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April 14, 2006 | AT&T Loses A Customer Over NSA Lawsuit
AT&T has lost at least one customer due to the class action lawsuit filed by the Electronic Frontier Foundation accusing the telecom giant of wiretapping the Internet on behalf of the National Security Agency (NSA).
That customer? Judge Vaughn Walker, the San Francisco District Chief Judge who is assigned to the case.
In an order Walker released today, the judge told the parties that he was an AT&T phone customer when the case was assigned to him, so he switched telecom providers to avoid a conflict of interest. Walker did not say what company he switched to, or if he got a better long distance rate.
Being a former AT&T customer also makes him a potential member of the class suing AT&T, so he foreswore any money he might be entitled to.
Walker is not recusing himself, however, and cited a number of cases supporting his position. He also mentions that if he had to do so, so too would almost every judge in the district since it's highly likely that some member of every judge's family was an AT&T subscriber. Walker is giving both AT&T and the EFF a week to file briefs agreeing or disagreeing (or in AT&T's case, to offer him free conference calling if he comes back into the fold). After that, Walker says he will stat to rule on the flurry of motions filed this week.
Full recusal order here. (.pdf)
Posted by Ryan Singel at 03:55 PM | TrackBack
January 16, 2006 | Hitchens And Bamford Sue Bush Administration! No Really!It was going to be the journalistic equivalent of Cagney and Lacey, but better. Well, better, but with fewer lesbians.
James Bamford, the studious and diligent one who has written books on the NSA, who has a soft spot for conspiracy theoeires was cast as the soul-searching, muckraking honest journalist who just might find out things he doesn't want to know are true..
Christopher Hitchens, the wild one prone to lighting up in elevators and putting whiskey in his oatmeal, would play the bitter, lost journalist who thinks all his colleagues are sellouts and pansies, but he has a soft side and spell checks his byline.
Together the duo would fight injustice, drink and smoke and make fun of editors, and have secret Meet-Ups, IM Department of Agriculture whistleblowers and wage the war on terror and anti-terror (the plan was to alternate weeks) with word processors! Word processors with byline spell checkers, of course.
And their first case?
Here's the shocker -- they don't write anything in the pilot episode. Instead, Bamford hears immediate clicks on the phone when he calls Mossad sources. For his part Hitchens hears clinks in his the highball glass when he calls on his sources.
Both suspect the government is wiretapping them.
So they sign up to have the ACLU sue the government, claiming the government probably eavesdropped on their phone calls (Hitchens vaguely recalls a late night international booty call from some months back, while Bamford claims not to have known that the NSA could intercept his calls to his sources in Israel., No really, he has at least one source there. No really some of his best friends are high level Israeli spooks.).
Too bad reality just scooped me.
No really, it did.
I swear on Echelon, reality bit me.
My blockbuster is in the New York Times. The news section of the NYT.
"There's almost a feeling of déjà vu with this program," said James Bamford, an author and journalist who is one of five individual plaintiffs in the A.C.L.U. lawsuit who say they suspect that the program may have been used to monitor their international communications."It's a return to the bad old days of the N.S.A.," said Mr. Bamford, who has written two widely cited books on the intelligence agency.
Although the program's public disclosure last month has generated speculation that it may have been used to monitor journalists or politicians, no evidence has emerged to support that idea. Bush administration officials point to a secret audit by the Justice Department last year that reviewed a sampling of security agency interceptions involving Americans and that they said found no documented abuses.
[...]
Also named as plaintiffs in the A.C.L.U. lawsuit are the journalist Christopher Hitchens, who has written in support of the wars in Iraq and Afghanistan; ...
Remember this isn't old-school Trotskyite Hitchens; this is the post-9/11 Hitchens.
I guess we should have seen the re-reversal coming after he threw this bomb after the government decided to start confiscating his lighter when he gets on planes ((no I don't know how he lit the fuse after they took away his lighter) and yes, yes, I and You know that wasn't the administration pushing the lighter ban and we know that Michael Moore and Byron Dorgan are to blame but Hitchens doesn't know that and like Blutarsky, he's on a roll so don't interrupt him.)
I guess that while Hitchens made good friends with the Neo-Cons (who are Trotskyites of a sort), they weren't kind enough to give him a get-out-of-surveillance free card.
Now those neo-cons are going to hear from his ACLU lawyer.
All I can say to that is God help the Kurds if they ever even think one mean thing about Hitchens.
Posted by Ryan Singel at 10:09 PM | Comments (1) | TrackBack
December 19, 2005 | Something's Happening HereAnd the technology they are using isn't quite clear.
I'm becoming more and more convinced (like Noah) by little notes being hit by President Bush, Attorney General Alberto Gonzales and the Deputy Director for National Intelligence General Michael Hayden that the extra-legal NSA wiretaps ordered by the president are using some new technology.
Or more likely, extending some NSA technological method that is clearly legal outside the United States to bear on certain international calls originating in the United States.
At today's press conference with Gonzales, Hayden hinted that the end-run around the FISA court was done for reasons beyond just avoiding annoying paperwork:
FISA involves the process -- FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little -- it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.
When asked why the president didn't ask for Congressional authority for this wiretapping, Gonzales said:
We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program.
Terrorists and dictators already know their communications can and will be tapped. But what technology don't they know about that the NSA is using here?
Hayden also hinted today that the wiretaps involved suspicions below the level of probable cause.
And here the key is not so much persistence as it is agility. It's a quicker trigger. It's a subtly softer trigger. And the intrusion into privacy -- the intrusion into privacy is significantly less. It's only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order.
