Location Apps Sharing Data With Governments

July 16th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

(Update: correction below)

Forbes reported last week that the crowdsourced mapping location service Waze is beginning to share bulk location data with government bodies—with Rio de Janeiro since 2013, and soon with the state of Florida. The cycling app Strava is also in talks to begin selling its data to urban planners, and the public-transportation app Moovit is already selling data to multiple cities.

We are not to worry about our privacy, a Waze spokesperson tells us, because the company replaces the names that accompany driving data with an alias.

The problem is, your location history IS your identity.

I use Waze sometimes, and all of my trips either begin or end at my home, so attaching an alias to my data does me little good in terms of privacy. In fact, as I’ve discussed before, it turns out that even relatively rough location information about a person will often identify them uniquely. For example, according to this study, just knowing the zip code (actually census tract, which is basically equivalent) of where you work, and where you live, will uniquely identify 5% of the population, and for half of Americans will place them in a group of 21 people or fewer. If you know the “census blocks” where somebody works and lives (an area roughly the size of a block in a city, but much larger in rural areas), the accuracy is much higher, with at least half the population being uniquely identified.

But of course Waze’s data could be used to get more precise data than that—in many cases, to determine a vehicle’s home address, which pretty much reveals who you are if you’re in a single-family home, and narrows it down pretty well even if you’re in a large apartment building. (Academic papers have been written on inferring home address from location data sets.)

To truly anonymize the data set, these companies would need to do much more. Possibilities might include snipping off the first and last mile of each journey (or whatever distance data scientists find is necessary depending on population density), introducing random changes or “fuzzing” the data, or lowering the resolution of the data by reducing the significant bits or resolution of the GPS coordinates. These techniques are not without their problems (snipping the trips would make short trips disappear from the database, for example, and fuzzing the data is susceptible to statistical cleaning). But, these problems are being worked on.

These kinds of data sets may prove truly useful for urban planners, who after all are working to make life better for everyone. Well-planned cities are certainly much more socially valuable than advertisers trying to shave a few cents’ more of efficiency out of ad delivery (though, at least one of the companies, Moovit, is also exploring sale of data to advertisers). We might hope that more robust anonymization techniques could preserve privacy without sacrificing the data’s usefulness to planners—or at least that some usefulness could be saved. But in the end, we do not want to become a society where individuals are constantly tracked, even if we pay some price in efficiency.

Meanwhile, if you use location services and don’t want records of your comings and goings landing in the laps of government officials and who-knows-who-else down the line, one simple solution is to, where practical and safe, keep the app turned off until you’re a mile from your home, and turn it off a mile before your destination.

Update & correction (7/16)

A representative of Waze (owned by Google), Julie Anne Mossler, sent a response to this post:

Waze only transmits road closures and incident reports to partners (accidents, traffic jams as reported by users) This information is 100% non-identifiable.

Waze does not allow free, unfiltered access to its data; rather, the company creates spreadsheets or opens its API to select partners which only passes along information critical to the partner’s specific issue.

For example, when we share an accident alert, the government does not know any identifying information about the cars involved, just that a Waze user nearby reported there was an incident. Even the Waze reporter is identified only by user name. Waze never collects license plate or similar identification at any time during a consumer’s use of the app. Even if we wanted to share a driver's route, we would not have the ability simply because of how this information is stored. And we have no desire to do so.

We are also in full compliance with Google’s policies regarding data sharing, considered to be some of the most stringent in the world.

This is good news! I don’t see any privacy problem with the sharing of data that Mossler describes. The Forbes article reads:

What may be especially tantalizing for planners is the super-accurate read Waze gets on exactly where drivers are going, by pinging their phones’ GPS once every second. The app can tell how fast a driver is moving and even get a complete record of their driving history, according to Waze spokesperson Julie Mossler. (UPDATE: Since this story was first published Waze has asked to clarify that it separates users’ names and their 30-day driving info. The driving history is categorized under an alias.)

This passively-tracked GPS data “is not something we share,” she adds. Waze, which Google bought last year for $1.3 billion, can turn the data spigots on and off through its application programing interface (API)

I don’t remember reading the line about “not something we share,” apparently I just missed it and therefore misunderstood what was happening, for which I apologize.

