Alas, innocent Americans now have been granted a far more viable option to go about removing their names from the dreaded Terrorist Screening Center’s aviation watch lists. Prior to Monday’s 9th Circuit Court of Appeals decision to allow individuals to sue the government, the only redress was an endless paper trail of forms to fill out that were almost exclusively void of results.
Yet, the ACLU remains skeptical that the federal government will actually respond to the 9th Circuit’s decision in the appropriate manner by actually crafting a process to help innocent people get off and stay off the watch lists.
Back in July, the ACLU marked the millionth record added to the terrorist watch lists, a number extrapolated from internal inspector general reports on the growth of the lists. It’s hard to imagine that there are now over a million terrorists walking the streets of America waiting for their opportunity to strike. Instead, the terrorist watch lists have spiraled madly out of control, wreaking havoc to the travel plans of the innocent who now find themselves swept up in DHS’s bloated and ineffective attempts at security.
Just today, the Wall Street Journal ran an article describing a preliminary Congressional investigation into the effectiveness of the current terrorist watch list system and its scheduled replacement. Both are found to have major systemic flaws, including the inability to easily search for names within the databases.
This finding led Representative Brad Miller (D-N.C.), chairman of the House Science and Technology subcommittee to claim the current system, "has been crippled by technical flaws" and its replacement system "if actually deployed, will leave our country more vulnerable than the existing yet flawed system today."
The ACLU reiterates its call for the abandonment of the terrorist watch lists, instead adopting national security measures that focus our limited resources on actual terrorist threats – those for whom there is credible evidence of terrorist ties or activities, and not reporters at CNN or former Democratically-appointed Justice Department officials.
There’s now over a million names on the government’s "Terrorist Watch List." In a previous Civil Discourse comic I wondered why small children with common names like "Robert Johnson" are questioned. Today’s comic deals with even more baffling suspects: dead people!
The 9/11 Hijackers made it onto the list only after they killed themselves in the attack that prompted the Bush Administration to go crazy and start throwing everyone from Ted Kennedy to Cat Stevens on the list! The currently deceased deposed dictator of Iraq, Saddam Hussein, is on the watch list. Yes, that’s right. Who knows what kind of experimental toxin or magic spell could awaken Saddam’s evil corpse. If/when this happens, he will no doubt catch a First Class flight to the States. That’s when we nab him!
Keep an eye out for any other dead enemies of the state on your flights. Timothy McVeigh, John Wilkes Booth or Benedict Arnold may take to the skies any day now.
The ACLU of Washington is working with Seattle artist Paul Strong, who has come up with a clever way of driving home the problems of surveillance cameras in public spaces. His Camerahead Project consists of "agents" wearing giant surveillance camera props on their heads, deployed in locations where the city government has installed cameras to drive home just how pervasive and downright creepy surveillance can be.
It bears repeating that the U.S. ranks up there with Russia, China and the U.K. in Privacy International’s rankings of the worst surveillance states. And we’ve repeatedly demonstrated just how useless surveillance cameras really are.
When the Seattle City Council approved installation of the cameras, a concession to the ACLU and others was made that an audit of the cameras’ use would be conducted in 21 months. If you live in Seattle, let the mayor and city council members know that you oppose use of the cameras, and you expect a serious and objective evaluation of the impacts of surveillance cameras.
When Congress enacted and the President signed into law the FISA Amendments Act of 2008, some of the nation’s largest telecommunications companies were given an extraordinary gift: full-scale immunity from the pending lawsuits brought by their customers, who had alleged that their privacy and other rights were violated by the telecoms’ participation in the Bush administration’s illegal spying program. There are, however, several reasons for believing that this telecom immunity provision is unconstitutional, violative of several different constitutional guarantees.
The first and, in my view, strongest constitutional objection to telecom immunity is that it constitutes a usurpation by the Congress and the President of the “judicial power” which the Constitution assigns to the judicial branch. Article III, Section 1, provides that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” while Section 2 specifies that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.”
