If a TSA agent stops you in an airport and starts asking questions, are you free to leave? What happens if you refuse to answer? Doesn't the 4th amendment require reasonable suspicion before a government agent can seize a citizen. I'll offer at least even odds that this SPOT program won't survive judicial scrutiny as is. This post links an interesting discussion of this question.

So, I wonder if a period of questioning by a SPOT guy (especially the MA State Cops in BOS) could be construed as a Terry Stop? Is someone's perceived behavior good enough to provide "reasonable suspicion that criminal activities is a foot [sic]."? I've read other stuff defining that there has to be a context for the "reasonable suspicion" and that a police officer has to be able to reasonable articulate why he or she concluded that a crime was about to be committed...

From this case, here is a pretty interesting argument against the SPOT program and the accusations of it being a "dragnet" for all sorts of thing unrelated to aviation security:

Is a TSA SPOT interview a "Terry Stop"

Two well-respected US peace activists, CODEPINK and Global Exchange cofounder Medea Benjamin and retired Colonel and diplomat Ann Wright, were denied entry into Canada On October third. The two women were headed to Toronto to discuss peace and security issues at the invitation of the Toronto Stop the War Coalition. At the Buffalo-Niagara Falls Bridge they were detained, questioned and denied entry.

Database sharing between the U.S. and Canada begins to have political implications, as acts of civil disobedience can now make you unable to cross the border.

FBI Puts Antiwar Protesters on Criminal Database; Canada Uses It To Ban Protesters From Entry

Orin Kerr's take:

I should say that as a matter of policy, I think the Patriot Act amendment to FISA is a good idea. If the government can establish probable cause to believe someone is a terrorist or a spy possessing foreign intelligence information, that should be enough to monitor them; allowing the government to then use the evidence to prosecute the terrorist or spy in a criminal case seems sensible to me...

Nor am I particularly persuaded that this is "watering down" the traditional Fourth Amendment warrant process. First, the government still needs to establish probable cause to a federal judge that someone is a terrorist or a spy with foreign intelligence information; that's not exactly a low standard, as the FISCR properly recognized. It seems unlikely to me that the government would seek to circumvent the traditional Fourth Amendment standard of pc that a person committed a crime (however minor) simply by establishing pc that a person was a terrorist or a spy; if that's an easier threshold to meet, it's not clear to me why.

That seems quite logical actually.

The Volokh Conspiracy - My Analysis of the Oregon FISA Decision:

We couldn't find al-Mihdhar and al-Hazmi in August 2001 because we had imposed too many rules designed to protect against privacy abuses that were mainly theoretical. We missed our best chance to save the lives of 3,000 Americans because we spent more effort and imagination guarding against these theoretical privacy abuses than against terrorism.

I feel some responsibility for sending the government down that road.

This is an interesting discussion of the line between intelligence gathering and law enforcement that hasn't been recommended here before. I have some thoughts about this that perhaps I'll discuss at phreaknic.

Setting ourselves up for more 9/11s. - By Stewart Baker - Slate Magazine

I'm actually quoting a quote:

By shifting the required certification from "the purpose" to "a significant purpose," . . . [the PATRIOT Act] necessarily reopens the seemingly settled question of FISA's constitutionality under the Fourth Amendment. First, to the extent that courts have recognized a foreign intelligence exception to the Fourth Amendment's warrant requirement, the question is whether that exception should apply where the gathering of foreign intelligence information is not the main purpose of the surveillance or search.

Apparently the government conceeded the point I raised earlier about the "primary purpose" of this investigation. Perhaps they did so intentionally to bring this question to litigation in a context where the specific outcome has limited relevance because the suspect is innocent.

Balkinization: On the Patriot Act case...

The practical result of this amendment, objected to by plaintiffs, is that in criminal investigations, the government can now avoid the Fourth Amendment's probable cause requirement when conducting surveillance or searches of a criminal suspect's home or office merely by asserting a desire to also gather foreign intelligence information...

In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.

This is complicated. On the one hand this is one of those provisions of the Patriot Act which I don't like, because it allows for anti-terrorism powers to be applied in cases which aren't primarily related to anti-terrorism. This passage, and others like it, are, in my view, the core problem with the Patriot Act: that it was a set of anti-terrorism powers obtained in the wake of a dramatic terrorist attack and yet many of them are designed to be used in contexts that have absolutely nothing to do with terrorism.

However, I'm not sure thats whats going on in this case. This guy was implicated (albeit incorrectly) in an international terrorism attack. It seems to me that the primary purpose of searching such a person would be national security related. I don't have time to read it... Eagerly awaiting Orin Kerr's analysis...