We’re glad to clarify that Google is not offering complete user location data to governments. We hope it will stay that way. These are, as Forbes said, “tantalizing” data sets, which is just one reason I still don’t like Google compiling and retaining my location data itself, even if it doesn’t share it.

Finally, remember that this is not just about Waze. There are a lot of other location apps and services out there, and will be even more the future. (I have sent a note to Strava and Moovit asking if they would also like to respond to what I’ve written and will update further as appropriate.)

Update 2 (7/17/14):

Representatives from Strava and Moovit contacted me to confirm that the way that they aggregate user data does not reveal individual location trails. Moovit wrote, "Moovit only shares data about average transit speeds and incident reports about specific lines (overcrowding, which buses have handicapped access)." Strava told me they provide cities with minute-by-minute counts of how many cyclists are on each block, and their directions of travel, but again don't provide whole data trails.


Fact-checking Representative Pittenger on NSA Reform

July 15th, 2014 No Comments   Posted in ACLU Nationwide
By Neema Singh Guliani, ACLU Washington Legislative Office

Last week, the Wall Street Journal published an op-ed by Rep. Robert Pittenger (R-N.C.), criticizing a bipartisan amendment on NSA reform to the House Defense Appropriations bill. The amendment, which Pittenger called "a Congressional mistake," passed the House by an overwhelming majority.

Unfortunately, the op-ed was a mistake, filled with half-truths and inaccuracies which mischaracterized the amendment as an attack on our national security. To rebut Rep. Pittenger's misguided attempt to derail necessary NSA reform, we've fact-checked his op-ed.

By approving the Massie-Lofgren amendment…Congress prohibited U.S. intelligence agencies from reviewing the emails and telephone calls of foreign-based terrorists to determine if they are plotting an attack with someone based inside the U.S…

This assertion by Rep. Pittenger is inaccurate. The Massie-Lofgren amendment – which was actually also sponsored by Rep. Jim Sensenbrenner (R-Wis.), an original co-sponsor of the Patriot Act – places no additional restrictions on the government's ability to collect information from individuals abroad. As I've noted previously, what the amendment does do is partially close the so-called "back door search loophole" – where the government can search communications collected under Section 702 of Foreign Intelligence Surveillance Act for the emails and text messages of specific U.S. citizens and residents, without a warrant.

Section 702 was designed to grant the government the authority to conduct warrantless surveillance (which has its own problems) of international communications, including communications involving U.S. persons, so long as the target is a non-U.S. person overseas. But, as a Washington Post investigation last week revealed, based on an analysis of 160,000 intercepted communications, 90 percent of account holders in the intercepted communications are not targets, and over half of communications belong to US persons.

In other words, Massie-Lofgren simply says if you want to search through the communications of Americans – which you weren't supposed to target anyway – and there's no emergency, get permission from the secret intelligence court.

[The amendment] would make intelligence agencies revert to the sort of pre-9/11 policies that barred them from monitoring calls between a 9/11 hijacker in San Diego and an al Qaeda safe house in Yemen.

Not so. Under Section 702, the government would absolutely be able to collect the information referenced above, and the Massie-Lofgren amendment wouldn't do anything to change that. Indeed, even prior to 9/11, the government could have targeted calls from Yemen. And, they could monitor the calls of individuals domestically provided they could demonstrate to the secret intelligence courts that there was probable cause to believe that the individual in the U.S. was associated with a terrorist organization, foreign government, or foreign-based political organization. In other words, nothing in the proposed amendment would impede the ability of the government to gather intelligence in the case that Rep. Pittenger describes.

…the amendment provides greater protection to terrorists than to criminals by prohibiting the use of available evidence (i.e., terrorist communications) by intelligence agencies.

This couldn't be further from the truth. Under current law – which would remain unchanged by the amendment – the government can collect the phone and internet records of millions of Americans with no individual suspicion; collect communications to, from, or about a target abroad; or get a warrant from the secret intelligence court to monitor a suspected terrorist in the United States.

These standards are far lower than the standards under criminal law, where courts have generally held that the government must obtain a probable cause warrant before searching your cell phone, monitoring your computer, or obtaining other records.

U.S. intelligence agencies are already under strict oversight by Congress, the president and the judicial system, and are prohibited from targeting the communications of American citizens without first obtaining a court order on a case-by-case basis.

