Category Archives: Due Process
Following Alabama’s lead, lawmakers in the Oklahoma House of Representatives voted overwhelmingly to approve popular legislation protecting private-property rights and banning a controversial United Nations “sustainable development” scheme known as Agenda 21, which critics say represents a serious threat to American values and liberty. If approved by the Senate as expected, the law would also prohibit state and local governments from working with the UN or its affiliates to implement any sort of “international law” that violates the U.S. or Oklahoma constitutions.
The bill, H.B. 1412, was passed in the state House last week on a bipartisan vote, with a Republican-led coalition of 67 supporting the legislation against 17 Democrats who opposed the measure. It originally passed out of the States’ Rights Committee in late February and is now in the state Senate, where a broad coalition of activists — supporters of national sovereignty, private property, the Constitution, individual liberty, Tea Party groups, and more — is working to ensure its passage.
Of course, Oklahoma is just the latest state to take action against the highly controversial UN plan, which calls for a transformation of human civilization under the guise of promoting so-called “sustainability.” In May of last year, Alabama became the first state to officially ban UN Agenda 21 after a law to protect private property and due process rights was signed by Gov. Robert Bentley. The wildly popular bi-partisan legislation was approved unanimously in both houses of the state legislature.
Before that, lawmakers on both sides of the aisle in Tennessee adopted a resolution blasting the dubious UN agenda as a radical “socialist” plot at odds with individual liberty, private-property rights, and the U.S. Constitution. Lawmakers in Kansas followed suit. Numerous other state governments, under heavy pressure from activists across the political spectrum, are also working to ban the “sustainable development” scheme in their jurisdictions. City and county governments, meanwhile, are taking action to protect residents, too.
In Oklahoma, lawmakers said legislation was needed to defend citizens and their rights from the UN scheme as well. Despite having never been ratified by the U.S. Senate as required by the Constitution, supporters of the bill explained, officials at all levels — especially the federal executive branch, mostly using unconstitutional “grants” and decrees — have been quietly working to implement the controversial 1992 international agreement across America.
“House Bill 1412 is a short little bill, barely two pages long; it deals with a big topic though, protecting personal property rights,” noted Republican Rep. Sally Kern, who sponsored the legislation in the Oklahoma House.
- Oklahoma Bill Would Nullify Agenda 21 (tenthamendmentcenter.com)
- Alabama & Oklahoma Ban NWO Agenda 21 Banking Scheme: States At War With Their Over Taken Federal Corporation! (politicalvelcraft.org)
- Oklahoma House Passes Obamacare Nullification Bill (godfatherpolitics.com)
President Barack Obama has the authority to use an unmanned drone strike to kill US citizens on American soil, his attorney general has said.
Eric Holder argued that using lethal military force against an American in his home country would be legal and justified in an “extraordinary circumstance” comparable to the September 11 terrorist attacks.
“The president could conceivably have no choice but to authorise the military to use such force if necessary to protect the homeland,” Mr Holder said.
His statement was described as “more than frightening” by Senator Rand Paul, a Republican from Kentucky, who had demanded to know the Obama administration’s position on the subject.
“It is an affront the constitutional due process rights of all Americans,” said Mr Paul, a 50-year-old favourite of the anti-government Tea Party movement, who is expected to run for president in 2016.
Mr Holder wrote to Mr Paul after the senator threatened to block the appointment of John Brennan as the director of the CIA unless he received answers to a series of questions on its activities.
Mr Paul on Wednesday evening took to the floor of the Senate to launch an old-fashioned filibuster in an effort to delay a vote on the approval of Mr Brennan for CIA director. “I won’t be able to speak forever, but I’m going to speak as long as I can,” he said, before embarking on several hours of criticism of Mr Obama’s compliance with the US constitution.
Mr Obama has been sharply criticised for the secrecy surrounding his extension of America’s “targeted killing” campaign against al-Qaeda terrorist suspects using missile strikes by unmanned drones.
The secret campaign has killed an estimated 4,700 people in Pakistan, Yemen and Somalia. A quarter are estimated to have been civilians prompting anger among human rights campaigners.