The lawsuits brought against the telecoms by their customers were brought pursuant to the Constitution and the laws of the United States, as those suits allege that the telecoms violated both the constitutional rights of their customers and federal law. Thus, adjudication and resolution of those lawsuits are the definitive “judicial powers” which the Constitution assigns to courts, not Congress or the President.
When immunizing the telecoms, Congress was not enacting a broad, generalized policy that falls into the scope of the “legislative power” constitutionally assigned to Congress by Article I, Section 1 (”All legislative Powers herein granted shall be vested in a Congress of the United States”). Rather, what Congress was doing was deliberately intervening into pending lawsuits in order to resolve factual and legal issues in favor of one of the parties — the telecom-defendants.
Indeed, the chief Congressional advocate of telecom immunity, Senate Intelligence Committee Chairman Jay Rockefeller, repeatedly stated that he favored telecom immunity because, in his views, the telecoms had acted “in good faith” when cooperating with the Bush administration’s requests to enable illegal spying. And the formal Report of Rockefeller’s Committee repeatedly emphasized, when justifying its support for immunity, its belief that telecoms acted in “good faith” — a finding they reached by examining precisely the evidence and other documents that the court (or a jury) would have examined in order to resolve the telecom cases:
But whether telecoms acted “in good faith” was precisely one of the key factual questions that would have been adjudicated in the telecom lawsuits. The 1978 FISA law already provided that telecoms would be immunized from liability if they acted in the “good faith” belief that what they were doing was legal (see 18 U.S.C. 2520(d)). Thus, the very issue which Sen. Rockefeller and the Congress generally purported to resolve when enacting telecom immunity — namely, whether the telecoms acted “in good faith” by cooperating with the Bush administration’s spying program — was to be resolved by the court as part of the telecom lawsuits. If anything qualifies as a “judicial power,” it is the resolution of those sorts of factual disputes that exist between adverse parties in a lawsuit by examining the relevant evidence. By purporting to resolve that question in favor of the telecom defendants, and by preventing the court from doing so, the Congress usurped a definitive “judicial power” that is reserved by the Constitution for the courts. Congress has simply denied the courts their central, constitutionally assigned role.
A related ground for challenging the constitutionality of retroactive telecom immunity is a straightforward “Due Process” challenge under the Fifth Amendment, which provides that no citizen shall “be deprived of life, liberty, or property, without due process of law.” Telecom customers who had their private communications turned over to the Government in violation of the law have clearly been deprived of property — the right to sue telecoms — without a smidgen of legal process. Instead, Congress has simply intervened in the lawsuit and ruled that the defendants are right and the plaintiffs are wrong.
The Electronic Frontier Foundation’s Cindy Cohn, counsel to plaintiffs in the telecom cases, said: “our clients have the constitutional right to have their cases decided in a court, not by Congress.” Congressional intervention in pending lawsuits for the purpose of deciding the dispute in favor of one of the parties seems clearly to be the sort of denial of property without due process of law that the Fifth Amendment was designed to prohibit.
Independently, it is worth noting here that several of the claims asserted by the plaintiffs in the telecom cases are constitutional in nature — that telecoms have enabled violations of the Fourth Amendment and other constitutional rights of their customers. It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations. For this reason, Congress lacks the authority to enact statutes to deny remedies for constitutional violations. At the very least, the telecom immunity provisions should be held inapplicable to foreclose the plaintiffs’ constitutional claims.
There are, as well, substantial due process problems with the extraordinary secrecy provisions in the FISA Amendments Act. Section 802(c) of the telecom amnesty section actually provides that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won’t ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they’re being dismissed or what the basis is for the dismissal.
So basically, one day in the near future, we’re all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we’re never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won’t we, the public, know that, neither will the plaintiffs’ lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. It is impossible to understand how such secret Star Chamber proceedings can be reconciled with basic precepts of due process. EFF’s Cohn said: “Our clients have the right to know why their cases are being dismissed and what the rationale is for the dismissal.”
