From: Peter Swire [peter@peterswire.net]
Sent: Wednesday, August 06, 2008 11:57 AM
To: David Farber
Subject: DHS responds on laptop searches; direct action campaigns

Dave:

Public concern about laptop searches seems to be getting the attention of senior officials at DHS.

Yesterday, they posted “Answering Questions about Laptop Searches” by Jayson Ahern, Deputy Commissioner, U.S. Customs and Border Protection: http://www.dhs.gov/journal/leadership/

It links to his June 30 post on “CBP Laptop Searches”: http://www.dhs.gov/journal/leadership/2008/06/cbp-laptop-searches.html. Readers may wish to add their comments to the blog post.

Their basic point remains the same – customs has checked people’s items at the border for 200 years, so they can check your laptop.

Meanwhile, this issue has hit the front page of DailyKos, http://www.dailykos.com/storyonly/2008/8/4/141837/1015, and Dave Farber’s list gets mentioned in the Salon article, http://machinist.salon.com/blog/2008/08/04/encryption/index.html.

Two direct action campaigns are underway:

(1) “Hands Off My Laptop,” from Center for American Progress Action Fund: http://www2.americanprogress.org/t/288/campaign.jsp?campaign_KEY=6239

(2) Electronic Frontier Foundation action site: https://secure.eff.org/site/Advocacy?alertId=373&pg=makeACall.

Peter

Prof. Peter P. Swire
C. William O'Neil Professor of Law
Moritz College of Law
The Ohio State University
Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net

Lots about laptop searches

Customs and Border Patrol at the Department of Homeland Security was just given the green light to search and seize laptops at the border, without probable cause, by the Ninth Circuit Court of Appeals. They can deny entry to anyone who refuses to give up their laptops and password. This is an affront to our progressive values of privacy and protection from unwarranted search and seizure.

This is the CAP Action Campaign Decius mentioned during his talk at the Last HOPE. You can use this form to request that Customs perform a privacy impact assessment on the practice.

I Am Progress - Hands Off My Laptop

Last week, federal, state, and local police in Tennessee, Mississippi, and Arkansas conducted a massive sweep dubbed "Operation Sudden Impact."

The operation included raids of businesses, homes, and boats; traffic roadblocks; and personal searches. They say they were looking for "terrorists." If they found any, they haven't announced it yet. They did arrest 332 people, 142 of whom they describe as "fugitives." They also issued about 1,300 traffic tickets, and according to one media account, seized "hundreds" of dollars.

...

The FBI along with hundreds of officers said they are looking for anything out of the ordinary. Agents take computers and paperwork from businesses.

"What we have found traditionally is that terrorists are involved in a number of lesser known type crimes," said Mark Luttrell, Shelby County sheriff.

There you have it. All law enforcement is anti-terrorism. The police cannot legally establish "anti-terrorism" roadblocks that essentially serve as forums for random search and seizure.

Tennessee Terrorism Sweep nets traffic violators

The Ninth Circuit has (finally) handed down United States v. Arnold; the court ruled that there is no Fourth Amendment requirement of "reasonable suspicion" to search a laptop computer at the border.

This is extremely bad.

The Volokh Conspiracy - Ninth Circuit Allows Suspicionless Computer Searches at the Border:

It's six minutes before midnight as a surveillance
society draws near within the United States.

The ACLU has created a Surveillance Society Clock similar to the Doomsday Clock.

American Civil Liberties Union : Surveillance Society Clock

The F.B.I. cast a much wider net in its terrorism investigations than it has previously acknowledged by relying on telecommunications companies to analyze phone-call patterns of the associates of Americans who had come under suspicion, according to newly obtained bureau records.

The documents indicate that the Federal Bureau of Investigation used secret demands for records to obtain data not only on individuals it saw as targets but also details on their “community of interest” — the network of people that the target in turn was in contact with. The bureau stopped the practice early this year in part because of broader questions raised about its aggressive use of the records demands, which are known as national security letters, officials said Friday after being asked about it.