According to research by the Bureau of Investigative Journalism, drone strikes killed between 474 and 881 civilians – including 176 children – in Pakistan between 2004 and last year.
Criticism within the US has focused on the implications for terror suspects who are also US citizens, after Anwar al-Awlaki, a radical cleric born and educated in the US, was killed in Yemen in 2011.
The administration claims it has the legal authority to assassinate Americans provided that they are a senior al-Qaeda operative posing an imminent threat and it would be “infeasible” to capture them.
This justification emerged only last month in a leaked memo from Mr Holder’s department of justice. Mr Obama this week agreed to give Congress his full set of classified legal memos on the targeting of Americans.
Civil liberties campaigners accuse the president and his aides of awarding themselves sweeping powers to deny Americans their constitutional rights without oversight from Congress or the judiciary.
- Eric Holder clarifies policy on drone attacks on U.S. soil (reuters.com)
- Flashback: Obama Says Waterboarding Is Torture …(But He’ll Drop a Drone Bomb On Your Head) (thegatewaypundit.com)
- Sen. Rand Paul: I’ll end filibuster once Obama says no to drone strikes in the U.S. (rawstory.com)
- America is shamed that only Rand Paul is talking about drone executions | Amy Goodman (guardian.co.uk)
via Washington Times
Almost exactly 24 hours after Mr. Paul began his information-seeking filibuster against John O. Brennan, Sens. John McCain and Lindsey Graham took to the Senate floor to denounce his demands and say he was doing a “disservice” to the debate on drones.
“The country needs more senators who care about liberty, but if Mr. Paul wants to be taken seriously he needs to do more than pull political stunts that fire up impressionable libertarian kids in their college dorms. He needs to know what he’s talking about,” said Mr. McCain, Republicans’ presidential nominee in 2008 — who topped Mr. Paul’s father, former Rep. Ron Paul, in that year’s primary.
And where Democrats praised Mr. Paul for using Senate rules properly to launch a filibuster, Mr. McCain said it was an abuse of rules that could hurt the GOP in the long run.
“What we saw yesterday is going to give ammunition to those who say the rules of the Senate are being abused,” the Arizona Republican said.
Mr. Paul said he was filibustering to get the administration to affirm it won’t kill non-combatant Americans in the U.S. — and his effort was joined by more than a dozen other senators who said they, too, supported his effort to get answers.
Mr. Graham said asking whether the president has the power to kill Americans here at home is a ludicrous question.
“I do not believe that question deserves an answer,” Mr. Graham said.
Mr. Graham and Mr. McCain led a Republican delegation that held a private dinner with President Obama on Wednesday, as Mr. Paul was holding the floor with help from other GOP colleagues.
Mr. McCain even joked about Mr. Graham’s “behavior” at the dinner.
“He was on his best manners and everyone was impressed,” Mr. McCain said.
- McCain And Graham’s @SenRandPaul Temper Tantrum (thecampofthesaints.org)
- IT’S WAR: John McCain And Lindsey Graham Are Tearing Into Rand Paul Right Now On The Senate Floor (businessinsider.com)
- Rush to Rand: ‘You’re a hero’ (wnd.com)
- McCain, Graham blast Paul filibuster (politico.com)
- Moronic: Sen. McCain blasts Sen. Paul’s filibuster as ‘political stunt,’ ‘ridiculous’ (twitchy.com)
- Rand Paul’s Drone Filibuster Sparks GOP Civil War (tpmdc.talkingpointsmemo.com)
Sierra Adamson interviews Chris Hedges at the hearing for the second court of appeals in the Hedges v Obama NDAA lawsuit. Hedges explains what has happened in the lawsuit to date, the next steps and what he sees in America’s upcoming future.
Citing week-old Supreme Court precedent, the President Barack Obama administration told a federal judge Wednesday that it should quash a federal lawsuit accusing the government of secretly siphoning Americans’ electronic communications to the National Security Agency without warrants.
The San Francisco federal court legal filing was in response to U.S. District Judge Jeffrey White’s written question (.pdf) to the government asking what to make of the high court’s Feb. 26 decision halting a legal challenge to a once-secret warrantless surveillance project that gobbles up Americans’ electronic communications — a program that Congress eventually legalized in 2008 and again in 2012.