Once again, Pittenger's wrong. If the Snowden revelations have taught us anything, it is that key oversight bodies were caught completely off guard by the breadth of surveillance being conducted by our government. Even Sen. Dianne Feinstein (D-Calif.), head of the Senate Intelligence Committee, says she was unaware of some of our foreign surveillance activities. Moreover, just last week, the Privacy and Civil Liberties Oversight Board claimed to be unable to assess the number of U.S. persons monitored under section 702 – information that was revealed one week later in a Washington Post investigation.

As those disclosures revealed, the government engaged in nationwide collection of phone and internet metadata with no case-by-case consideration. In addition, the content of millions of American communications continue to be collected merely because they may be in contact with a target abroad, a determination that is not subject to individualized court review.

So, while Rep. Pittenger calls the Massie-Lofgren amendment a "mistake," the only mistakes appear to be in his own op-ed.

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Guantanámo Judge to Prosecution: Turn Over the Torture Evidence

July 14th, 2014 No Comments   Posted in ACLU Nationwide
By Marcellene Hearn, Senior Staff Attorney, ACLU National Security Project

Last month, a military judge dealt a significant blow to U.S. prosecutors' efforts to suppress torture evidence in the Guantanámo military commissions.

In a ruling in the U.S.S. Cole case, unsealed last week, Judge James Pohl told prosecutors they must hand over CIA black site information to the defense attorneys of Abd al-Rahim Hussayn al-Nashiri. Back in April, Judge Pohl similarly ordered the prosecution to give extensive information to Mr. al-Nashiri's lawyers about his "4-year odyssey" through the CIA's rendition and torture program. In the new ruling, Judge Pohl confirmed the core of the earlier order and issued important findings that will reverberate not only in Mr. al-Nashiri's case but also in the 9/11 case, where one of the five defendants has already asked for similar information.

Judge Pohl found that Mr. al-Nashiri was subjected to "enhanced interrogation techniques" – the government's euphemism for torture and cruel treatment, such as waterboarding and stress positions. More importantly, he ruled that information about that abuse is relevant and helpful to the defense. In particular, it will be relevant at sentencing because Mr. al-Nashiri faces the death penalty. His lawyers have said they will argue that he cannot be executed because he was tortured by the CIA – an argument that 9/11 defense lawyers will also likely make for their own clients.

Judge Pohl also said that the use of torture techniques will impact whether any statements Mr. al-Nashiri made afterwards are too tainted to be used at trial. Under the military commissions rules, the prosecution must convince the judge that the statements were "voluntarily given" in order to use them. The prosecution has already indicated that it will seek to use statements Mr. al-Nashiri made to the FBI after he arrived at Guantánamo. But with the new ruling, the prosecution will be required to turn over the information the defense says it needs to argue that these statements were tainted by the CIA's earlier torture and abuse.

Judge Pohl's order requires the prosecution to give the defense lawyers 10 categories of information, including where Mr. al-Nashiri was held, the conditions in each site, whom he interacted with, and how he was rendered from site to site. What's not clear is the extent to which the prosecution will seek to provide summaries or other substitutes for some documents or to redact the names of personnel. According to Mr. al-Nashiri's lawyers, this will be litigated in the coming months. Still, the ruling has definitively established that the information is relevant and helpful to the defense, and any new requests by the prosecution to narrow what it has to turn over will be limited by the ruling.

That's a sea change, although a long-delayed one on a fundamental fair trial right: access to evidence. Judge Pohl has decided to step down from this case to concentrate on the commission trial of the 9/11 defendants. It's now up to his successor to ensure this important decision is properly implemented.

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Abusive Surveillance Is an LGBTQ Rights Issue

July 12th, 2014 No Comments   Posted in ACLU Nationwide
By Ian S. Thompson, ACLU Washington Legislative Office

This piece originally ran at Slate's Outward blog.

Barred from employment with the federal government. Considered mentally ill by the psychiatric profession. Seen as criminals under state laws. Subjected to invasive surveillance and targeting by the FBI.

This hostile backdrop of the "Lavender Scare" in the 1950s gave rise to some of the earliest organized advocacy efforts on behalf of LGBTQ equality.

J. Edgar Hoover's FBI and its "Sex Deviate" program worked feverishly to ruin the lives of untold numbers of gay men and lesbians and to intimidate members of groups like the Mattachine Society, which dared to agitate for the basic dignity of gay people.