The community of interest data sought by the F.B.I. is central to a data-mining technique intelligence officials call link analysis. Since the attacks of Sept. 11, 2001, American counterterrorism officials have turned more frequently to the technique, using communications patterns and other data to identify suspects who may not have any other known links to extremists.

Mike Kortan, a spokesman for the F.B.I., said in a statement Saturday in response to an article posted on The Times’s Web site on the bureau’s use of the community-of-interest requests that “it is important to emphasize that it is no longer being used pending the development of an appropriate oversight and approval policy, was used infrequently and was never used for e-mail communications.”

“Getting a computer to spit out a hundred names doesn’t have any meaning if you don’t know what you’re looking for,” said Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union. “If they’re telling the telephone company, ‘You do the investigation and tell us what you find,’ the relevance to the investigation is being determined by someone outside the F.B.I.”

At least someone is objecting to making the phone company part of the IC, rather than just an asset of the IC. That's a little bit better than "checks and balances kill people, so just trust us."

F.B.I. Data Mining Reached Beyond Initial Targets - New York Times

In April of 2006, Wired News editor Kevin Poulsen sued the United States Customs and Border Patrol under the Freedom of Information Act. Poulsen won the case, and yesterday the trial court granted Poulsen $66,000 in attorney’s fees.

Poulsen had asked CBP to disclose under the FOIA documents about a computer failure suffered by the US VISIT system, which was established to screen foreign nationals entering the country against terrorist watch lists. CBP refused, then asked Poulsen to drop his request, then denied the request. claiming that if the public knew what caused the outage, it would harm national security, among other reasons. Poulsen believed that if the problem was fixed, as it should have been, the public had a right to know why the US VISIT computers were malfunctioning.

On summary judgment, Judge Ilston in the Northern District of California ordered CBP to release documents and the documents revealed that the computers were infected with the Zotob worm, a common Microsoft Windows vulnerability.

The Zotob infection and CBP’s management of it was one of many technological and bureaucratic problems that ultimately led the government to abandon the US VISIT program, after almost two years and $1.7 billion dollars. Talk about information the public has a right to know.

Jennifer Granick has the full story.

Victory in Poulsen FOIA case

In honor of MLK day and to take the edge of the last post, here is a video of the "I have a dream speech."

YouTube - Martin Luther King Jr - I have a dream speech - Aug 28 1963

Ryan Singel at 27B Stroke 6 chimes in on an element of the Democrats' 911 bill. This sounds really good to me.

Most notably, the bill removes the Privacy and Civil Liberties Board from the White House -- turning it into an independent agency. Currently the 5-member board serves at the pleasure of the president and only the chair and vice-chair need Senate confirmation. Critics charge that the board has no independence and since it serves inside the White House, can only effectively work as an insider, even though its charged with and attempting to be a public-facing board. These contradictions were glaringly obvious in their first public meeting in December, when it refused to take questions from the press and admitted the panel knew, but would not reveal, the number of Americans targeted yearly by the President's warrantless spying program.

The Democratic Congress's idea of what the panel should look like may well lead to a veto or a court challenge. Each member would serve for a six-year term (meaning they could not be fired), the board would have to report to a bevy of Congressional oversight committees, no more than three members can be from the same political party, and the board can issue its own subpoenas to require people not in the government to turn over records.

Additionally, other agencies, including all intelligence agencies, will have to appoint privacy and civil liberties officers, who themselves will have to report often to Congress and the Privacy and Civil Liberties boards on their activities and investigations. The chief privacy officer of the Department of Homeland Security, currently the only privacy officer mandated by Congress, also gets expanded powers to issue outside subpoenas and use the same powers as the Inspector General to force cooperation from Homeland Security employees.

27B Stroke 6 | Dem's Privacy Changes in 9/11 Bill Challenge Administration

"Its definition of freedom -- one utterly divorced from civic responsibility -- is superficial and is itself a grave threat to the liberty and security of the American people."

Apparently asking the executive to comply with acts of Congress is "utterly divorced from civic responsibility."

Gonzales attacks ruling against domestic spying - CNN.com