In that case, known as Clapper, the justices ruled 5-4 that the American Civil Liberties Union, journalists and human-rights groups that sued to nullify the FISA Amendments Act had no legal standing to sue. The justices ruled (.pdf) the plaintiffs submitted no evidence they were being targeted by that law.
The FISA Amendments Act authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”
- Feds Demand Dismissal of Dragnet-Surveillance Challenge (wired.com)
- It’s Official, the Fourth Amendment is Dead (usahitman.com)
- In ‘Disturbing Decision’ Supreme Court Rejects Challenge of Dragnet Surveillance of Americans (commondreams.org)
- Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains (secretsofthefed.com)
Sen. Rand Paul’s filibuster will inevitably fail at its immediate objective: derailing John Brennan’s nomination to run the CIA. But as it stretches into its sixth hour, it’s already accomplished something far more significant: raising political alarm over the extraordinary breadth of the legal claims that undergird the boundless, 11-plus-year “war on terrorism.”
The Kentucky Republican’s delaying tactic started over one rather narrow slice of that war: the Obama administration’s equivocation on whether it believes it has the legal authority to order a drone strike on an American citizen, in the United States. Paul recognized outright that he would ultimately lose his fight to block Brennan, the White House counterterrorism chief and architect of much of the administration’s targeted-killing efforts.
But as his time on the Senate floor went on, Paul went much further. He called into question aspects of the war on terrorism that a typically bellicose Congress rarely questions, and most often defends, often demagogically so. More astonishingly, Paul’s filibuster became such a spectacle that he got hawkish senators to join him.
“When people talk about a ‘battlefield America’,” Paul said, around hour four, Americans should “realize they’re telling you your Bill of Rights don’t apply.” That is a consequence of the September 2001 Authorization to Use Military Force that did not bound a war against al-Qaida to specific areas of the planet. “We can’t have perpetual war. We can’t have a war with no temporal limits,” Paul said.
This is actually something of a radical proposition. When House Republicans attempted to revisit the far-reaching authorization in 2011, chief Pentagon attorney Jeh Johnson conveyed the Obama administration’s objections. Of course, many, many Republicans have been content with what the Bush administration used to call a “Long War” with no foreseeable or obvious end. And shortly before leaving office in December, Johnson himself objected to a perpetual war, but did so gingerly, and only after arguing that the government had the power to hold detainees from that war even after that war someday ends.
Well everybody, wave goodbye to your 4th amendment right . . . buh bye!
The supreme court has decided a dog is the only thing standing between you and the (now defunct) 4th amendment of the (now defunct) constitution that used to protect us against unreasonable searches and seizures.
Now if a cop wants to search your car or your person, all s/he needs is a dog and to utter the magic words “My dog alerted.” That’s it. A dog is all the probable cause the law needs to search you and your person.
What’s next? Deciding guilt or innocence using a magic 8 ball?
The supreme court made this decision despite some drug-sniffing dogs being proven wrong more than half the time, no mandate that police be required to video record the dog encounter and any doggy indications of a “hit” or “alert” and the police not being required to track the historic accuracy of their dogs.
The dog that ratted you out may have been wrong 75% of the time in past encounters, but that doesn’t matter because, as (in)justice kagan so brilliantly put it, “the dog may not have made a mistake at all,” instead it “may have detected substances that were too well hidden or present in quantities too small for the officer to locate.”
See? Dogs aren’t wrong, us humans just can’t corroborate their unerring accuracy.
So a dog is called, you get searched and/or arrested and you don’t have any way to cross-examine a dog or check the dog’s record of hits and misses or even review a video recording of your encounter with the dog. It’s just your word against a dog and a cop.
Your 4th amendment rights have just gone to the dogs, literally. Good doggy. Shi**y supreme court. We are f**ked.