And is the period of time shorter in most cases, because the net starts very wide and then is narrowed as the eavesdropping continues?
And what does that "softer trigger" mean? That the program relies on some standard much lower than probable cause as applied to an individual? Maybe something like probable cause to believe someone from the state of Virginia is calling a terrorist?
So does the executive order turn the NSA's ears, data-mining supercomputers and real time transcription powers on ALL calls leaving the U.S. that are bound for Pakistan, Afghanistan, Iran, Somalia and Iraq?
If that's the case, then that's the equivalent of the Catholic Church revealing that for the past three hundred years, the Vatican hasn't believed in the Pope's infallibility.
Rule number one at the NSA is don't spy on Americans.
Rule number two at the NSA is don't talk about the NSA.
This story broke because some at the NSA broke rule number two because they think that rule number one was broken.
The other possibility, suggested to me by someone with experience with wiretapping, is that the NSA may have compromised a hardware manufacturer -- say Motorola or a satellite phone manufacturer, a telecom carrier or a satellite(s).
In any of those scenarios, the NSA would not have to intercept any signals since they would be diverted at the hardware level to the agency. Such power might also give the agency the ability to conduct man-in-the-middle attacks on encrypted communications.
This is a huge story, so little is known at this point and so all we are left with is speculation.
Update: I'm even more convinced that some new technology is being used here, besides traditional wiretaps, based on a just-released July, 2003 letter from Senator Rockefeller to Vice President Cheney outlining his concerns about the eavesdropping.
Rockefeller says he isn't a lawyer or a "technician" and that he can't make a judgement on the program because he can't consult with his staff.
Wiretaps aren't that complicated to understand.
Also, Rockefeller said his briefing reminded him of the Total Information Awareness project (defunded for purposes of data-mining citizens' records, but being developed using black-budget funds for overseas data-mining).
That makes me think the project involved some large scale mostly-suspicionless scanning of outgoing communications. Then, the NSA would focus in on targets, and discard other numbers and email addresses, after some technological sifting.
Josh Marshall has posted two-page hand-written letter.
Technorati Tags: nsa, fisa, wiretaps
Posted by Ryan Singel at 09:57 AM | Comments (1) | TrackBack
December 18, 2005 | Bush Wiretaps Supremely IllegalWho says Bush's end run around surveillance laws are illegal?
The Supreme Court.
Back in 1972, the Supreme Court took on a case (where President Nixon ordered wiretaps on individuals suspected of plotting to bomb a CIA building) and ruled that the President's power under the Constitution to defend the country from attacks does not give the executive the power to unilaterally order wiretaps. (US v. US District Court, 407 U.S. 29)
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
As I wrote yesterday, this is not a story about the necessity or propriety of the wiretaps, it's about the method used to order the wiretap, a method that shows complete disdain for the principle of checks and balances.
What did the Supreme Court say in 1972 about this very question?
It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357.The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.
And what does such unchecked surveillance power mean for those who dissent from the Government?
History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. […]
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.
But what about President Bush's argument that the secret and warrantless searches were reviewed by top administration officials and a secret court judge?
The independent check upon executive discretion is not satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions.Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.
Supreme Court decisions remain the highest law in this country.
Despite whatever advice President Bush received from his lawyers, it is clear that the NSA wiretaps he ordered were illegal and set a dangerous precedent.
Related posts and stories worth your time:
- The Washington Post's Barton Gellman's roundup of recent revelations of government spying.
- The Washington Post's Dana Milbank on Congress finally realizing they should actually be watchdogs.
- The L.A. Times's David G. Savage and Bob Drogin on the legality of the wiretaps.
Technorati Tags: NSA, SupremeCourt, Wiretaps, Surveillance, executivepower
Posted by Ryan Singel at 01:32 PM | Comments (1) | TrackBack
December 17, 2005 | It's Not The Crime; It's the RationalePresident Bush admitted today that he circumvented United States law and repeatedly ordered the National Security Agency to wiretap suspected Al Qaeda operatives in the United States. His rationale for the order was that the wiretaps needed to be installed instantly, and he said that the New York Times story that revealed his illegal order damaged national security.
The wiretaps themselves should not be in question. No one, besides Ramsey Clark and his ANSWER minions, would argue that phone numbers and email addresses found on the computer of a captured Al Qaeda member should not be wiretapped. Immediately.
In fact, that's what the law allows.
The government has the power to start such wiretaps immediately, so long as they promptly notify a special court judge and send paperwork to that court with 3 days. All they need to prove is probable cause that the person, whether they be a foreigner or an American citizen, is likely a member of a terrorist group or a foreign agent. That court is highly deferential, and just last year, authorized more than 1,700 wiretaps.
That's why this story is not about the wiretaps, so long as one presumes the administration is working in good faith and not using the wiretaps to monitor American citizens exercising their legal rights. Despite this week's story about the Pentagon monitoring anti-war Quakers, I'm still inclined to believe that the targets are legitimate.
The story is about executive privilege and this administration's belief that its anti-terrorism actions cannot not be curtailed by Congress or the Courts.
Bush is at best misleading the country and at worst, lying, when he argued today that this story undermines national security.
Every gunrunner, would-be terrorist, two-dinar dictator and money launderer knows that the NSA has awesome capabilities and that their emails and phones can and will be tapped.
As Julian Sanchez points out today, no terrorist could possibly care how the wiretap was ordered:
So what kind of plausible difference to our national security could it make if terror suspects who know they might be targeted for eavesdropping with a warrant learn they might be targeted without one?
Bush ordered the wiretaps in violation of the wiretap laws, which explicitly say that any wiretapping in the United States must go through the courts, whether those be traditional criminal wiretaps or the ones designed for spies and terrorists.