A half-century later, this history has not been lost on the nation's leading LGBTQ equality organizations, which yesterday joined allies in the civil liberties and human rights community in sending a letter to President Barack Obama, raising serious concerns over revelations that the FBI targeted leaders of the Muslim community for yearslong secret surveillance.

The letter notes that this appears to fit a disturbing pattern, both past and present, of the government engaging in discriminatory and abusive surveillance against individuals, based not on what they have done but what they believe or who they are.

We know from history and experience that discriminatory surveillance and profiling by law enforcement agencies has had a disproportionately negative impact on LGBTQ people, particularly people of color. The largest national survey of transgender people to date found 22 percent of respondents who have interacted with police reported experiencing bias-based harassment, with substantially higher rates reported by respondents of color.

Remember the police raids and harassment that led to the eruption of a rebellion at the Stonewall Inn 45 years ago? How about the unlawful sting operations targeting gay and bisexual men and the profiling of transgender women as sex workers from our own decade? The harms of ineffective and un-American profiling—regardless of the communities it is directed against—are of clear concern and importance to the LGBTQ community.

So what can be done? The most important step that the government can take to curb abusive surveillance and profiling is to update existing guidance banning racial profiling by federal law-enforcement agencies. The guidance must be amended to explicitly ban profiling on the basis of religion, sexual orientation, gender identity, or national origin, as well as close existing loopholes that permit all forms of racial profiling in the national security and border contexts.

We must learn from past abuses. Minority communities cannot enjoy the equality and dignity afforded them by the Constitution when they can be routinely subjected to discriminatory profiling for things like "driving while black," "praying while brown," or "walking while trans." As a country, we can and must do better.

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The Kids Aren’t Alright: America Fails to Protect Youth in Crisis

July 11th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Sarah Mehta, Researcher, Human Rights Program, ACLU

Earlier this year, I sat in an immigration office in Nogales, Mexico, surrounded by children who had just been deported from the United States. All of the children I spoke with, ranging in age from 11 to 17 years old, traveled to the United States alone before U.S. Border Patrol agents arrested them. They spoke of being cold, hungry, and afraid while in American detention cells.

They were told to sign a form so they could be released, but none knew what it was. Jesus, a 16-year-old Mexican child, said, "They just put [the form] in our face and said ‘sign.' They wouldn't give us any information." The kids seemed stunned and still terrified, but they had already lost their chance to be heard in the United States.

A 2008 law, the William Wilberforce Trafficking Victims Protection Reauthorization Act, provides that an unaccompanied Mexican child can only be repatriated to Mexico if she is not in danger there and has the capacity to choose to return. Otherwise, she must at least be given a hearing before a judge. In practice, however, the majority of Mexican children arriving alone are deported from the United States, often without anyone bothering to determine (as required by law) if turning them away would place them in serious danger. These screenings are the sole safeguard for many kids seeking help, but too often they don't happen at all.

Now some in Washington are suggesting that we expand this process to include unaccompanied kids fleeing violence in Central America – the same failed procedures that too often place Mexican children back into harm's way. But this would condemn even more children to danger.

The UNHCR interviewed 102 unaccompanied Mexican children and found that 64 percent had potential international protection needs, based, for example, on gang or cartel violence. According to a recent Refugees International report, violent activities in Mexico are at "their highest levels in more than 15 years." Children, in particular, are targets for kidnapping, assassination, extortion, and disappearances. Yet kids fleeing this violence are ignored and ejected at our border.

The ACLU interviewed 13 children in Mexico but only one, Hector, said he was asked any questions about his fear of returning to Mexico or if he wanted to see a judge. Hector recalls: "I asked if there was any benefit and the [officer] said, ‘No, there is probably no benefit. You just crossed through the desert so you're going to be deported.'"

This inadequate system should be reformed to better protect kids, not expanded to deny more kids their rights.

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New Court Orders Signal More Drone Documents Are on the Way

July 11th, 2014 No Comments   Posted in ACLU Nationwide
By Brett Max Kaufman, Legal Fellow, ACLU National Security Project

This was originally posted on Just Security.

