-profile non-profit venture aimed at more effectively managing K-12 student data, shut down. It’s principle sin: underestimating the careful communication required to work with young students’ data.

Adding to this anxiety is the fact that a key federal educational privacy law, the Family Educational Rights and Privacy Act (FERPA), is showing its age. FERPA protects student education records entrusted to schools. But new student data is “increasingly operating outside of the parameters of [the law],” says Khalia Barnes, a lawyer with the Electronic Privacy Information Group.

FERPA’s scope is less than clear: “Because of the diversity and variety of online educational services, there is no universal answer to [the question of what is covered by FERPA],” acknowledges the Department of Education in recent guidance. For example, many MOOCs don’t qualify as schools, but their data may become regulated if tied to a student’s grade. And although the law doesn’t cover anonymized data, it does cover data that can create a link to a student’s identity when combined with other data, a legal standard that tees up tough technical questions.

Some states, most notably California, have recently moved ahead with new education privacy laws.

NSA’s Bulk Metadata Surveillance Reauthorized (Again); Court Challenges Move Forward

From Issue 1.65 - By Aaron Rieke
Aaron Rieke  -  

The NSA’s bulk phone metadata surveillance program was reauthorized for the fourth time on Monday, despite President Obama’s promise to reform it in January. Phone companies will continue sending the government a huge number of records, including phone numbers for all calls.

The controversial program would have been ended under the USA Freedom Act, which was blocked in the Senate.

As we’ve written before, metadata can be surprisingly revealing. And although national security is the most-cited justification for national surveillance programs, the same kinds of tools are also being used for a range of other purposes, including drug enforcement.

Senate Judiciary Chairman Patrick Leahy urged the President to let the program die. “The President can end the NSA’s dragnet collection of Americans’ phone records once and for all by not seeking reauthorization of this program by the FISA Court, and once again, I urge him to do just that,” he said. “Doing so would not be a substitute for comprehensive surveillance reform legislation—but it would be an important first step.”

In the meantime, court challenges continue. Some predict these will culminate at the Supreme Court.

Also of Note: December 10, 2014

From Issue 1.65 - By Aaron Rieke
Aaron Rieke  -  
  • The Obama administration will “soon issue new rules curtailing the use of profiling, but federal agents will still be allowed to consider race and ethnicity when stopping people at airports, border crossings and immigration checkpoints,” reports the New York Times.

  • A California state appellate court has ruled that a state law requiring the collection of DNA samples from those arrested (not charged or convicted) on suspicion of a felony violates its state constitution.

  • Bills banning the federal government from weakening digital security have been introduced in both the House and the Senate, a response to the FBI’s demand that it be able to access encrypted mobile devices. (Our previous coverage of the issue is here.)

  • Facebook’s psychological study, which involved altering hundreds of thousands of users’ news feeds, became the “the most shared academic paper of 2014,” reports the Verge. It seems that people are paying attention to the power of corporate big data.

White House Sees Flaws in Police Gear Transfers, Pledges Further Review

From Issue 1.64 - By Aaron Rieke
Aaron Rieke  -  

The White House recently released a report and two modest policy initiatives aimed at reforming controversial programs that equip local police with military equipment. It also proposed a $263 million investment package to increase the use of body-worn cameras and expand training for local police officers. The announcements are the product of a review triggered by public concern over police use of military gear in Ferguson, Missouri.

The short report focused on federal programs that provide equipment to state and local law enforcement. It acknowledged that such programs have “significantly expanded over decades” without appropriate procedures and training programs. Among its other key findings:

  • The federal government cannot account for much of the equipment that it sends to local police. The report found that “there may be no single entity in the federal government able to track particular pieces of equipment at any one time.” Police that misuse funds and equipment may not be held accountable, and are “easily able to draw from multiple other federal government sources.”

  • Local elected officials are often not consulted about equipment transfers. Because police can “request equipment outside of a local government’s standard budget process and without civilian (non-police) government approval,” local elected officials are frequently not involved in decisionmaking about new equipment. As a result, some police departments possess tools that are ill-suited for their “size and training capacity.”

  • Most equipment transferred from federal agencies to local police is not military in nature. For example, under the Department of Defense’s so-called “1033 program,” which authorizes the transfer of excess federal supplies, only 4% of property transferred was considered military in nature. But in absolute terms, there are likely at least 460,000 pieces of military gear in the hands of police across the country. And this count does not include “other technological equipment,” which might include new surveillance tools.

  • Equipment transfer programs have been useful and can contribute to public safety. The report found that these programs have “been valuable and have provided state and local law enforcement with needed assistance as they carry out their critical missions in helping to keep the American people safe.” Bloomberg reports that White House Press Secretary Josh Earnest said the programs were particularly valuable in the wake of the Boston Marathon bombing.

The White House also announced two executive orders. Both are opportunities for civil rights groups to contribute. One will establish a 90-day task force to “examine, among other issues, how to promote effective crime reduction while building public trust” to be led by Philadelphia Police Commissioner Charles H. Ramsay and George Mason University professor Laurie Robinson, a former Justice Department official. The other will give relevant agencies 120 days to develop recommendations for improving how police acquire equipment.