His rationale is that he has the power to ignore and supersede the law by fiat, since Congress authorized the use of force against those who committed or abetted the September 11 bombings.
Bush says that the policy is reviewed by Justice Department and NSA lawyers and officials. That may be true, but that's not what the law says should happen. Those are just rules his administration made up.
In fact, under this interpretation of his power -- unlimited, unreviewable power in regards to fighting terrorism --, the McCain amendment prohibiting torture has no meaning. Bush would be above that law. In fact, under this conception of the presidency, there's no need to renew the Patriot Act for terrorism investigations, since he can just issue the regulations himself.
But there's a price to be paid for writing your own rules in order to sidestep paperwork after the fact and the slightest of judicial oversight.
The court that authorizes wiretaps told the Administration that information found in these illegal wiretaps can't be used to get new, legal wiretaps.
Traditionally, counter-terrorism operatives who capture the name and phone number of a yet-unknown accomplice can then go back to the court and use that information to build a chain of legal wiretaps.
But with these extra-legal wiretaps, those agents would not be allowed to do so, because the secret FISA court says that illegal evidence can't be used, according to the New York Times. But the administration is willing to cause problems down the investigative path and break the law SIMPLY to prove the point that it is above filling out forms and having to prove to sympathetic judges that they aren't breaking the law.
That arrogant flouting of the law and the basic tenets of our democracy -- not the leaks from concerned government officials -- are what is dangerous in this story.
For more on how the secrecy argument being floated by the President and the right half of the blogosphere is simply, and historically, wrong, check Adam Shostack's post, Government Secrecy and Wiretaps.
Update: Also, seems that Noah and I are having the same thoughts, but on opposite coasts...
Posted by Ryan Singel at 05:04 PM | Comments (2) | TrackBack
December 11, 2005 | Hacks And Bloggers's Epics on Gilmore EpicKevin Drum at the Washington Monthly picked up on the Gilmore Epic, and has prompted me to post this post-mortem media round-up on Gilmore's hearing on Thursday.
My take, published on Thursday in Wired News:
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Thursday on tech entrepreneur and internet freedom fighter John Gilmore's challenge to a secret government order forcing airline passengers to show identification or submit to a pat-down search.The hearing pitted a matter-of-fact government attorney against Gilmore's impassioned, podium-banging lawyer, James Harrison, in a closely watched legal battle over government secrecy and antiterrorism measures that has federal officials defending a rule whose existence they will not admit in open court.
Gilmore contends that the policy violates his right to travel and that the additional search of those who don't show ID is a form of punishment.
"When a cop asks you for your ID on the street, you are free to walk away. There is no penalty," Gilmore said outside the courthouse. "If you refuse to show ID at an airport, you can't fly."
In court, Justice Department attorney Joshua Waldman countered that the identification requirement, if it existed, was a minimal intrusion and enhanced airline security.
"The requirement promotes the right to travel by protecting everyone's safety," Waldman said.
The arguments Thursday focused on three issues: whether the identification or search requirement violates the Fourth Amendment, whether the government has to show the public and the courts the text of rules that affect the public, and which court has jurisdiction over constitutional challenges to such rules.
[...]
Appellate Judge Steven Trott repeatedly questioned Harrison about whether asking for identification really implicated the Fourth Amendment's ban on unreasonable searches and seizures, calling it Harrison's "weakest argument."
But Trott also questioned the government's case, asking Waldman why the United States was "playing cat and mouse" with the courts by alternatively referring to the identification-or-search requirement as a policy, a rule and a law-enforcement technique.
The presiding judge, Richard A. Paez, probed Waldman about the government's defense of a rule it refuses, in Waldman's words, "to confirm or deny the existence of."
"Doesn’t that strike you as a bit odd?" Paez asked.
Judge Thomas G. Nelson also questioned the government's secrecy.
"How do we know this is an order?" Nelson asked.
Paul Elias, an Associated Press reporter who forgot his driver's license at home and talked his way into the courthouse with a business card and an ATM card with his picture on it, led with this:
A wealthy Libertarian who is fighting a requirement that airline passengers show identification before traveling asked a federal appeals court Thursday to broaden the scope of his battle to cover other forms of commercial transportation.
and noted:
Gilmore arrived in court Thursday wearing Birkenstock sandals and a small pin on his lapel that read "Suspected Terrorist."That same pin prompted a British Airways pilot to kick Gilmore off a London-bound flight in 2003.
Oakland Tribune's premier hack (that's not pejorative) Sean Holstege filed this:
Millionaire John Gilmore didn't show photo identification to walk into a federal courthouse Thursday, where his attorney tried to persuade a panel of appellate judges that nobody should need ID to board an airplane.Sacramento attorney James Harrison made special arrangements to get his client past the checkpoint, where every other member of the public was asked to show ID. But no such arrangements were possible when Gilmore tried to board a Southwest Airlines flight at Oakland International Airport on July 4, 2002.
News.com's Declan McCullagh piped in with his usual fine prose style.
A federal appeals court wrestled Thursday with what seems to be a straightforward question: Can Americans be required to show ID on a commercial airline flight?John Gilmore, an early employee of Sun Microsystems and co-founder of the Electronic Frontier Foundation, says the answer should be "no." The libertarian millionaire sued the Bush administration, which claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it
My friend Justin Scheck of The Recorder, a West Coast law paper, filed this feature, with some fine coloring:
Bespectacled, bearded and Birkenstocked (with Dr. Seuss socks), John Gilmore cut an appropriately iconoclastic profile Thursday as the centerpiece of a notebook-wielding gaggle in front of the 9th U.S. Circuit Court of Appeals.Gilmore, a tech-boom multimillionaire who can't fly on airplanes due to his refusal to show identification at airports, is a star -- and major funder -- of the electronic privacy movement.