For more than four years of Freedom of Information Act litigation concerning the government's targeted-killing program, the government managed to avoid releasing a single document in response to requests filed by the American Civil Liberties Union and reporters for the New York Times. That changed with a federal appeals court's release, just more than two weeks ago, of the July 2010 Office of Legal Counsel memorandum that authorized the killing of Anwar al-Aulaqi, a U.S. citizen. Now, two separate rulings issued this week in the same case—New York Times Co. v. Department of Justice—make clear that additional releases of information are likely to be on the way. Together, the two court orders mean that the district court will proceed almost immediately to evaluate and prepare additional OLC memoranda for public release and will, perhaps shortly thereafter, decide whether the government must make public additional documents relating to the legal and factual bases for the government's targeted-killing program.

***

In broad strokes, the Second Circuit's June 23 opinion held that the government had officially acknowledged—and therefore waived its ability to withhold under FOIA—the substance of its legal analysis of the targeted killing of a U.S. citizen; that the CIA has an operational role in the targeted-killing program; and that the killing of al-Aulaqi had taken place in Yemen, with both DOD and CIA involvement. As relief, in addition to compelling the disclosure of the July 2010 OLC memorandum, the court ordered the government to release, in part, a previously classified index of responsive documents created by OLC, as well as to submit, in camera to the district court, additional OLC memoranda concerning the targeted-killing program for review (and possible public release) according to the terms of the Second Circuit's waiver analysis.

In the context of a case in which the government has sought delay after delay for the last four years, the two court orders issued this week are a welcome sign that the public might see the fruits of the Second Circuit's ordered relief sooner rather than later.

First, early this week, the government asked the district court to hold off on the Second Circuit's order that the district court review in camera the additional OLC memoranda. (The Second Circuit had remanded this aspect of its ordered relief to the district court in a June 26 order.) The government suggested that rather than proceed directly to the district court's review, the parties should engage in more extensive summary-judgment briefing concerning the additional memoranda. The ACLU and the Times opposed that request, citing the clear instructions of the Second Circuit with respect to the grounds for the government's waiver and the process the appeals court expected the litigation to take going forward on remand. On Wednesday, Judge McMahon of the Southern District of New York rejected the government's proposal:

I agree with the ACLU. . . .

This court will not be entertaining arguments about the applicability of FOIA exemptions to the legal memoranda that the Government must produce before complying with the [Second Circuit's partial] mandate. Instead, it will follow the mandate to the letter: I will analyze the legal memoranda that were not previously produced (either to this court or to the Second Circuit) to see if the Government has waived its right to invoke any FOIA exemptions. I will do that before anything else, and I will do it on the schedule I set.

The court went on to address the government's insistence that it should be given time to conduct a careful inter-agency review of the memoranda before submitting the memoranda in camera to the court:

There is no need to conduct any ‘careful review,' let alone any ‘inter-agency review' before producing the documents in accordance with the mandate. The Circuit's order that they be produced for in camera inspection is clear and admits of no argument or exception. Frankly, the Government's bald assertion, in its letter of July 7, 2014, that it gets to decide ‘whether any of those documents, or particular portions thereof, fall within the scope of the waiver found by the Second Circuit' would be offensive if it were not so laughable. The Second Circuit directed this court to make that determination, in light of the rulings it has made. And so I shall.

Judge McMahon gave the government until August 15 to comply with her order.

Second, yesterday, the Second Circuit dispensed with what remained of the petition for rehearing filed by the government in the wake of the court's June 23 opinion. The government had sought rehearing in the Second Circuit on two grounds. In a brief order issued alongside its June 23 opinion, the court granted in part the first half of the government's petition, which sought additional redactions to the July 2010 OLC memorandum. Yesterday, the Second Circuit resolved the second half of the government's petition—a request that the court withdraw its order respecting the classified index of responsive OLC documents—by largely denying the government additional relief and sending the case back to the district court for litigation concerning documents responsive to the plaintiffs' requests.

Yesterday's order requires the government to release the Vaughn index, which contains descriptions and titles of documents responsive to the plaintiffs' requests—though the court did agree to redact various entries on the list based on the government's arguments about specific information whose continued withholding the court deemed justified. In its opinion, the Second Circuit rejected several of the government's arguments as too broad, and too late, to warrant relief:

[T]he Government contends that the titles and descriptions of ‘other' listings [on the Vaughn index] should not be disclosed. The Government has now had three opportunities to claims justified exceptions to the Vaughn index disclosures—first, in its brief on the merits, second, in the pending petition for rehearing, and third, in its response to the Court's ex parte letter of June 10, submitting for in camera review the Court's proposed Revised Opinion. It is far too late in the day to fail to identify by specific numbers the ‘other' listings. The Government's claim that ‘space constraints' in the rehearing petition preclude the requisite specificity is without merit. Any additional numbers could have been included in one or two lines of type in the blank bottom one-third of the last page of the petition.