Today the U.S. Supreme Court unanimously ruled that “a court can presume” an alert by a drug-sniffing dog provides probable cause for a search “if a bona fide organization has certified a dog after testing his reliability in a controlled setting” or “if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.” The justices overturned a 2011 decision in which the Florida Supreme Court said police must do more than assert that a dog has been properly trained. They deemed that court’s evidentiary requirements too “rigid” for the “totality of the circumstances” test used to determine when a search is constitutional. In particular, the Court said it was not appropriate to demand evidence of a dog’s performance in the field, as opposed to its performance on tests by police. While the Court’s decision in Florida v. Harris leaves open the possibility that defense attorneys can contest the adequacy of a dog’s training or testing and present evidence that the animal is prone to false alerts, this ruling will encourage judges to accept self-interested proclamations about a canine’s capabilities, reinforcing the use of dogs to transform hunches into probable cause.
Myth #1: Field performance is a misleading indicator of a dog’s reliability. When a dog alerts and no drugs are found (as happened twice in this case), “the dog may not have made a mistake at all,” Kagan says. Instead it “may have detected substances that were too well hidden or present in quantities too small for the officer to locate,” she suggests. “Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.” This is a very convenient, completely unfalsifiable excuse for police and prosecutors. But probable cause is supposed to hinge on whether there is a “fair probability” that a search will discover evidence of a crime, and the possibility that dogs will react to traces of drugs that are no longer present makes them less reliable for that purpose.
Myth #2: Police department testing is the gold standard by which a dog’s reliability should be judged. Kagan says the uncertainties of the real world “do not taint records of a dog’s performance in standard training and certification settings,” because “the designers of an assessment know where drugs are hidden and where they are not.” That is precisely the problem when the designers are the dog trainers, as is usually the case, because they may deliberately or subconsciously indicate the locations of the drugs. Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs’ olfactory capabilities, observes: “Typically if a cop says, ‘I train the dog every week,’ he’s hiding things and then going around and finding the things he’s hidden. Putting something out, you as the handler, then taking the dog through, you are going to seriously skew the training; you’re going to cue. You can’t help it; you know exactly where the damned thing is.”
- SCOTUS Approves Search Warrants Issued by Dogs (reason.com)
- Court says police don’t have to prove dog training (sacbee.com)
- Court says police don’t have to prove dog training (miamiherald.com)
- Supreme Court Rules On Police Dog Sniffs (huffingtonpost.com)
- Opinion recap: Trust the police dog (scotusblog.com)
- Supreme Court Says Drug-Dog Alerts are ‘Up to Snuff’ (wired.com)
- Every drug dog has his day – in court; even Supreme Court (sacbee.com)
- Supreme Court Won’t Raise Standards For Drug-Sniffing Dogs (thinkprogress.org)
- Court says police don’t have to prove dog training (seattletimes.com)
VIA Mail Online
The New York Police Department, with help from the Pentagon, is testing a new technology that will allow officers to detect concealed weapons using a handheld device.
The device, known as Terahertz Imaging Detection, would operate as a kind of X-ray scanner, measuring the energy radiating from a body up to 16 feet away and detecting anything blocking that radiation, such as a gun.
‘This technology has shown a great deal of promise as a way of detecting weapons without a physical search,’ Police Commissioner Ray Kelly said of the device, which is still being developed.
He said the device would only be used under ‘reasonably suspicious circumstances.’
The technology is being fine-tuned with the help of the Department of Defense counter-terrorism unit, which is interested in using the technology to help thwart terror attacks.
‘We have involved our attorneys as we go forward with this issue,’ Kelly said, acknowledging the privacy issues that will arise as a result of the technology.
The device could be mounted in a squad car, Kelly said, noting that making the technology portable was a priority of his.
- NYPD tests technology to detect concealed weapons- California school district gets high-powered rifles (foxnews.com)
- NYPD testing device to secretly scan New Yorkers for guns… (nydailynews.com)
- NYPD testing device to secretly scan New Yorkers for guns (blacklistednews.com)
- NYPD to Receive ‘T-Ray’ Vision to Detect Concealed Firearms (israelnationalnews.com)
- NYPD to use ‘T-Ray’ to detect concealed guns (wnd.com)
Robert J. Burns, a 55-year-old retired nurse who lives in St. Louis, was returning from a trip to the West Coast last October when his white Nissan pickup truck was pulled over on Interstate 40 near Amarillo. Burns was carrying a 12-foot aluminum fishing boat on top of the truck, and he had been struggling against high winds that kept pushing him toward the shoulder. The sheriff’s deputy who stopped him thought he might be drunk.