He's been at the center of an increasingly strange piece of litigation for the past three years since he sued the government, claiming that the requirement to show ID before boarding a plane is unconstitutional.
Complicating matters -- and nourishing conspiracy theories -- is the government's ongoing refusal to disclose what, if any, such requirement is on the books.
(Note to Harrison, telling a legal reporter that the judges you just tried to persuade were "a terrible panel" might not be a great idea.)
Tim Cavanaugh of Reason filed this factually-challenged bit for Reason's blog.
Most of today's arguments turned on various points tangential to the central argument. In particular, there's a jurisdictional question about whether the Ninth Circuit should be hearing the case. Both sides argued that the case should be remanded to a "lower court" (presumably the Northern District of California, which dismissed the case last year), though Department of Justice lawyer Joshua Waldman held out the option of the Ninth Circuit's deciding the case on the merits. The interesting part is that the jurisdiction brouhaha arises from the question of who is actually ordering the ID check. The Transportation Security Administration claims it gave an order to demand IDs to the airlines on the authority of Congress, but Congress has not actually issued any law requiring ID checks. Gilmore's lawyer, James P. Harrison, argues that requirement hasn't been made public and is effectively a secret law. Waldman counters that there are many cases where we accept a "legal fiction" that something is in the U.S. Code, that ID requirements are prominently posted at airports, on the TSA website, etc., and that everybody in the courtroom (except Gilmore, who was signed in by his lawyer) had to show ID to enter the building.[long section on the shortcomings of Gilmore's lawyer removed for space considerations]
On the courthouse steps after the hearing, one of the pro-Gilmore cranks (whose number I would estimate at about a score) spelled out the distinction Gilmore's attorney did not: That the Hiibel decision made a distinction between having to identify yourself verbally and having to produce a piece of identification, which constitutes a search. (I don't vouch for the details of any of this stuff, just that he seemed to have an argument.)
(Just so you know the jurisdiction fight has nothing to do about who is ordering the ID check, it's about a law that allows challenges to administrative orders to only go to an appeals court. Gilmore wants the case sent back down to a district court for a full trial, but contrary to Cavanaugh's assertion, the government does not want that at all. They want the Ninth to dismiss the case, but if the Ninth does think Gilmore has a case, they want the Ninth to decide it. They don't want a full trial -- they think the law explicitly says that can't happen. Waldman's point about the "legal fiction" was an ironic point since courts assume that every one should know a rule if it is in the federal code, even though its ridiculous to assume most citizens read the federal code. The irony here is that everyone knows you have to show i.d. at the airport, even though its not in the federal code, so Gilmore can't say he didn't know about the rule. And finally, the pro-Gilmore 'crank' Cavanaugh mentions is none other than Edward Hasbrouck, who knows more about the minutiae of airline travel laws and airline databases than just about anyone on this big, big planet.)
Here's an excerpt from Hasbrouck's wordy, but perceptive and accurate, take on Gilmore's hearing:
The good news, as I read the tea leaves of the argument, is that it appears that John Gilmore and the cause he has taken up will eventually get their day in court, and may get it somewhat sooner rather than later: the 3 judges seemed inclined, if they rule that the case should first have been filed with them instead of with the district court, to order it transferred to their jurisdiction, rather than ordering it dismissed and making Mr. Gilmore start over from scratch in the circuit court.[...]
I don't know if Mr. Gilmore was verbally asked, or stated, his name -- so far as I can tell, the record is silent on that point. But by presenting himself for transportation, and presenting those tickets as entitling him to passage, he was implicitly making a legally binding self-declaration as to his name and identity.
This case is not, therefore, about anonymous travel, an interesting but irrelevant side issue that was raised in this morning's argument. It's not about whether Mr. Gilmore could be asked for ID (he was, in effect, when he was asked to present a name-identified non-transferable ticket) or whether Mr. Gilmore could be sanctioned for failing to identify himself (he did identify himself).
The issue in this case is specifically about the legality of the search embodied in the demand for tangible evidence of identity, and the lack of due process embodied in the secrecy of the "rule" requiring production of ID credentials (whose existence, even today, government counsel would "neither confirm nor deny") and the lack of any publicly-disclosed criteria as to what evidence of identity is sufficient, or how its sufficiency is to be determined.
By the by, this decision is looking to be very interesting.
The panel seems not very happy with the secret nature of the rule, but simultaneously doesn't seem persuaded by the argument that the rule is unconstitutional.
But their animosity for the former may move them for a more full constitutional challenge. I highly suspect the panel will take on this case and ask for more briefings or send it in front of the full panel of the Ninth. This stuff is way too interesting for these judges to give it back to a district court.
The other interesting angle is that if Gilmore gets the court to decide that the search part of the identification -or-search policy is an unconstitutional administrative punishment, then he also brings down the no-fly and selectee lists as unconstitutional administrative punishments..
Posted by Ryan Singel at 11:00 PM | Comments (1) | TrackBack
December 08, 2005 | The Epic of Gilmore
Longtime Internet civil liberties activist and Electronic Frontier Foundation co-founder, John Gilmore, will have his day in court Thursday to argue against the constitutionality of a secret rule compelling airline passengers to show identification before boarding an airplane.
From my Wired News story from Wednesday:
Although John Gilmore lives just five blocks from San Francisco's Department of Motor Vehicles, his driver's license is expired. On purpose.The outspoken, techno-hippie, wealthy civil libertarian doesn't want to give his Social Security number to the DMV.