Patriot Act provision struck

skullaria wrote:
I'm always afraid that I might become a social suspect one day simply for NOT carrying my cell phone with me.

Very interesting! Not too long ago possession of a cellphone, at least by people in certain socioeconomic classes, was likely to arouse suspicion. I recall when I was young it was literally illegal to possess a cellphone or pager if you were under 18, as only drug dealers would need to do so (according to the authorities). I resented this as a technically inclined person who wanted to early adopt such toys. It seemed like more irrational, mindlessly overboard assertions of authority by adults. I legally possessed a radio that enabled me to (illegally) listen in to people's cell phone calls but I could not possess the phones that made those calls. Clearly only criminals communicate with each other!

Now it is becoming a social expectation that you carry a phone. All those old laws have met with resistance and have been repealed. Pay phones are being pulled off the street because no one needs them anymore. In the future perhaps it will be more so... only extremely poor, marginal people would fail to carry a cellphone. Most payment for goods might occur with the phone. Numerous public services might be operated under the assumption that users carried web browsers with them. Public transport maps and schedules, for example, might only be made available electronically. Restaurants might expect you to access electronic menus or request a reservation via SMS before you arrived. Communities seeking beautification might pass sign ordinances reducing outdoor advertisement in favor of location based messaging that would make it difficult to even identify businesses without an electronic device.

A middle class person without a phone would be viewed as garishly eccentric in a way that arouses suspicion. As people become more familiar with the idea that cellphones are used by the authorities to monitor them, failing to carry one might be taken not merely as extreme luddism, but as a sign that you have something to hide... Like a stranger who doesn't have a credit card or a driver's license; there was a time when most people carried neither.

RE: You have no 4th amendment right to privacy in regard to your physical movements.

This morning, you left the house tagged with a tracking device that the government can use to find out where you have been and where you are going.

I'm talking, of course, about your cell phone...

While most courts considering the issue have held that police need "probable cause" to track your movements, a new decision (.pdf) last week out of the U.S. District Court of Massachusetts holds that law enforcement need show only "relevance to an ongoing investigation" to get a historical record of your past movement (something like the Jeffy trail in The Family Circus cartoon).

You have no 4th amendment right to privacy in regard to your physical movements.

Rev.Lennox Yearwood regarding being attacked, arrested, and hospitalized by Capitol Police

He also delivered this rant which is more theatric.

YouTube - Rev. Yearwood speaks re: Police Brutality against him.

While we're on the subject of using force as a legitimate part of your job vs. using force because you like hurting people and now you've got a job that gives you a passable explanation for having done so, the final public report on the UCLA taser incident from last November is available.

The conclusions of this report are that the officer's actions were completely outside of UCLA policy and that the policy is also too liberal. This is obviously unwelcome news to various commentators who supported this incident as model police behavior. However, for their benefit it there is also a second "internal" report that you and I are not allowed to read which concludes that there was absolutely nothing wrong with what happened. This enables UCLA management to change their policies without admitting that anyone has done anything wrong.

Which report is correct? Such questions completely miss the point. Its not about right or wrong. If you want to really understand all of this please refer to my previous post on how everything everywhere actually works.

At the behest of acting UCLA Chancellor Norman Abrams, the Police Assessment Resource Center (PARC) conducted a seven- month, independent investigation of a November 14, 2006 incident at UCLA’s Powell Library in which the UCLA Police Department (UCLAPD ) arrested UCLA student Mostafa Tabatabainejad. This report sets forth our factual findings and conclusions.

This story has no heroes. The event triggering the repeated electrical shocking of Tabatabainejad was a declination by the UCLA student to produce a BruinCard identification in the Powell Library computer lab after hours. While the student should have simply obeyed the order to produce the card, and by not doing so brought trouble upon himself, the police response was substantially out of proportion to the provocation. There were many ways in which the UCLAPD officers involved could have handled this incident competently, professionally, and with minimal force. We find that one UCLAPD officer violated UCLA use of force policies in the incident. We further conclude that UCLAPD’s current policies are, in any event, unduly permissive, giving the police unnecessary latitude, and are inconsistent with the policies of other universities and leading police departments across the country, including other University of California campuses, the LAPD, and the Los Angeles County Sheriff’s Department (LASD). The UCLAPD policy stands alone in its legitimization of the Taser as a pain compliance device against passive resisters. The current UCLA policy is more permissive than the Sacramento Police Department policy on which it was based and the Taser policy recommended by its chosen outside expert on the question.

UCLA Taser Final Report [PDF]