Month: July 2016

What technological wonders will the next 30 years bring? Answering that question is the task that Wired senior maverick and co-founding editor Kevin Kelly sets himself in his new book The Inevitable. In his visionary What Technology Wants, Kelly previously argued that technology is becoming in some sense autonomous, and that autonomous technology, or the “technium” in his terminology, “is now as great a force in our world as nature.” But you don’t have to buy into Kelly’s semi-teleological explanations of the trajectory of the modern technological project to recognize that he does a great deal of deep thinking about how technology evolves, and the ideas in his new work about what’s to come are also well worth pondering.

View this article.

Remy channels his inner Toby Keith to send terrorists a message.

Watch above or click the link below for lyrics, links, downloadable versions and more.

View this article.

Black Lives Matter’s Campaign Zero project has released a new analysis and interactive data visualization project based on information obtained through Freedom of Information Act (FOIA) requests into the police union contracts of 81 of the U.S.’ 100 largest cities, as well as the “police bill of rights” enumerated in the 14 states where such laws exist.

The authors of the report wrote, “Working with legal experts, advocates, and academics with an expertise in this area, six major areas are identified wherein these contracts and bills of rights contribute to making it more difficult to hold police accountable for misconduct.”

Among the study’s findings:

25 cities and 4 states disqualify certain complaints from being investigated or resulting in discipline, for example if they are submitted too many days after an incident occurs or if an investigation takes too long to complete.

As an example, the Columbus PD requires a written complaint to the city within 60 days of any alleged misconduct or the complaint will not be investigated.

Regarding police interrogations:

50 cities and 13 states restrict interrogations by limiting how long an officer can be interrogated, who can interrogate them, the types of questions that can be asked, and when an interrogation can take place.

The study cites Louisiana’s Police Bill of Rights permitting officers to delay interrogations for up to 30 days. Officers are also often granted access to information prior to interrogations that would be unthinkable for ordinary citizens. For example, the Wichita PD’s union contract allows officers to have “access to the names and addresses of complainants prior to an interrogation,” and Florida’s Police Bill of Rights permits officers to review all evidence (including audio and video) which could be used against them before they are interrogated.

When it comes to disciplining police misconduct, “64 cities and 7 states limit disciplinary consequences for officers, for example preventing an officer’s history of past misconduct from being considered in future cases, and/or limit the capacity of civilian oversight structures or the broader public to hold police accountable.” Additionally, Austin’s police union contract forbids “Civilian Oversight” from exercising subpoena power.

Transparency is stymied by 43 cities and 3 states, which “erase records of misconduct, in some cases erasing records after 2 years or less.” Cleveland’s police union contract requires officers’ “disciplinary actions or penalties” to be “removed after two years from the date the discipline was administered.”

You can read my recent (and at times contentious) interview with Black Lives Matter organizer DeRay McKesson here, as well as other Reason coverage of BLM’s efforts to bring transparency to police use-of-force policies and earlier reports on police union contracts.

Justice Sonia Sotomayor is fast becoming the Supreme Court’s biggest defender of the Fourth Amendment. After examining her record over the past few SCOTUS terms, including the term that just concluded this week, it’s clear that Sotomayor has emerged as a consistent and outspoken voice in favor of broad Fourth Amendment rights. Here’s a brief look at some of Sotomayor’s most notable actions in recent Fourth Amendment cases.

Missouri v. McNeely

At issue in this 2013 dispute is whether the Fourth Amendment stands in the way of the police obtaining a warrantless and nonconsensual blood test from a suspected drunk driver. Writing for the majority, Sotomayor held that the amendment is indeed such a bulwark. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search,” Sotomayor wrote, “the Fourth Amendment mandates that they do so.”

Navarette v. California

In this 2014 case a majority of the Supreme Court said that no Fourth Amendment violation took place when the police conducted a traffic stop and resulting drug bust based solely on information obtained from an anonymous telephone tip. “The Court’s opinion serves up a freedom-destroying cocktail,” Justice Antonin Scalia seethed in dissent. “All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.” That troubling scenario, Scalia wrote, “is not my concept, and I am sure it would not be the Framers’, of a people secure from unreasonable searches and seizures.” Sotomayor signed on to Scalia’s dissent.

Rodriguez v. United States

At issue in this case was whether a police officer “unnecessarily prolonged” an otherwise legal traffic stop when he called for backup in order to walk a drug-sniffing dog around the stopped vehicle. During the January 2015 oral arguments, Justice Department lawyer Ginger Adams insisted that the police are entitled to broad leeway when it comes to determining the amount of time that’s “reasonably required” in that sort of situation. Justice Sotomayor took a decidedly different view. “We can’t keep bending the Fourth Amendment to the resources of law enforcement,” an exasperated Sotomayor lectured Adams. “What you’re proposing,” she told the government lawyer, is an approach that’s “purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.” Three months later Sotomayor joined the majority in voiding the officer’s unconstitutional actions.