Neither will he show his driver's license at airports, or submit to routine security searches. This refusal to obey the rules led him to file suit against the Bush administration (Gilmore v. Gonzales) after being rebuffed at two different airports on July 4, 2002, when he tried to fly without showing identification. One airline offered to let Gilmore fly without showing ID, but only if he underwent more intensive security screening, which he declined.
On Thursday, Gilmore and his lawyers will get 20 minutes in front of the 9th U.S. Circuit Court of Appeals to make their argument against identification requirements and government secrecy, in a case that time and shifting public opinion has transformed from a quirky millionaire's indignant protest into a closely watched test of the limitations of executive branch power.
"The nexus of the case has always been the right to travel," Gilmore said. "Can the government prevent Americans from moving around in their own country by slapping any silly rules on them -- you have to show ID, you have to submit to searches, you have to wear a yarmulke?"
Gilmore has sunk thousands of dollars into fighting identification requirements, but he also personally committed to not traveling in the United States if he has to show identification.
So Gilmore has not taken a train, an intercity bus or a domestic flight since July 4, 2002. He still flies internationally.
Gilmore describes himself as being under "regional arrest," and said he would love to drive and fly again.
"I'm a millionaire," Gilmore said. "I can do whatever the fuck I want, right? Why should I run around without an ID? Because no one else was paying attention to that and letting our liberties slip down the drain. I figured it was worth some amount of money and some amount of personal sacrifice to keep a free society."
Regardless of your take on the necessity or usefulness of showing identification, the questions Gilmore's case is raising about government secrecy are intriguing.
Here's what Abraham Sofaer of the Hoover Institution has to say on his nascent SofaerBlog.
I hope Sofaer will excuse me for quoting him at length:
Those of you who follow privacy issues obsessively will probably have seen John Gilmore’s website, a standard boilerplate PANIC NOW privacy advocate website. What interests me is DOJ’s argument here claiming that 49 U.S.C. 114(s)(1)(C), which prohibits disclosing information “developed or obtained in carrying out security” together with 49 CFR 1520.9(a)(1), enable TSA to enact a secret rule requiring ID to be shown when boarding an aircraft simply by issuing such a rule and then declaring that rule’s existence to be sensitive information.The judge denied the DOJ motion to file its brief in camera and ex parte (ed. note. in camera means in the judges chambers and ex parte means without Gilmore's la, and so DOJ filed a brief in the case that assumed that ID requirements do exist, rather than provide documentation on whether that is the case. Here is a choice quote from that brief: “First, there is an administrative record, namely, the TSA security directive alleged by plaintiff.” (emphasis mine) Lawyers can say things like that with a straight face. The brief argues in part that the ID requirement is a law enforcement technique, not a law in itself, and therefore it does not need to be published in a codified form.
The interesting part of the whole thing to me is how insistent TSA is about not releasing official text of the ID-or-search rule. It’s not clear how such a rule could be a secret in any meaningful sense of the word. The argument put forward by DOJ is that it is analogous to catching drug traffickers, where the investigator properly does not wish to reveal his criteria for where to focus investigative attention. Since the ID requirement is (alleged and assumed to be) uniform, I can’t see how that applies. It seems to me that TSA wants blanket authority to make secret and globally-applicable regulations, with review to be done only by appellate courts, and only under seal.
On December 8th we will find out whether congress has given them that authority.
Posted by Ryan Singel at 12:11 AM | Comments (1) | TrackBack
December 06, 2005 | Secondary Screenings on the SubwaysThere's a fine debate -- ahh, hell, call it a mêlée -- going on over at the malapropblog, Concurring Opinions.
A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting.
Here's the scorecard so far, in reverse chronological order:
News story about the decision: Larry Neumeister's AP story
1. Professor Daniel Solove takes gloves off
2. Solove, NYC Subway Searches Upheld: A Critique of the Court’s Decision
4. Mazzone, Subway Searches: A View from New York (critiquing Solove)
5. Dave Hoffman, NYC Subway Searches: A Response to Dan (critiquing Solove)
6. Solove, Rational Security vs. Symbolic Security (responding to Hoffman and Mazzone)
7. Hoffman, Are Subway Searches Really the Top of a Slippery Slope to Korematsu (replying to Solove)
8. Mazzone, Democratic Searches and Seizures (replying to Solove)
When Mayor Bloomberg announced the policy, I laughed at it here, and when I visited New York in September, all I saw of the policy were a bunch of bored-looking cops behind a card table at the Staten Island Ferry.
Perhaps, though, the judge was right and I was wrong. Wouldn't be the first time.
Posted by Ryan Singel at 03:09 PM | TrackBack
December 16, 2004 | Stashing the StashJohn Perry Barlow, former Grateful Dead Lyricist and co-founder of the Electronic Frontier Foundation, had little luck yesterday fighting the TSA's baggage screening process that led to his arrest in September 2003, when a screener found pot hidden in a bottle of ibuprofen in his bag, according to Mary Anne Ostrom's article in the Mercury News.
Barlow had claimed he was the subject of an unlawful search and seizure under the Fourth Amendment; the screener can look in checked baggage for explosives and incendiary devices that might be used to blow up an airplane, his attorney argued, but not drugs.It was a pair of laser gloves Barlow used at the Burning Man festival that initially caught the baggage screener's attention when an X-ray machine showed wires, electrodes and batteries in checked luggage.
