Catching up - privacy/secrecy

This is not going to really be analysis, more a compilation of items I've collected of late that I have not taken the opportunity to post. They are in no particular order of date or importance.

- This is old, but still important. Back in January 2009, the government issued a grand jury subpoena to the online news site Indymedia.us demanding "all IP traffic to and from" the site for a particular date, including "IP addresses, times, and any other identifying information." That is, the feds wanted any available identifying information about everyone who visited the site that day (which is beyond what the law allows) and they also ordered the site's proprietor to keep the demand secret (which is also beyond what the law allows). At one point, she was threatened with prosecution for obstruction of justice if she revealed the subpoena.

Fortunately, instead of meekly submitting the proprietor went to the Electronic Frontier Foundation, which shot the whole thing down and forced the government to back off. The point remains, however, how many other such subpoenas have gone out and have been complied with - including keeping them secret - because the recipients didn't realize they had an option or just weren't interested in trying?

- Speaking of "how many times," you may know that all cell phones sold now have a GPS capability so if you dial 911 from an unknown location, rescuers can find you. What you may not know is that Sprint has set up a web interface for law enforcement agencies, which can then locate any Sprint customer in real time knowing only their phone number.

In its first year of operation, the system processed eight million such requests covering thousands of customers.

- Last month, the Supreme Court heard a case testing the limits of immunity from suits for prosecutors. The case involves Terry Harrington and Curtis McGhee, who spent 25 years in prison for killing a cop in Council Bluffs, Iowa - until evidence long hidden in police files resulted in them being freed.

The principal witness against the two at their trial had earlier fingered two other men, one of whom, it turned out, was in prison at the time of the crime. The "witness" also got the site of the shooting wrong and gave three different accounts of the type of gun used. And he failed a polygraph.

Police and prosecutors knew all this and more - including evidence pointing to a different suspect - but still prosecuted Harrington and McGhee. Notably, the other suspect was white and the two men are black.

In 2003, the Iowa Supreme Court overturned the convictions, calling the star witness a "liar and perjurer." All the prosecution witnesses have recanted.

McGhee agreed to a plea deal in exchange for time served; Harrington refused and all charges were dropped. Under Iowa law, there is no practical way for the men to obtain compensation for those 25 years, so they sued prosecutors and police in federal court for violation of constitutional rights.

Prosecutors typically are shielded from suits for what they do at trial, for fear that they would be subjected to a flood of lawsuits by anyone they ever got convicted. But the prosecutors in the murder case, who are the defendants in this suit, are claiming far more: They are claiming that protection also covers the investigation and the filing of charges before any trial, that prosecutors are absolutely immune from any suit, period.

Even if a prosecutor files charges against a person knowing that there is no evidence of his guilt, says [Stephen] Sanders[, the defendents' lawyer], "that's an absolutely immunized activity."

What they are arguing - and I mean literally and in so many words - is that "there is no freestanding right not to be framed."

That well deserves the description "shocks the conscience." If it doesn't strike you that way, I invite you to imagine what it would/could mean if SCOTUS agrees.

- Under the "It's way too late to be surprised" heading comes news that Barack Obama has convinced Congress to extend key components of the Patriot Act which are set to expire at the end of the year. These are the same provisions he opposed before those powers were his, not someone else's.

The three provisions in question 1)allow warrantless wiretapping of phones and emails, 2)authorize seizure of private records from credit reporting companies, banks, internet service providers, and libraries, and 3)loosen the meaning of what constitutes "material support" to terrorists.

In 2005, then-Senator Obama called such provisions "just plain wrong" and "a fishing expedition through every personal record or private document." Now they're vitally important, as Obama gulps down another plateful of the steaming pile Shrub left behind.

- The wealthy enclave of Tiburon, California has decided to

become the first U.S. city to install cameras to photograph the license plates of every car that enters and leaves town.

"I think it makes the community safe," Michael Cronin, Tiburon's police chief said....

So would installing surveillance cameras in every room of every home, Chief. Is that next?

- As I'm sure you know so I'm just going to mention it in passing, the Obama administration flip-flopped about releasing photos of detainee abuse at Guantánamo and resisted a Court of Appeals ruling calling for the release. More recently, Congress passed a law the end of October allowing Defense Secretary Gates to withhold the photos, an authority he used two weeks later. On November 30, SCOTUS reversed the Appeals Court and ordered it to reconsider its ruling in light of the new law.

- Speaking of that fabled Obama administration transparency and accountability, after a two-year court battle, the Electronic Frontier Foundation was finally able to obtain

thousands of pages of records detailing behind-the-scenes negotiations between government agencies and Congress about providing immunity for telecoms involved in illegal government surveillance.

They were released as a result of a suit filed in 2007, when Congress first debated granting immunity to the telcoms doing the government's illegal dirty work of unchecked surveillance of Americans' phone and internet communications. EFF filed an FOIA request information about communications between the DOJ, the Office of the Director of National Intelligence, Congress, and the telcoms.

The Shrub gang stonewalled and so, initially, did the O-crowd. But now it has released "a significant portion" of the records while declaring it will try to block the release of more - including, significantly, the names of the telcoms involved in lobbying for immunity.

"This case isn't over yet - there's still more information about the extensive lobbying campaign by the telecoms that helped them get immunity last year," said EFF Senior Staff Attorney Kurt Opsahl. "The government continues to hide important documents from the public."

The government's appeal will be heard before the Court of Appeals in January.