“He asked me to step out and come back to his car,” Burns says, “and that’s when I noticed the dog in the back seat, a yellowish Lab. I explained that I hadn’t been drinking and my getting on the shoulder of the road was strictly from the wind. He said that he was going to write me a warning, and I said, ‘OK, that’s fine.’ He asked me if I had any drugs in the car. I said, ‘No, sir, I don’t do drugs, and I don’t associate with people who do.’ He asked me would I mind if he searched my vehicle, and I said, ‘Well, yes, I would mind if you searched my vehicle.’ ”
But thanks to the U.S. Supreme Court, the deputy did not have to take no for an answer. In the 2005 case Illinois v. Caballes, the Court declared that “the use of a well-trained narcotics-detection dog…during a lawful traffic stop generally does not implicate legitimate privacy interests.” So the deputy was free to walk his dog around Burns’ truck. “He got out with this dog and went around the car, two or three times,” Burns says. “He came back and said the dog had ‘passively alerted’ on my vehicle.” Burns, who is familiar with drug-detecting dogs from his work as an M.P. at Edwards Air Force Base in the 1970s, was puzzled. Properly trained police dogs are supposed to indicate the presence of drugs with a clear, objectively verifiable signal, such as sitting down in front of an odor’s source or scratching at it. Yet “the dog never sat down, the dog never scratched, the dog never did anything that would indicate to me that it thought there was something in there.”
The deputy and another officer who arrived during the stop nevertheless went through Burns’ truck for half an hour or so, reaching up into the boat, perusing his cargo, looking under the seats and the hood, examining the gas tank and the undercarriage. They found no trace of drugs, although they did come across the loaded pistol that Burns mentioned to them once it was clear they planned to search the truck.
That’s one way of looking at it. But even if you are neither a lawyer nor a super-libertarian, you might wonder 1) how often this sort of thing happens, 2) how it came to be that police can get permission from a dog to rifle an innocent man’s belongings, and 3) whether that state of affairs is consistent with the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” The answers, in brief, are 1) fruitless searches based on dog alerts happen a lot more often than commonly believed, 2) dogs acquired this authority with the blessing of credulous courts mesmerized by their superhuman olfactory talents, and 3) this dog license is hard to square with the Fourth Amendment, unless it is reasonable to trust every officer’s unsubstantiated claim about how an animal of undetermined reliability reacted to a person, a suitcase, a car, or a house.
MORE . . .
- How Accurate Are the Dogs that Send You to Jail? (zen-haven.com)
No narcotics, contraband found during searches, lawsuit says
The female Texas trooper who performed a roadside cavity search on two Irving women will be terminated according to the Department of Public Safety.
The two women from Irving are suing Trooper David Farrell, Trooper Kelley Helleson and the director of the Department of Public Safety for what they call an unconstitutional search without probable cause.
Department of Public Safety spokesman Tom Vinger says agency director Steve McCraw has made a preliminary determination to terminate Trooper Kelly Helleson. Vinger, in a statement Wednesday, said Helleson will have the opportunity to meet with McCraw before her firing is final.
Helleson and Trooper David Ferrell in December were put on paid suspension as the case awaits review by a Dallas County grand jury.
On July 13, while driving along State Highway 161, Angel Dobbs and her niece Ashley Dobbs were stopped for littering by Farrell. In the dashcam video released by the women and their attorney, Farrell can be heard telling the women they would both be cited for littering for throwing cigarette butts out of the car.
Farrell then returned to his cruiser and, in the video, can be heard calling female Trooper Helleson to the scene to search both women whom he said were acting weird.
While waiting for Helleson to arrive, Farrell asked Angel Dobbs to step out of the vehicle and began questioning her about marijuana use. In the video, the trooper is heard telling Dobbs he smelled marijuana coming from the vehicle while asking her several times how much pot was in the car.