A further potential constitutional infirmity with telecom immunity is that it constitutes a “taking” without “just compensation” in violation of the Fifth Amendment. When they commenced their lawsuits against their telecom carries, the plaintiffs possessed something of clear value: namely, the right to sue under FISA and other laws for privacy violations and illegal spying. By retroactively removing those rights, the FISA Amendments Act have, in essence, deprived those plaintiffs of something of tangible value, a government “taking” which the Fifth Amendment allows only in exchange for “just compensation.”
The legal rationale and precedental support for this argument was comprehensively set forth in a Findlaw article by Professor Anthony Sebok at the Benjamin N. Cardozo School of Law. Professor Sebok points out that in other instances where the Congress sought to deprive citizens of existing legal rights — such as when Congress sought to deprive 9/11 victims of the right to sue airlines and World Trade Center owners — Congress provided an alternative form of relief to constitute “just compensation” (in the case of the 9/11 attacks, it created the 9/11 Victims Compensation Fund in lieu of being able to sue in court). As Professor Sebok reasoned:
In fact, throughout the recent history of federal responses to various liability crises, the pattern has been the same: The elimination of causes of action has always been linked to some kind of quid pro quo, whether it took the form of a guaranteed payment, such as for the 9/11 victims’ families, or access to a special court, such as in the case of childhood vaccines. . . .
to read the newspaper reports of the debate in the Senate over the reauthorization of the Foreign Intelligence Surveillance Act (FISA), it is as if this familiar, long history of immunity-for-compensation has been forgotten. The Republicans want to add to FISA a provision that would simply wipe away the lawsuits that have already been filed without any compensation at all. . . .
generally, the idea that a cause of action, once it vests, cannot be retroactively eliminated lies deep in the roots of our common law and constitutional tradition. That idea was one reason why the Senate did not just immunize the airlines and other defendants after 9/11. The reason for creating the Fund was not just that they wanted to help the families of the heroes who died on that day, though surely they did. It was also that they would have kicked up a firestorm of litigation had they tried to cut off the right to sue without offering any compensation in exchange.
It has been widely assumed since enactment of the FISA Amendments Act of 2008 that dismissal of the telecom lawsuits is a fait accompli. But the ACLU and EFF intend to contend that the telecom immunity provisions of the Act are unconstitutional, and there are numerous grounds that enable a persuasive case to be made. This is a battle, both legally and politically, that is far from over.
Earlier in the month, the Washington Times published a story about the EMD bracelet that the TSA supposedly expressed interest in deploying for every air traveler to wear. The pros to wearing this bracelet: speeding through security, as the bracelet would contain all of your flight info and personal information, and have GPS-like capability that would be able to track both you and your luggage. Nifty! Even more surveillance when you travel!
But the con is a mighty big one: EMD stands for "electro-muscular disruption." See, that bracelet would have the ability to immobilize a person for several minutes via a shock delivered by a flight attendant or air marshal. The reasoning behind this: if there’s a hijacking situation onboard the plane, and the terrorist conveniently had not yet taken off the bracelet, the terrorist would be instantly immobilized via bracelet, his nefarious plan thwarted. Easy-breezy.
Now you’re thinking: "Whaaat? They can’t be serious." There is some dispute over whether the TSA was actually considering this. On the TSA blog, they flat-out deny it. But CBS insists they were, and points to two letters, authenticated by a TSA spokesman, from a TSA official to the bracelet’s R&D firm, expressing interest in the bracelet.
But is it really so far-fetched? The security agencies have already shown a complete willingness to wiretap our conversations, taking away our fundamental right to privacy, and thus controlling what we say. Physical control of Americans would be the next logical step.
In any case, as Jay Stanley of our Technology and Liberty Project puts it:
This bracelet idea is the logical culmination of the impulse behind many security policies, which is to place everyone under the complete control of the authorities. The bracelet concept is to control what the concept of "Big Brother" is to surveillance.
And here’s what former TSA employee and air marshal Jeffrey Denning told CBS when asked if he thought the TSA was really considering using the bracelets for all air passengers:
"At first I think "No!" Denning answered. "But then again I worked for three years for the TSA…and I’ve seen some outrageous things. So I wouldn’t put it past them," Denning said.
Shocking, ain’t it?