Additionally, the Second Circuit ordered the creation of Vaughn indices by both DOD and the CIA. Further—and perhaps significantly—the Second Circuit panel retained jurisdiction over ‘[a]ny subsequent appeal following remand . . . in the interests of judicial economy.'

***

Taken together, this week's two orders from the Second Circuit panel and Judge McMahon mean that the public might finally start to learn—from official government documents that speak for themselves, rather than selective and partial public disclosures—crucial, unknown facts about the government's targeted-killing program. (Just Security's Ryan Goodman detailed some of these facts in a recent post.) Indeed, the Second Circuit's June 23 opinion and the two orders this week are sure to reverberate even more broadly than in this particular case: In a separate FOIA action brought by the ACLU four years ago in Washington, D.C.—ACLU v. CIA—the ACLU is seeking a different set of drone-related documents that includes additional legal analysis concerning both U.S. citizens and foreigners, factual information relating to specific strikes, and information about casualties (including of civilian bystanders) caused by the program. The Second Circuit's analysis in N.Y. Times Co.—together with the D.C. Circuit's own strong opinion, issued last year, rejecting the CIA's Glomar response in ACLU v. CIA—will surely have significant implications for the latter case as it moves forward on remand in the D.C. district court.

The release of this information is long overdue—but this week's orders are encouraging news, and they might eventually be seen as the turning of the tide with respect to the government's long-promised but long-delayed transparency about its targeted-killing program.

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How Riley v. California Impacts Texas

July 11th, 2014 No Comments   Posted in Privacy and Technology
by Matt Simpson, Policy Strategist, ACLU of Texas

In Riley v. California, the U.S. Supreme Court held that the police generally may not, without a warrant, search digital information on a cell phone seized following arrest. The Court reasoned that cell phones are different from other kinds of things people carry on their persons. Your cell phone is like a detailed diary that can reveal highly personal information going back years. It makes sense, that the Court concluded, to give cell phones extra protection by requiring a warrant. The case got us thinking about privacy protections generally. So what’s the law here in Texas?

Last legislative session in Texas, over 100 members of the House signed on as co-authors or co-sponsors to legislation requiring law enforcement officers to get a search warrant prior to accessing location data from your cell phone company. Currently, law enforcement requests this personal information via a secret subpoena process. Location data can reveal what church you attend, what political and social groups you belong to, if you are married or having an affair, what bars you frequent, and many other personal details. In many ways, Texas legislators were grappling with the same issues the Supreme Court dealt with in Riley. Because so much data is collected and stored by wireless devices and other electronics, our policymakers are faced with important questions about how to update the law to protect our privacy and 4th amendment rights. Here are the 4 things you should know about electronic privacy in Texas:

1. Texas has not yet passed protections for your cell phone location data.


The bill from last session stalled at the end of session.

2. However, our state passed important protections for your email in an amendment to another bill.


The amendment requires a search warrant for government access to
stored communications.
.

3. In the upcoming legislative session, the ACLU of Texas as part of the Texas Electronic Privacy Coalition will again advocate for warrant protections for your location information.


We will also advocate for regulation of automatic license plate readers and Stingray devices that collect cell phone location data via a dummy cell tower.

4. We can have Texas solutions to privacy problems instead of waiting for the federal government to act.


When it comes to updating privacy protections, we have every opportunity to be ahead of the game. Important updates to state law can work in concert with today’s Supreme Court opinion and federal efforts to curtail NSA spying via the USA Freedom Act. Texans want a government that does not spy on it’s residents. Let’s lead the way in updating our laws to ensure our privacy is protected and the 4th amendment remains a living, breathing protection for us all.


How the NSA Got Away with Spying on American–Muslim Civil Rights Activists

July 11th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Alex Abdo, Staff Attorney, ACLU National Security Project

An article published by The Intercept this week revealed that the government has conducted surveillance of several prominent American Muslims—including a former official in the Department of Homeland Security, a professor at Rutgers University, and the executive director of the largest Muslim civil rights organization in the country.