After Helleson arrived, she can be seen in the dashcam video putting on blue latex gloves to conduct a search of both women. According to the lawsuit, when Angel Dobbs asked about the gloves, Helleson “told her not to worry about that.”
In the lawsuit, Dobbs said the trooper conducted the cavity search on the roadside, illuminated by the police car’s headlights, in full view of any passing motorists.
“This has been an eye-opening experience for me. I’ve never been pulled over, never searched like this. I was totally violated over there a few minutes ago… this is so embarrassing to me,” Angel Dobbs said on the video.
“I’ve never been so humiliated or so violated or felt so molested in my entire life,” Angel Dobbs told NBC 5.
MORE . . .
- Trooper to Be Terminated Over Roadside Cavity Search [W/ VIDEO] (secretsofthefed.com)
- Female Texas trooper in body search faces firing (star-telegram.com)
- Possible Termination For Trooper In Body Cavity Search (dfw.cbslocal.com)
- Texas set to ‘terminate’ trooper following roadside cavity searches (usnews.nbcnews.com)
- The State Trooper Who Performed a Roadside Cavity Search on Irving Women Has Been Fired (blogs.dallasobserver.com)
- Second trooper suspended for roadside cavity search in Texas (sott.net)
“Is terror going to raise a white flag?” Exactly. Somebody in our government must define victory in this (undeclared) war on an ideology. What does victory look like? How will we know when we are victorious? Without a definition of victory, this (undeclared) war will continue ad infinitum – an ongoing, never ending justification to infringe on more and more of our rights. Something is seriously wrong.
A secret audio recording of a stop-and-frisk in action sheds unprecedented light on a practice that has put the city’s young people of color in the NYPD’s crosshairs.
Via Truth Squad TV
- Kind NY Cop, Larry DePrimo, Helps Homeless Man And Goes Viral On The Net | THE JEENYUS CORNER (jeenyuscorner.com)
- NYPD Officer on the Rights of the Public to Film Cops (sgtreport.com)
- Queens District Attorney: ‘No Crime to Throw Whistle-Blower Cop in Psych Ward’ (aftermathnews.wordpress.com)
- There ARE Good Cops Out There: This Police Detective Wants More Cop Watch (sgtreport.com)
It’s become the email equivalent of separating church and state: work email is for official communications while private accounts are for personal — and sometimes inappropriate — messaging.
The FBI probe into Petraeus — which led to his resignation last Friday — serves as a reminder that even the most private emails sent on commercial online services among people using pseudonyms can be discovered and thrown into the harsh light of scrutiny.
Here are Gmail lessons to be learned from the Petraeus affair:
1. It’s not anonymous.
Petraeus and his biographer Paula Broadwell apparently took steps to protect their communication, such as using pseudonyms to set up an online service account and in communicating with each other. But FBI investigators were able to figure out some information about the account from looking at emails sent from the account to another party. Reportedly this is what led authorities investigating threatening emails to Tampa socialite Jill Kelley from Broadwell.
“Who you are saying it to and where you are saying it from has the least protection under the law,” said Chris Soghoian, principal technologist at the ACLU. “A warrant is needed to find out what you are saying.”
Internet service providers and most websites keep complete records of the Internet Protocol addresses of those who use their services for 18 months, and then slightly blurred records of IP addresses after 18 months. Investigators can obtain that information under the Electronic Communications Privacy Act as long as they have reasonable grounds to believe that it is relevant to an ongoing criminal investigation — less than the probable cause needed to secure a warrant. In the Petraeus case, the FBI reportedly got the necessary court clearances.
The only way that people can use pseudonymous webmail accounts safely is via an anonymizing service like Tor, said Peter Eckersley, technology projects director for the Electronic Frontier Foundation. Tor is installed on a computer and reroutes website visits, instant messages and other communications to other Tor users so it is not possible to identify a single computer, sort of like hiding in a crowd.