Barlow's attorney had tried to convince the judge that his client's case would expose the federal agency's baggage check policies as nothing but ``a stalking horse'' for much broader criminal investigations. The defense did elicit testimony from airport police that they work closely with the Transportation Security Administration, Drug Enforcement Agency and baggage screening contractors to act on drug tips, but that's not what led to Barlow's arrest.
I think Barlow's arguments are actually pretty sound. If cops get a warrant to search your house for illegal weapons, they should not be able to open bottles in your medicine cabinet to check for illegal drugs. If they search your house and you've got an ounce of pot sitting out on the coffee table, then the cops are fine, by law, to arrest you for possession. (Of course, that's leaving aside the question of whether pot or any drugs should be criminalized).
)
That said, Barlow's arguments are not nearly as interesting as his friend John Gilmore's arguments are.
(Funny side note: according to this entry on Barlow's blog, Barlow had Gilmore post bail for him last year, but that almost did not work because, although Gilmore had enough cash, he refused to show identification.)
Posted by Ryan Singel at 10:34 AM | TrackBack
November 19, 2004 | Secret Law NewsStephen Aftergood, the seemingly indefatigable researcher behind the Secrecy Project at the Federation of American Scientists, has a fantastic piece in Slate today about secret laws and the Transportation Security Administration.
I've written about the abuse of the "Sensitive Security Information" designation here on this blog and for Wired News, mainly in regards to John Gilmore's legal challenge to the airline identification requirement. (Exhibit A, B, C.
Aftergood lays out how this abuse got started with a "little-noticed passage in the Homeland Security Act of 2002 expanded the scope of SSIs to prohibit disclosure of information that 'would be detrimental to the security of transportation.' This change in wording ushered in an expansive new interpretation of SSI. A May 2004 Federal Register notice spelled out 16 categories of information that may now be designated as SSI. These include not only airport security plans (as before) and threat assessments, but also records of security inspections and investigations, names of security personnel, and training materials. More problematically, "security directives" such as the one that Chenoweth-Hage requested are exempt. And for good measure, the 16th category is a catch-all exemption for "other information" that TSA may at its discretion determine should be withheld."
The government continues to contend that they do not have to reveal the rule requiring airlines to ask for identification, since that would reveal a law enforcement technique designed to stop hijackings.
That's akin to not telling visitors to the United States that they need a visa and a passport, because those are law enforcement techniques designed to stop illegal immigration.
Difference there is that this is your government refusing to admit what you already know. If you want to fly, you better bring identification or be prepared to spend a couple of hours being searched and trying to talk your way on to a plane/
Additionally, the government argues that citizens have to lodge challenges to any security directives in the appeals court, not the district court. What that means, is that there can be no finding of fact. You challenge the rule, the government maybe shows the rule to the judge (but not you), and then the judge rules. You can't bring in evidence or engage in discovery. That's a sham.
Not only that it is flatly absurd, unbecoming of a democracy and an abuse of the SSI designation. Folks in the government know that as well, but they won't say it publicly.
They should start speaking out.
Secret law is dangerous, regardless of what you think of the validity or usefulness of the hidden law.
Posted by Ryan Singel at 11:52 AM | TrackBack
November 10, 2004 | Hunches HunchesThe ACLU of Massachusetts is suing to stop a homeland security pilot project in Boston that encourages screeners and cops to use hunches and suspicious behavior to apprehend terrorists.
As I wrote last month, when the program first came to light, there are some very interesting legal questions about the program, regardless of one's take on the usefulness or appropriateness of the program.
If a police officer questions a passenger, and does not like their answers or encounters a person who won't answer the questions, what are they to do?
Can they themselves prevent the passenger from proceeding to their plane? from leaving the airport?
Can they tell a screener not to let the person board?
If so, what authority are either of them invoking?
According to the press release, the ACLU is suing since one of its own was singled out by officers:
The lawsuit was filed on behalf of King Downing, the National Coordinator of the ACLU's Campaign Against Racial Profiling, who was approached by law enforcement officials after arriving at Logan Airport on October 16, 2003 to attend a meeting on racial profiling in Boston. Upon arriving at the airport, Downing, an African-American who wears a short beard, left the gate area and was making a phone call in the public terminal when he was stopped by a state police trooper who demanded that he produce some identification. When Downing declined to do so without knowing the basis for the request, he was first told that he would have to leave the airport. However, when he attempted to leave the terminal building, Downing was stopped again, surrounded by four troopers and told that he was being placed under arrest for failing to produce identification. When Downing finally agreed to produce his driver's license, the troopers then demanded to see his airline ticket. Downing was told by the police that he could be barred from the airport if he did not cooperate. After the police inspected Downing's identification and travel documents, he was allowed to leave. No charges were ever filed against him."This is a dangerous extension of police power," said Downing. "I was stopped and held for no legal reason by armed State Police troopers. I was told I could not leave unless I proved who I was and why I was at the airport, and that if I did not cooperate, I would be arrested or banned from the airport. This is racial profiling, and not the action of a government that stands for freedom and the rights of all its people."
Still, I wonder why did Downing show the police his airline ticket if he thought they didn't have a right to see it? I mean, he's an ACLU lawyer, right?
Here's why clearing up these questions is important:
Behavioral profiling has been used as the basis for stopping passengers since 2002 when Massport announced that State Police troopers at Logan Airport were being trained by an outside security consultant. The procedures were subsequently incorporated into the state police "Behavior Assessment Screening System" used at Logan and other locations. It was recently reported that B.A.S.S. is being used as a model by the Transportation Security Administration, which will soon launch a similar program nationwide, entitled SPOT ("Screening of Passengers by Observation Techniques").