- It's not all bad news on the privacy/secrecy front. In early November, a federal district court ruled that

patients and scientists can challenge patents on human genes in court, allowing a lawsuit challenging patents on two human genes associated with hereditary breast and ovarian cancer to move forward.

The practice of patenting human genes has become disturbingly widespread. About 20% of all human genes are patented, including genes associated with Alzheimer's, muscular dystrophy, colon cancer, asthma, and many other illnesses. That often means, as it does mean in the particular case at hand, that only the patent-holder can perform diagnostic tests on the genes; even looking at them without consent is claimed to be a violation of the patent. That monopolistic control of a diagnostic tool not only enables charging sky-high rates, it makes getting a second opinion legally impossible.

The idea of patenting genes, which clearly are "products of nature" specifically excluded in patent law, is not only legally absurd, it is morally offensive and frankly creepy to boot. The suit, filed by the ACLU and the Public Patent Foundation, a non-profit affiliated with Benjamin N. Cardozo School of Law, challenges the whole notion of gene patenting, and so could have far-reaching effects. So it's a very good thing that the defendants' attempts to get it dismissed failed.

- But getting back to the bad news, with the arrival of devices placed in all new cars that monitor and log driver behavior, privacy advocates worry about their intrusive nature. Automakers and others of course dismiss the concerns. But consider:

Jim Kobus, a communications manager at OnStar, says that the system cannot track any vehicle's location until a customer makes contact by his or her own volition ... or the system detects a blowout or crash.

"The only area where that would change is in the event you report the vehicle stolen. We make sure there's a valid police report and then we begin the process to track the vehicle. ...

At the request of law enforcement, OnStar can remotely slow down a vehicle or halt its operation.

Hold it. But that means you can track the vehicle's location without the driver initiating contact: Surely no thief is going to press the button. And you can control the car, make it slow down or stop. You're saying you can't but all you really mean is that normally you don't.

Referring to the data recorder in cars, GM spokesman Alan Adler says "We don't do anything with that data ourselves."

"In the case of a crash, it doesn't say where you were, or which street you were on. It records only certain pieces of data; it's a tool in reconstructing crashes."

Adler explains that drivers have little choice but to drive with the system intact. "To get rid of the system then you have to get rid of airbags, and it's illegal to drive without airbags."

In other words, it records info police and/or your insurance company can use against you and was specifically designed to make it impossible to remove.

Next there's Josh Huber of Inthinc, who says his company's Tiwi system

"monitors the speed of the car and also aggressive driving, accelerating or braking too hard, and whether the seatbelt is on. If the driver is going above the limit it will alert the driver.

"The notifications are automatically put on a database on our website and a parent can access that database or have it sent by alerts on their phone."

So that information is made available to people other than the driver; it's part of the very idea. And it's not only parents, it's the manager(s) of the database - and anyone who gets the password.

Jeff Harvey, also at Inthinc, says the information collected about a driver's habits is used to calculate a score based on the number of "violations" over a certain number of miles, and their severity.

That score, Harvey says, is kept for up to a year, but again is only accessible to the owner of the vehicle, who can choose to share that information with insurance companies should they choose.

Oh, right, like that will be voluntary once the insurer knows you have such a device installed.

Harvey adds that in the event of a stolen vehicle, the owner can log onto Inthinc's website and see where their car is, and can work independently with police for its recovery.

Which means, yet another time, that you can track to car's location. And that was the question. Not if you routinely do, but if you can. So let everyone driving a late-model car know: You can be tracked everywhere you go. It doesn't mean you are, but there is no question but that you can be.

- Finally for this round, have you seen the signs all over airports about how you have to show ID to get on a plane?

It's not true.

Nope. Not true. You do not need to show an ID to fly from one state to another. You may (and very likely will) get extra screening if you don't show ID, but it is not actually required under either law or TSA regulations or guidelines.

Surprised? So are, it seems, the TSA team in Albuquerque, New Mexico, who arrested frequent flyer Phil Mocek after he refused to produce ID when trying to board a plane on November 16. He was charged with "concealing identity, disorderly conduct, refusing to obey an officer, and criminal trespass” and held on $1,000 bail. His traveling companion was detained and banned from the airport for 24 hours after attempting to film the arrest.

In fairness and on the upside, Mocek has been doing this for a few years and while he has been subjected to increased scrutiny, before this occasion he has always been able to get on the plane. But the existence of those lying signs are still a pisser.

Footnote: It's not just us. In the UK, whenever someone is arrested, a DNA sample is taken. Under guidelines established by the ruling Labour Party, police can keep those samples on file forever, even if the person is never charged with, much less convicted of, any crime. As a result, the British government has created the world's largest DNA database.

Recently, a report from the Human Genetics Commission charged that police are regularly arresting people just to get their DNA samples. What's more, there is clear racial bias in the practice:

While about eight percent of the British population is now listed on the DNA database, more than three-quarters of young black males, aged 18 to 35, are listed. ...

[T]he reported crime rate in Britain has been falling since 2004, but during that time arrests have been increasing at a rate of four to six percent per year. The Nature magazine blog reports that there are nearly six million people on Britain's DNA database, out of a total population of 62 million. Of those, 980,000[, over 16%,] are estimated to have never been charged with a crime.

Labour has proposed a change to allow the DNA of innocent people to be removed from the database after six years, but as sometimes happens, the right is more attuned to privacy: The Conservative Party says the DNA of innocent people shouldn't be in the database at all except if they were charged with violent or sexual offenses.

That doesn't go far enough for me; "not guilty" should mean "not guilty." Still, it is clearly better than Labour's stand.