When it comes to China, the Olympics and surveillance, OpenLeft’s Daniel DeGroot reminds us of a very good point: When it comes to privacy safeguards, China, along with the United States, the U.K. and Russia, are "black"—meaning, the worst of the worst— on Privacy International’s map of the world’s surveillance societies.
We enumerated back in January the Bush administration policies that won us this dubious distinction.
For those of you who are heading to China for some good, old-fashioned fun (under the watchful eyes of the thousands surveillance cameras the Chinese government has installed, for your and the athletes’ safety, of course), The New York Times has collected the numerous handy guides for journalists covering the human rights situation in China. They’re intended for journos, but are useful for anyone who wishes to communicate—or blog—under the radar (so to speak).
Two of the ACLU’s brightest stars on privacy and law enforcement, Jay Stanley and Mike German, wrote a great report last year entitled "What’s Wrong with Fusion Centers?" that outlined, well, what’s wrong with fusion centers. Fusion centers — also known as one-stop shopping for identity thieves — were brought about in a post-9/11 effort to get federal and local law enforcement talking to each other.
Of course we want law enforcement sharing truly relevant information. But hoarding information like medical records, tax information, credit scores, etc. is effectively throwing more hay onto an already massive stack and that won’t make us safer.
Fusion centers, why do we distrust you so? Let me count the ways:
- Ambiguous lines of authority. Who is the boss of you exactly? So many jurisdictions and no clear lines of authority make us nervous.
- Private Sector Participants. You’re BFF with those guys. Using private-sector companies and corporations to get information about me makes me worry about who has access to that information. And, frankly, it only makes me like you less.
- Military Participation. Ever hear of Posse Comitatus?
- Data Fusion = Data Mining. A lot of hay means a lot of ways to sift through that hay and a lot of hay sifters sifting through that hay. Listen. Bottom line — enough with the hay. You are data mining. Knock it off.
- Excessive Secrecy. You keep telling me to trust you baby, but you’re always keeping secrets. Without oversight and uniform guidelines that means no real rules and that doesn’t work when you’ve got our information at your fingertips.
In fact, it has already resulted in information theft at Camp Pendleton, Calif.. Check out that link then tell me you’re going to sleep ok tonight knowing police officers and military personnel conspired to steal personal information, transferred it across country and housed in a storage locker in Manassas, Va. A storage locker in Manassas…
Some of you may have heard of the great work done by our Maryland affiliate in the realm of domestic spying. After filing a Freedom of Information Act lawsuit, our colleagues in Maryland received documents outlining the infiltration of nonviolent peace groups and anti-death penalty groups by police officers. Gross. (P.S. Virginia, if you wanted to file your own FOIA on fusion centers you’re too late. Kthxbai!!!!)
Here’s the creepiest part. Fusion centers aren’t just a mystery to us, they’re a mystery to the people running them, the people working in them and the people’s whose information is stored within them. Forget about the left hand, the right hand doesn’t know what any other part of the body is doing. There needs to be strict oversight. There need to be structured, uniform and comprehensive guidelines that protect our sensitive information. Or we’ll likely find it in a storage locker in Manassas.
Mood lighting. Soft music. Relax and kick off your shoes—someone is about to peek beneath your clothes. No, you aren’t at the honeymoon suite yet—you’re still stuck at the airport security checkpoint.
The Transportation Security Administration (TSA) is adopting some "calming" techniques to make you relaxed for their ever-increasing security procedures. My latest Civil Discourse comic goes through some of features at the Indianapolis Airport that were designed with the help of psychologists to create peaceful acquiescence in passengers.
Besides making security checks a relaxing vacation destination of their own, they seek to normalize full-body scanners that make sure that really isn’t a bazooka in your pants. In case there is any doubt the TSA would like all airports to operate this way, they are calling it a "Checkpoint of the Future."
The IndyStar reports the "TSA will be looking for people who aren’t calm." A stranger having a quick look at your genitals. Who wouldn’t be calm?
Of course, you can opt for a good old fashioned pat-down if prefer. (And who doesn’t?) The naked machine isn’t mandatory…yet. So calm down. OR ELSE.