Update: Edward Hasbrouck argues with my questioning of why Downing showed his airline ticket to the police, writing that it is "pretty obvious why an African-American man -- even an ACLU staff lawyer -- surrounded by Mass. troopers would hand over his papers, once he was told that he was already under arrest and explicitly threatened that he would otherwise be 'going downtown', rather than trying to stand on his rights. On the street, or in the airport, a bar card is no match for guns and clubs."
No doubt, Edward has a good point and I did not mean to impugn Downing.
That said, my point was really that the suit would be even more interesting in terms of clarifying the authority of the police to demand someone's plane ticket, if Downing had actually been arrested for not turning it over.
I'm not so sure it is illegal for the police to claim to have powers they do not have.
In lieu of an arrest, that (along with the related question of whether or not he was actually detained at the airport until he produced the ticket) seems to be one of the two main legal issues in the lawsuit. (The other being, of course, whether the hunch system is simply racial profiling by another name.)
Posted by Ryan Singel at 01:20 PM | TrackBack
November 09, 2004 | The No-Fly Lawsuit (a.k.a How to Get Off the List by Getting More On It)Edward Hasbrouck has the goods on the no-fly lawsuit brought by the ACLU in Washington State.
The government filed a number of documents, some in secret, some public. The secret ones include a number of security directives to airlines. The public ones include the forms used by the TSA Ombudsman in the process of trying to help those caught by the no-fly and selectee lists for having a name similar or the same as the person actually put on the list.
Here's those docs (.pdf).
The process works like this: you contact the TSA ombudsman at 571.227.2383 (or 571.227.1449) or by email at ombudsman@dhs.gov. You explain what's happening to you and if they think you are being snagged because of your name (and not because you bought one-way tickets or paid with cash or made a last minute reservation), they send you a Passenger Identity Verification Form.
You fill that out and give them your office phone, SSN, address, place of birth, height, hair color, etc.
You also have to provide them with copies of 3 of the following:
1. Passport
2. Visa (no, not your credit card)
3. Certified Birth Certificate (if you need one of these you go online and order one from the state you were born for $15 bucks or so)
4. Naturalization Certificate
5. Voter Registration Card
6. Driver's License
7. Government Identity Card
8. Military Card
Then you get those notarized.
(Note that having three of these is a pain in the ass, especially for anyone who is not registered to vote or does not have a passport.)
After they get this, they do some sort of identity authorization, primarily based on your social security number. I assume that Lexis-Nexis or Acxiom or Choicepoint is used.
Then if you are lucky, you and your information gets put on a list of people cleared off the list. This get-off-the-list list is then sent to the airlines. From then on you should bring at least two forms of identification and the airlines are supposed to clear you faster.
Posted by Ryan Singel at 01:04 PM | Comments (3) | TrackBack
November 04, 2004 | No-Fly LawsuitThe ACLU's class action challenge to the no-fly list had its first day in court today in U.S. District Court, Western District of Washington at Seattle, as its lawyers fought against a government motion to dismiss the case. The government argues the case has no merit and it is filed in the wrong court.
From their press release:
The ACLU lawsuit, which was filed on April 6, asks the court to declare that the No-Fly lists violate airline passengers' constitutional rights to freedom from unreasonable search and seizure and to due process of law under the Fourth and Fifth Amendments. The ACLU is also asking the TSA to develop satisfactory procedures that will allow innocent people to fly without being treated as potential terrorists and subjected to humiliation and delays.The individuals named in the class-action lawsuit are:
* John Shaw, 75, a retired Presbyterian minister, from Sammamish, Washington;
* Michelle D. Green, 36, a Master Sergeant in the U.S. Air Force;
* David Nelson, 35, an attorney from Belleville, Illinois;
* David C. Fathi, 41, a senior staff attorney with the ACLU National Prison Project in Washington, D.C.;
* Mohamed Ibrahim, 51, a coordinator for an immigrants' rights project with the American Friends Service Committee in Philadelphia;
* Alexandra Hay, 22, a student at Middlebury College in Vermont; and
* Sarosh Syed, 27, a graduate student at Georgetown University in Washington, DC.
The government is arguing that the District court has no jurisdiction and that if the lawsuit has any merits, it should be filed in the appeals court first. They successfully used this argument to have the Northern California District Court dismiss John Gilmore's challenge to the identification requirement.
I was not able to get to the hearing today, so it is hard to say how receptive the judge was to this argument.
The TSA is also arguing that the no-fly list, the selectee list and the procedures that airlines must follow to enforce the lists are SSI (sensitive security information). This classification means that the government will refuse to disclose (.pdf) this information in open court.
The ACLU's page on the lists is here.
Posted by Ryan Singel at 09:54 AM | TrackBack
October 04, 2004 | Cop-based Airline Passenger Pre-Screening SystemThe Transportation Security Administration is launching a limited pilot of a new airline security program at two northeastern airports in the coming months, which will teach airline screeners to look for suspicious-acting individuals and refer them to cops nearby for questioning, according to Sally Donnelly's piece in Time Magazine.
In short, it's an attempt to use intuition to single out passenger's for secondary screening.
There's been much discussion (of a sort) of this program today on Dave Farber's excellent Interesting People list, but this particular item was first sent to me by the illustrious Richard M. Smith, who most recent claim to fame is his review of the presidential candidate's web sites.
The program is called SPOT, short for Screening of Passengers by Observation Techniques (won't someone please, please stop the acronym madness).
According to the article:
Passengers who flag concerns by exhibiting unusual or anxious behavior will be pointed out to local police, who will then conduct face-to-face interviews to determine whether any threat exists. If such inquiries turn up other issues of concern, such as travel to countries like Afghanistan, Iraq or Sudan, for example, police officers will know to pursue the questioning or alert Federal counter-terrorism agents.