Mullenix v. Luna

This case centered on a whether or not a police officer was entitled to qualified immunity after using deadly force to end a high-speed car chase. In a 2015 per curiam opinion, the Supreme Court held that the officer was entitled to qualified immunity. In a lone dissent, Sotomayor faulted her colleagues for “sanctioning a ‘shoot first, think later’ approach to policing [that] renders the protections of the Fourth Amendment hollow.”

Utah v. Strieff

In this 2016 ruling the Supreme Court held that the Constitution does not prohibit law enforcement officials from using evidence that had been obtained as a result of an illegal police stop because it turned out that the man who was illegally stopped happened to be the subject of an outstanding traffic warrant. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants–even if you are doing nothing wrong,” Sotomayor fumed in dissent. “If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” In her view, “the Fourth Amendment should prohibit, not permit, such misconduct” by the police.

Birchfield v. North Dakota

The final case in our list was decided just last week. At issue here was whether warrantless chemical tests for suspected drunk drivers violate the Fourth Amendment. In a divided opinion, the Court held that warrantless blood tests do violate the Constitution but warrantless breath tests do not. Writing separately, Justice Sotomayor insisted that both types of warrantless DUI tests should have been struck down as unconstitutional. “Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver’s alcohol level,” Sotomayor wrote, “the Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case.”

Right around the same time in 2013 Edward Snowden was working to leak information about the federal government’s mass domestic surveillance of Americans, the Associated Press discovered that the Department of Justice had secretly collected months of phone call records of a pack of its reporters, all likely in an attempt to find the source of a leak about a foiled terrorist plot in Yemen.

It’s important to note that this secret investigation was all about trying to find a leaker, not, say, a suspected terrorist. The outrage over the Justice Department’s behavior led to some nominal reforms on how it would use subpoenas to get phone records of media outlets.

But, as The Intercept, points out this week, what happened to the Associated Press is merely one way that the federal government is able to quietly snoop on what the media is up to. The secretive National Security Letter (NSL) can also be used to collect communication data from media outlets. NSLs are orders through which the government demands that data companies or information service companies provide information about the communications of a targeted user. Furthermore, the companies are legally obligated to keep any information about the letters, including having received them at all, secret. The use of these letters expanded significantly after the Sept. 11 attack as a tool to try to track down information about terrorist plots.

The use of the letters has become controversial not just because the government attempts to keep their contents secret for as long as possible—secrecy they’ve finally started easing up on after lawsuits and post-Snowden reforms to surveillance rules. They’re also controversial due to a lack of oversight from the judicial branch. The Department of Justice is in complete control over their use. So how can we be sure they’ll actually be used to fight terrorism and not help perpetuate a war on leakers? The Intercept has been provided an unredacted copy of the classified rules for using NSL letters against journalists or media outlets and found that the FBI and Justice Department call all the shots. And in some cases, the FBI doesn’t even need to go to the Justice Department for authorization to use the letters:

The rules stipulate that obtaining a journalist’s records with a National Security Letter (or NSL) requires the sign-off of the FBI’s general counsel and the executive assistant director of the bureau’s National Security Branch, in addition to the regular chain of approval. Generally speaking, there are a variety of FBI officials, including the agents in charge of field offices, who can sign off that an NSL is “relevant” to a national security investigation.

There is an extra step under the rules if the NSL targets a journalist in order “to identify confidential news media sources.” In that case, the general counsel and the executive assistant director must first consult with the assistant attorney general for the Justice Department’s National Security Division.

But if the NSL is trying to identify a leaker by targeting the records of the potential source, and not the journalist, the Justice Department doesn’t need to be involved.

The guidelines also specify that the extra oversight layers do not apply if the journalist is believed to be a spy or is part of a news organization “associated with a foreign intelligence service” or “otherwise acting on behalf of a foreign power.” Unless, again, the purpose is to identify a leak, in which case, the general counsel and executive assistant director must approve the request.

Recall that during all the arguing over the ethics of Snowden’s leaks, there was plenty of debate from critics about whether Snowden was acting in such a way to benefit foreign governments (regardless of whether that makes any sense). Journalist Glenn Greenwald’s partner David Miranda was detained by the U.K. government briefly and questioned under the country’s Terrorist Act. The government would no doubt insist that these authorizations are in place to help the government track down terrorism, but what we see in practice is significantly different.

And as The Intercept also notes, the Department of Justice’s reforms say they’re not going to go after journalists themselves with subpoenas and prosecution for “newsgathering activities,” but those reforms have nothing to do with the use of NSLs and don’t affect them. (And is of little comfort to somebody turning to the media as a whistleblower in any event).

Also keep in mind that the FBI is also trying to expand what type of information they can get with NSLs to include more email metadata and online browser history. An attempt to get authority passed through the Senate failed just barely last month, but is likely to pass when it returns for another vote.

We do have one slight piece of good news on federal government transparency and the media this week. President Barack Obama signed into law a bill intended to reform the Freedom of Information Act to attempt to make federal agencies more open and responsive to requests and puts a 25 year limit on trying to withhold documents through exemptions. Though, as the Reporters Committee for the Freedom of the Press notes, some of this law is simply codifying what the president ordered via memo when he first took office, and yet his administration has done an absolutely terrible job at complying with FIOA requests.