It’s time to get healthcare into the 21st century (again.) For the third year in a row, Congress is debating the merits of a health IT bill, HR 6357, to promote faster adoption of electronic medical records. See the CQ article on HR 6357.
This year’s health IT bill just approved by the House Energy and Commerce Committee has a clever name, PRO (TECH)T. That’s short (or long, depending on where you stand) for Protecting Records, Optimizing Treatment, and Easing Communication through Healthcare Technology Act of 2008.
Based on the name, protection would seem to be a big part of the bill. And that make sense. One of consumers’ biggest concerns when it comes to the conversion from paper to electronic health is medical privacy. People are starting to realize there is a growing secondary market for electronic health records - that does not include treatment, bill pay or reimbursement. Many businesses who support the PRO(TECH)T bill intend to data mine patient records and create new revenue streams with no clear patient benefit.
So, actually, in PRO(TECH)T protection comes up short. During yesterday’s Energy and Commerce Committee hearing, Rep. Ed Markey (D-Mass.) said it best: the bill mentions privacy 22 times but does not define it.
We know what really happened. With hundreds of competing lobbyists waiting in the wings, perhaps some actually breathing down the necks of bill drafters, no one could agree on something acceptable.
We think the definition is simple: medical privacy is defined as patient control of electronic health records.
Fortunately, yesterday some real progress was made toward that goal.
Chairman John Dingell (D-Mich.) coaxed his Michigan colleague Republican Mike Rogers to withdraw a lobbyist-driven proposal to alter the compromise bill. Ranking member Joe Barton (R-Texas), who himself survived a horror story of health privacy invasion, ticked off a list of recent improvements to the bill including tightening existing patient protections, boosting penalties for those who steal information, and keeping businesses accountable. Barton assured everyone that the committee’s “good faith compromise” kept a mindful eye to protect privacy.
Rep. Lois Capps (D-Calif.) acknowledged that the privacy groups have a point (Thanks Rep. Capps!). Later Rep. Tim Murphy (R-Pa.) offered a great Pittsburgh hospital example where electronic records security protections actually led to 16 snoops being fired from a hospital treating celebrities. With paper files, there was no way to track unauthorized access, he said. Now hospital databases can warn of penalties and sound the alert when a system is breached.
During the hearing Rep. Markey proved why he is one of privacy’s biggest defenders in the House. He reminded us that it remains crucial to protect patient information from prying eyes and hackers all around the world. We cannot put patients’ personal secrets at risk, he cautioned, by offshoring them for processing to countries that don’t share American privacy and security values.
Rep. Markey feared the bill’s privacy protections could still be diluted. The bill, he noted, does not make it clear that individuals have a right to make personally identifiable information private. But Chairman Dingell promised him and others that bill language could be clarified before the House voted.
So we, too, will keep a mindful eye on it and listen to the House Ways and Means Subcommittee on Health hearing today.
Today’s IndyStar features a story called "Airport’s calming features should make for serene security checks," and describes the Indianapolis International Airport’s efforts to smooth the way through security checkpoints for harried travelers. They include "mural of flowers, blue-lit panels and ambient music." Similar efforts are underway at the Baltimore-Washington airport. Ahh… Nothing like some ambient music to forget that you’re about to confront…the naked machine.
The naked machine is a full-body, virtual strip-search that shows TSA officials what can only be described as too much information. The Indianapolis airport has the millimeter-wave machine that reveals images like these. (I was disconcerted to see that the Delta terminal at JFK has the backscatter machines on my way to Netroots.) Must security really entail TSA officials seeing your colostomy bag, evidence of a mastectomy, or the size of your breasts or genitals?
"They create a very graphic picture of the naked body," said Barry Steinhardt, director of the ACLU’s technology and liberty project. "I don’t believe Americans should be subjected to a virtual strip-search for the privilege to board a plane."
Now, to be fair, you don’t have to subject yourself to these super-invasive machines. You can opt for a grope, pat-down instead.
At least in Indianapolis and Baltimore, Enya will play in the background to soothe your frazzled, exposed nerves.
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