Now, this may be sensible (remember this great New Yorker article on face reading?); it may just be a fancy way of conducting racial profiling; it may be more effective than using commercial databases and a watch list, but that's not what interests me.
The real question is: Do you have to answer the police officer's questions?
Which is really the question of what authority will police use to question or detain people.
Now, there is nothing in the law that prohibits police officers from questioning people.
However, an officer's right to demand identification in this circumstance is far less certain, despite the widespread over-interpretation of the recent Hiibel Supreme Court case.
(The Supremes carefully worded that decision so that police in some states can require a person to identify themselves if the police have a reasonable suspicion that a crime has or is about to happen, but its unclear whether a second-hand hunch is reason enough, or even that was enough, whether one could simply state one's name as a form of identificatiion.)
So the question is, if a passenger is 'referred' to an officer, would they 1) have to show identification or 2) answer the questions. Also unclear is what a police officer could do if a person refused to do either.
Remember that a person always has the right to refuse to answer a police officer's questions.
Police may not be detain you for not answering a question, unless they arrest you and charge you with a crime.
But, airports are not city streets. And, the law gives the TSA wide latitude to search passengers belongings.
The TSA also has a policy of requiring airlines to ask passengers for identification, upon pain of an intensive search.
Though government lawyers refuse to acknowledge that that policy exists, everybody knows it does.
Hell, both the TSA and the Department of Transportation have both admitted as much in the Federal Register this summer.
But the same government lawyers also argue that the identification-or-search requirement can not be challenged since it is a "law enforcement technique" designed to prevent terrorism and hijackings.
Would the same argument apply to local police officers working in an airport?
If a police officer questions a passenger, and does not like their answers or encounters a person who won't answer the questions, what are they to do?
Can they themselves prevent the passenger from proceeding to their plane?
Can they tell a screener not to let the person board?
If so, what authority are either of them invoking?
Airline travel may not be a right, but airlines are still common carriers, who have to transport a passenger unless the captain refuses the passenger or the passenger refuses to comply with a security rule.
But does the TSA or law enforcement have the right to ground a passenger who is not on a watchlist and does not have any prohibited items, on the grounds that the person won't answer questions or admits to travelling often to Pakistan?
My hunch is no, the airport exception does not reach that far.
But given the government's filings in the Gilmore v. Ashcroft case, I think that Justice Department lawyers would likely say 'Yes, they do' and 'No, you can not see the reason why or challenge it in court.'
Posted by Ryan Singel at 09:50 PM
September 30, 2004 | Gilmore v. Ashcroft Update:Justice Department lawyers filed their reponse to John Gilmore's lawsuit against the secret requirement that airline passengers must show identification or face extra screening before boarding a plane.
It's an odd case for a lot of reasons -- not least of which is that the government's lawyers keep insisting that they will neither confirm nor deny the existence of the rule -- even as Wednesday's filing admitted that the government had published the existence of the rule elsewhere.
There's more here in my story today:
Internet entrepreneur Gilmore first challenged the constitutionality of requiring airlines to ask passengers to show identification in U.S. District Court in San Francisco in July 2002, but the government refused to tell that court whether the rule existed.Gilmore argued that the rule is vague, since no one knows what kind of identification is adequate and the penalties are unknown. He said he opposes Americans being subjected to a secret law. The rule impinges upon the right to travel and leaves people open to unreasonable searches, he added.
In Wednesday's filing, the government continued to stonewall about the existence of the identification-or-search requirement.
But they did acknowledge that
The Transportation Security Administration published notice of the identification portion of the requirement in a little-noticed May 2004 Federal Register filing about maritime security. That notice, which expanded the reach of secrecy rules for information classified as "sensitive security information," carved out an exception to secrecy for cases when the government needs to publicize a rule to ensure "compliance.""For instance, as part of its security rules, TSA requires airlines to ask passengers for identification at check-in," the filing read. "Although this requirement is part of a security procedure that is sensitive security information, TSA has released this information to the public in order to facilitate the secure and efficient processing of passengers when they arrive at an airport."
Now, the question is did the TSA intentionally include the identification requirement as the example. Or did they do this inadvertantly, and the DoJ lawyers simply noticed it when they were researching their brief?
At least one of Gilmore's lawyers thinks its the former and that the TSA included the info to aviod further legal challenges.
William Simpich, one of Gilmore's lawyers, questioned the timing and manner of the TSA's filing, calling it embarrassing."They are trying to hide what they are doing from the American people," Simpich said.
The government filed the notice just after Gilmore's original case was dismissed, and Simpich claimed the government hid the notice to avoid future legal challenges since such orders generally have to be challenged within 60 days.
But perhaps even more interesting is the government's argument that the identification requirement isn't a law, it's simply a way to detect those who break the law:
Justice Department lawyers also argued that Gilmore cannot challenge the requirement because it is not a law, it is a law enforcement technique."The identification-or-search requirement is simply a technique used to detect possible violations of the law, such as the prohibition on carrying a weapon or explosive onto the plane," they wrote. "While passengers have a right to know the law (that they cannot bring weapons on board), they have no due process entitlement to advance notice of how the Government might attempt to discover whether the law is being broken."
Simpich dismissed that argument as absurd doublespeak.
"Drugs are against the law," Simpich said. "So blowing through your house to look for drugs is a law enforcement technique that you can't challenge, either."
This case gets more and more interesting every time Gilmore or the government files papers...
As good old Mr. Drudge says, developing...
Posted by Ryan Singel at 03:07 PM