2. Government requests for access are increasing and Google and other services play ball.
Google reported Tuesday that law enforcement and courts in the United States made nearly 8,000 requests for user information in the first half of 2012 from all of Google’s products — including Gmail, search, Google Docs, etc. The number of requests from the American law enforcement alone jumped 26 percent from the previous six months, when 6,321 requests were made.
Government officials wanted information on 16,281 accounts, Google said, and Google complied roughly 90 percent of the time.
The report shows governments around the world not only wanted more data for law enforcement purposes but also increased requests to Google to remove content.. “Government surveillance is on the rise,” Dorothy Chou, a senior policy analyst at Google, wrote in a blog post announcing the report.
3. You’re not in cyberspace.
A person’s physical location when sending an email can often be pinpointed from the email they send. Email metadata contains IP addresses of the computers and servers they come in contact with, as well as the unique number associated with the device that sent the emails. Sometimes, the traceable IP of the sender’s device is visible in a sent email — email services such as Yahoo and others reveal information about the sending computer, while messages sent from Gmail’s Web interface do not reveal the information about the sending computer, privacy experts say. Even if it isn’t visible, investigators can obtain it with the use of a subpoena or court order, and determine other accounts accessed from the same location.
MORE . . .
- 5 Gmail lessons from Petraeus affair (politico.com)
- How metadata brought down CIA boss David Petraeus (newscientist.com)
- Gmail Location Data Led FBI to Uncover Top Spy’s Affair (wired.com)
- How CIA Director David Petraeus’s Affair Was Traced Through Email (and How to Keep It From Happening to You) (lifehacker.com)
- David Petraeus scandal: The silliness of using Gmail for your affair (telegraph.co.uk)
The unfolding scandal that led to the resignation of Gen. David Petraeus, the Director of the Central Intelligence Agency, started with some purportedly harassing emails sent from pseudonymous email accounts to Jill Kelley. After the FBI kicked its investigation into high gear, it identified the sender as Paula Broadwell and, ultimately, read massive amounts of private email messages that uncovered an affair between Broadwell and Petraeus (and now, the investigation has expanded to include Gen. John Allen‘s emails with Kelley). We’ve received a lot of questions about how this works—what legal process the FBI needs to conduct its email investigation. The short answer? It’s complicated.
The Electronic Communications Privacy Act (ECPA) is a 1986 law that Congress enacted to protect your privacy in electronic communications, like email and instant messages. ECPA provides scant protection for your identifying information, such as the IP address used to access an account. While Paula Broadwell reportedly created a new, pseudonymous account for the allegedly harassing emails to Jill Kelley, she apparently did not take steps to disguise the IP number her messages were coming from. The FBI could have obtained this information with just a subpoena to the service provider. But obtaining the account’s IP address alone does not establish the identity of the emails’ sender.
Broadwell apparently accessed the emails from hotels and other locations, not her home. So the FBI cross-referenced the IP addresses of these Wi-Fi hotspots “against guest lists from other cities and hotels, looking for common names.” If Broadwell wanted to stay anonymous, a new email account combined with open Wi-Fi was not enough. The ACLU has an in-depth write-up of the surveillance and security lessons to be learned from this.
After the FBI identified Broadwell, they searched her email. According to news reports, the affair between Petraeus and Broadwell lasted from November 2011 to July 2012. The harassing emails sent by Broadwell to Jill Kelley started in May 2012, and Kelley notified the FBI shortly thereafter. Thus, in the summer of 2012, when the FBI was investigating, the bulk of the emails would be less than 180 days old. This 180 day old dividing line is important for determining how ECPA applies to email.
Compared to identifying information, ECPA provides more legal protection for the contents of your email, but with gaping exceptions. While a small but increasing number of federal courts have found that the Fourth Amendment requires a warrant for all email, the government claims ECPA only requires a warrant for email that is stored for 180 days or less.
But as the Department of Justice Manual for searching and seizing email makes clear, the government believes this only applies to unopened email.
MORE . . .