Some critics complained that the White House’s announcements didn’t go far enough, highlighting the lack of substantive change to law or agency policy. “Four months of research into the bullets and tanks that took over Ferguson, and the White House’s report is basically a survey of agency regulations that offered virtually no analysis of the problem – or even really a solution,” lamented Trevor Timm of The Guardian.

It is hard to characterize these announcements as anything but modest. And the White House’s review makes it clear that these programs won’t be scrapped. However, it is also clear that there is lots of work to be done.

Supreme Court Seeks Standard for Online Threats

From Issue 1.64 - By Aaron Rieke
Aaron Rieke  -  

The Supreme Court on Monday considered what kinds of online threats may be prosecuted as crimes. The Court grappled with the dividing line between “true threats” that are not covered by the First Amendment and self expression that is. The outcome of the case will “almost certainly … be felt in the very public spaces of such Internet sites as Facebook,” writes Lyle Denniston of SCOTUSblog.

The case, Elonis v. US, focuses on a series of violent and disturbing Facebook posts made by Anthony Elonis, many of which were directed at his ex-wife. For example, in one such post he wrote: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” His estranged wife testified that she saw these posts as threats. “I felt extremely afraid for mine and my children’s and my family’s lives,” she said.

Elonis was charged and convicted under a federal law that prohibits transmitting threats in interstate commerce. During his appeals, Elonis argued that his posts were more akin to rap lyrics than true threats. “In other words, he didn’t mean it,” summarizes Caitlin Dewey of The Washington Post.

The Court will focus on deciding whose point of view matters when determining whether a threat is a “true threat”: Is it the person making the disturbing remarks, or is it the people who hear or read them?

On one hand, the lower the bar, the easier it is for prosecutors to pursue high-profile threats — threats that have, overwhelmingly, been targeted at women. On the other hand, too low a bar opens the door for a wide range of online discussion to be criminalized or shut down. “Make it too easy to prove a threat, and government can muzzle those it dislikes; make it too hard, and the rest of us—on the job, on the streets, and in our homes—are at the mercy of men like Elonis,” writes Garret Epps in The Atlantic.

As for the Justices, there was “perhaps the beginning of a consensus that it would be enough to require prosecutors to prove that Mr. Elonis had been subjectively aware that his posts would scare and disturb his wife,” reports the New York Times.

Also of Note: December 3, 2014

From Issue 1.64 - By Aaron Rieke
Aaron Rieke  -  
  • On the subject of online harassment, Twitter recently announced new tools to make it easier to report abuse from other users. The tools come in the wake of “numerous cases involving vile language and threats of rape or death made to Twitter users,” reports the New York Times.

  • California handed down its first criminal sentence under its new “revenge porn” law, which prohibits the unauthorized posting of nude or sexual images of an individual with the purpose of causing emotional distress.

  • A New Mexico police offer was “fired for allegedly not following an order to record and upload all contacts with citizens,” reports the Wall Street Journal.

  • The Justice Department is trying to use a 225-year-old law to compel a phone maker to decrypt a password-protected device.

  • It’s not just law enforcement and Amazon that have an opinion about drones. The National Press Photographers Association is weighing in on how regulate use of drones. “Visual journalists rely on the latest available technology, including aerial photography, in their efforts to inform the public,” the association said.

Brown Family Seeks Video Cameras on All Police

From Issue 1.63 - By David Robinson
David Robinson  -  

On Monday, the nation learned that a grand jury has declined to charge police officer Darren Wilson in the shooting death of unarmed black teenager Michael Brown, a development that brings the case back to the forefront of national news. Evidence reviewed by the grand jury in Saint Louis county included conflicting eye witness accounts of the deadly confrontation between Wilson and Brown — an issue that the prosecutor emphasized in his Monday evening press conference announcing the grand jury’s decision.

Brown’s parents, in a public statement following the news, said they were “profoundly disappointed that the killer of our child will not face the consequence of his actions.” They called on the millions of Americans who share their disappointment to “work together to fix the system that allowed this to happen,” and specifically to “[j]oin with us in our campaign to ensure that every police officer working the streets in this country wears a body camera.”

The statement adds to growing national momentum for body worn cameras, small digital video recorders that police can wear as an element of the uniform. We’ve prepared a short briefing that explains the issue from a civil rights perspective: The cameras have strong potential to promote police accountability, and have drawn support from a wide range of stakeholders, from the ACLU to the NAACP to police unions.

Important policy and advocacy work remains to be done in the coming months, as police forces nationwide deploy these cameras and develop policies to govern their use. When should the cameras be rolling? How much discretion should officers have in their use? What are appropriate limits on the retention and use of this massive quantity of new video evidence? How can the new cameras be managed to avoid discouraging witnesses or victims of crimes from interacting with police? All of these questions urgently need answers, and social justice advocates will have a major role to play in resolving them.