The surveillance—apparently conducted under the Foreign Intelligence Surveillance Act (FISA)—is troubling for many reasons. It is also a reminder that even targeted surveillance authorities like FISA can be abused.

(Read our first reaction to The Intercept story here.)

Ordinarily, we rely upon checks and balances to prevent lawful powers from being put to illegal ends. But with surveillance conducted in the name of national security, we have for far too long given the government a free pass on the most important of safeguards: the right to “notice”—which entitles surveillance victims inside the country to learn, at some point, about the government’s monitoring of them.

Without notice, the government’s surveillance activities rarely get challenged, and without the prospect of pushback, those powers are all too likely to be misused.

Imagine if the NSA had known it would have to at some point notify the head of a large civil rights organization that the government had monitored his emails. Would the NSA have initiated the surveillance?

The Foreign Intelligence Surveillance Act

Typically, when the government wants to monitor the communications of someone inside the United States, it must obtain a warrant from a court based upon probable cause to believe that the individual has committed or is about to commit a crime.

What’s more, if your communications are monitored in this way, you are generally entitled to learn about it—if not right away, then at least once the need for secrecy has subsided. In the language of the law, you are entitled to “notice.” This is generally true even if you are not the intended target.

In the 1970s, however, Congress enacted FISA, which carved out an exception to both of these constitutional rules for cases in which the government is trying to gather “foreign intelligence information.”

FISA permits the government to obtain a surveillance order from a secretive court—known as the Foreign Intelligence Surveillance Court (FISC)—if it can demonstrate probable cause to believe that its target is “an agent of a foreign power.”

The definition of “an agent of a foreign power” is somewhat complicated, and it is different for U.S. citizens or legal residents than it is for foreigners abroad. Roughly speaking, though, it refers to individuals working at the behest of foreign powers, which are broadly defined to include foreign governments, terrorist groups, and “foreign-based political organizations.” A foreign-based political organization could be anything from the Muslim Brotherhood to perhaps even Amnesty International.

For U.S. citizens or residents to qualify as agents of a foreign power, there must be some tie to criminal activity, but that requirement is lower than probable cause, which is the traditional standard the government must satisfy before spying on Americans.

Why notice matters

As mentioned above, FISA surveillance differs from traditional law-enforcement wiretaps in another significant way: The government does not have to give you notice of FISA surveillance unless it intends to use the fruits of the surveillance against you.

There is a long tradition in our constitutional system of requiring the government to notify you when it has searched your house or wiretapped your phone calls. Notice can sometimes be delayed—to protect an ongoing investigation, for example—but it has always been required at some point, because notice is essential to accountability.

If the government illegally monitors your calls, there must be a mechanism for accountability. Otherwise the government has little incentive to resist its impulse—understandable as it may be—to do everything possible to advance its investigations. It will have little incentive to avoid the kinds of abuses that were common in the 1960s and 1970s, including the monitoring of civil rights groups and activists for political purposes.

How can we trust that the surveillance was proper if the victim of it never has a chance to challenge the government’s case? If we have learned anything from the Snowden files, it is that secret rulings on our constitutional rights generally do not produce results we should trust.

Meaningful transparency is essential to our system of checks and balances. And when it comes to surveillance inside the country, one of the most important forms of transparency is notice—so that those affected by government overreach can push back when necessary.

N.B.: The government apparently claims that it did not have a FISA order targeting one of the men profiled in The Intercept’s story. It is possible, for example, that the individual was targeted without a warrant under the Bush Administration’s warrantless wiretapping programs. Even if so, the rules concerning notice would have been the same as under FISA. That is, no notice would have been provided.


An FBI Counterterrorism Agent Tracked Me Down Because I Took a Picture of This

July 11th, 2014 No Comments   Posted in ACLU Nationwide
By James Prigoff

This is a statement from one of the plaintiffs speaking at Thursday's press conference announcing the ACLU's lawsuit challenging the government's controversial Suspicious Activity Reporting program.

Good morning. My name is James Prigoff. I am 86 years old and a retired senior corporate executive, having been president of a Levi Strauss division and previously the senior vice president of the Sara Lee Corporation in Chicago. I am also a professional photographer – in fact, I have been a photographer for most of my life. My specialty is photographing murals, graffiti art, and other community public art. I am the co-author of three books utilizing my photographs, one of which, Spraycan Art, has sold over 200,000 copies. My photographs appear in countless other publications and my photography has been exhibited at the Smithsonian in Washington and in many other galleries. I have lectured on photography and public art in museums, universities, and venues worldwide.