- When Will our Email Betray Us? An Email Privacy Primer in Light of the Petraeus Saga (eff.org)
- Should E-mail Privacy be the Real Issue in the Petraeus Affair? (activistpost.com)
- How metadata brought down CIA boss David Petraeus (newscientist.com)
- 5 Gmail lessons from Petraeus affair (politico.com)
In a recent op-ed published in Jurist, St. John’s University School of Law student Christopher Elsee described a scenario he believes threatens the civil rights of his fellow citizens.
Imagine you have just written a check to an organization that sends mechanical engineering textbooks to students in Afghanistan or Iraq. Now further imagine that you have been engaged in this practice for well over a decade because you are interested in helping individuals in developing countries to improve their technical knowledge, with the hopes of enabling them to better themselves. Are you supporting terrorists? According to a proposed piece of legislation, you may very well be.
The legislation Elsee mentions is the Terrorist Expatriation Act. This bill, proposed in 2010 by Senator Joe Lieberman (I-Conn.), would strip any American accused of terrorism of his citizenship. This would place the suspect outside of the jurisdiction of the U.S. Constitution’s Article III courts and assign the trial on his alleged crimes to a military tribunal.
As Elsee explains:
The act adds offenses such as providing material support to foreign terrorist organizations, engaging in or purposefully and materially supporting hostilities against the US or any country engaged in hostilities alongside the US or providing direct operational support to the US. Another section of the act explains that “material support or resources” means, among other things as the list goes on, property, services, training, expert advice or assistance, communications equipment and facilities.
This illustrates why the person in Elsee’s hypothetical would face expatriation.
A central point of the act not specifically addressed in Elsee’s article is the provision specifying the burden of proof in a case brought under its authority.
Under the Terrorist Expatriation Act, anyone stripped of his citizenship could appeal his expatriation to a federal court, where the federal government would have to demonstrate by “a preponderance of the evidence” that the accused committed the offense with the purpose of relinquishing his citizenship.
An online legal dictionary defines this standard of proof as “just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true.” In the taxonomy of burdens of proof, preponderance of the evidence is much easier to prove than “beyond a reasonable doubt,” for example, which is defined by that same dictionary as “no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.”
MORE . . .
- Will Americans Be Stripped of Citizenship Based on Accusation? (dprogram.net)
- How Far Will American Congress Go to Crush Free Speech and Political Dissonance? (bonjupatten.wordpress.com)
- Will Americans Be Stripped of Citizenship Based on Accusation? (tenthamendmentcenter.com)
- Texas NDAA Nullification Bill Includes Criminal Charges for Federal Agents (blacklistednews.com)
- Texas NDAA Nullification Bill Includes Criminal Charges for Federal Agents (tenthamendmentcenter.com)
Carlos Miller was arrested for filming the police. Resisting the pressure to accept a “deal,” he risked more prison time simply by insisting on his right to a jury trial. According to Miller, the prosecutor told the jury that Miller did not behave like a “real journalist” because a “real journalist” would have obeyed all police requests and orders. Miller’s attorney responded to that argument with the following:
“In this country, when you’re a journalist, your job is to investigate.
Not to be led by your hand where the police want you to see, so they can hide what they don’t want you to see.
No, when you’re a journalist, a real journalist, it’s your job to go find the truth. As long as you are acting within the law as Mr. Miller was, you have the right to demand and say, ‘no, I’m not moving, I have the right to be here. This is a public sidewalk, I have the right to be here.’
He did his job. He has the right to do his job the way he sees fit. It’s not up to these prosecutors to tell anybody, much less an independent journalist, how to do their job. It’s not up to the police officers, it’s not up to a judge or the president.
In this country, journalists do their job the way they see fit.
What’s he describing is Cuba. What he’s describing is a communist country. The government says you can’t be here because I say you can’t be here.
And it’s infuriating to me that a prosecutor would try to get up here and try to convince you that just because a police officer says something, that he has to bow his head and walk away.
That is a disgrace to the Constitution of this country.”
Congratulations to Miller and his attorneys. More info, including video from the trial, click here.
- Jury Says Journalist Arrested While Videotaping Police Is Not Guilty (libertycrier.com)
- *** Not Guilty *** (photographyisnotacrime.com)
- Texas woman charged with felony for posting police officer’s photo on Facebook (rt.com)