I have never had an experience like I had when attempting to photograph the "Rainbow Swash" outside Boston in 2004. Let me explain.

The Rainbow Swash is an iconic piece of public art near Boston painted on the circumference of a 140-foot high liquefied natural gas storage tank in 1971 and repainted in 1992 at an adjacent site. It is actually one of the largest copyrighted pieces of art in the world. The original artist was Korita Kent.

I went to Dorchester, Mass., to photograph it, but before I could take a picture, I was confronted by two security guards who came through their gate and told me I could not because the tank was on private property. I pointed out that I, being well outside the fenced area, was not on private property – but they insisted I leave. If one goes to Wikipedia there are number of excellent close-up shots for the entire world to see.

A few months later, I found a business card on the front door of my home in Sacramento from Agent A. Ayaz of the Joint Terrorism Task Force, asking me to call him. One of my neighbors, an elderly woman, told me that two men wearing suits had come to her door to ask her about me, her neighbor.

When I called Agent Ayaz, he asked if I had been in Boston recently. At that moment I realized that the security guards at the Rainbow Swash site must have taken down the rental car license plate number and reported me to a law enforcement agency. I never gave the guards any information about myself, so I must have been traced across country via my rental car record.

So, consider this: A professional photographer taking a photo of a well-known Boston landmark is now considered to be engaged in suspicious terrorist activity?

I lived through the McCarthy era, so I know how false accusations, surveillance, and keeping files on innocent people can destroy their careers and lives. I am deeply troubled that the SAR program may be recreating that same climate of false accusation and fear today.

Photography is an important part of my life, and I plan to keep photographing public art and public places that contain WPA murals and other architectural sites – as I have been doing for 69 years. Why have my artistic pursuits landed me in a national database potentially linking me to "terrorist" activities? There is no reason for it. This program must be stopped.

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You Heard the Court, Gov. Brewer: Give the DREAMers Their Licenses

July 11th, 2014 No Comments   Posted in ACLU Nationwide
By Orion Danjuma, Skadden Fellow

Until now, thousands of young Arizonans have been prevented from getting jobs, going to school, or even attending to sick children – all thanks to Gov. Jan Brewer's ban on granting them driver's licenses.

That situation is set to change soon. A federal appeals court issued a stinging rebuke to the governor in a decision this week. According to the judges, denying these young immigrants the ability to drive harms them irreparably and likely violates their constitutional rights.

The suit was brought by the ACLU and other civil rights groups on behalf of DREAMers – immigrants who have grown up in the United States without documentation and consider this country their home. In 2012, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program, which grants DREAMers federal permission to work and to remain in the country. In keeping with her anti-immigrant stance, Gov. Brewer lashed out immediately. She issued an executive order banning Arizona's DACA recipients from getting driver's licenses and called them "illegal people" who shouldn't qualify for a state-issued ID.

One of those people is 24-year-old Korina Iribe, who came to this country at age five. Her DACA status has finally enabled her to afford community college. But she says that without a driver's license she can't rent an apartment, apply for a bank account, or even prove her identity. "To me Governor Brewer's order was an attempt to dehumanize and strip DREAMers of our identities," Korina says. "She wanted us to be treated as second class citizens, and she didn't care at what expense."

In a state where the overwhelming majority of residents drive and only two percent take public transportation, many young Arizonans have little choice but to drive illegally.

Take the case of one of the people in the lawsuit — a single mother who has a five-year-old son with special needs. In order to provide the specialized care he needs, she drives without a license to get him across town to school and to medical appointments. Every time she does so, she endures the agonizing fear that they will be stopped by police and her car impounded. She has a temporary job without health benefits. But when her supervisors recommended her for a permanent position with full benefits, she couldn't apply because it required a driver's license.

Until Arizona follows the court's order, it remains the only state along with Nebraska that denies driver's licenses to DACA recipients. The federal government, the courts, and 48 other states all agree: DACA grantees are legally present in the United States and should be able to work and to provide for their families.

Meanwhile, DREAMers like Korina Iribe are already celebrating. "I am more than ecstatic," she says. "I will finally be able to fill out applications that ask for my Arizona driver's license number, and most importantly, I will be recognized as an Arizonan for the first time."

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