228.2 - Good News: Court says feds collecting URLs as metadata may be violating federal law

Good News: Court says feds collecting URLs as metadata may be violating federal law

So that's the Not Good News, what's the Good News?

The Good News is that in the same decision that let Google off the hook, the Court was careful to make another point: Courts have pretty consistently ruled that the government does not need a warrant to spy on and collect so-called "non-content" data, or the metadata, of our communications - they can record, for example, who made a phone call, who got a phone call, who sent an email, who got an email; but not the content of what was said or written.

But in its decision, the Third Circuit said that merely tracking the URLs someone visits can constitute collecting the contents of their communications, and that doing so without a warrant can violate the Wiretap Act.

As an example of how the would happen, Julian Sanchez of the Cato Institute says that a visit to "webmd.com" might count as metadata, but a visit to "www.webmd.com/family-pregnancy" clearly reveals something about the visitor's communications beyond the simple fact of the visit itself, and that amounts to recording content, which requires a warrant.

And the real point here is that this declaration in the court's ruling, this finding that what's supposedly metadata can actually be content, the principle is across the board - meaning it will apply not just to Google, but to the Justice Department and the NSA and the rest of the spook-ocracy.

This is not completely new territory; the Department of Justice already states that it seeks a warrant when it collects URLs from a suspect's web history and the judges in the Google case cited a formerly secret Foreign Intelligence Surveillance Court ruling that also found that URLs could count as content as well as metadata.

But the DOJ's policy is just that: policy, not a legal requirement. And the FISA ruling was secret. This is public. Both of those differences matter.

Edward Snowden

In some ways, this finding may seem not particularly important since the whole idea of metadata being easily subject to surveillance may be going away. In fact, due to changes in the law driven by the revelations of Edward Snowden, who first brought the massing NSA spying on phone metadata to light, the program is supposed to end as of November 29. I say "supposed to" because the metadata will still be collected, it just will be held by the phone companies instead of the government and the government can still look at it, but it will have to meet a higher standard than at present to do so, at least to do so legally. So, it's better, but it's not really good and metadata being used by the government for surveillance is not going away.

But what matters right now is that while it may just be because that impending date of November 29 makes it seem politically safe, the decision in the Google case is one among some others that hint at an increasing willingness of the courts to challenge the spooks on their authority.

For one example, last May the Second Circuit Court of Appeals found that the Patriot Act did not authorize the metadata collection program. The Court did not rule on its constitutionality, but it did find the program to be illegal.

More importantly, on November 9, US District Judge Richard Leon of the District of Columbia ruled that the NSA's entire metadata-collecting program is unconstitutional and ordered it stopped immediately, finding that the Constitutional violation involved was so egregious that even though it was supposedly going to end in a few weeks anyway it could not be allowed to stand another day.

Ellen Rosenblum

The ruling has a limited legal impact not only because of the time frame involved but also because, technically, it only applies to the two plaintiffs who brought the suit. But the principle involved - the finding of unconstitutionality - is important and will clearly survive the date of November 29. The ruling is significant precisely because courts so rarely challenge the spooks waving "national security" banners. David Greene, senior staff attorney and civil liberties director for the Electronic Frontier Foundation, says it could set a precedent for future cases involving spying on citizens and residents of the US because the NSA defends many of its programs by invoking the same sort of arguments that Judge Leon rejected. So while this is limited Good News, it is still Good News and it offers hope for bigger Good News in the future.

In a related matter, since it involves government spying on citizens, the att gen of OR, Ellen Rosenblum, has said she is "appalled" by the discovery that the state's Criminal Justice Division, which she supervises, had been tracking the Twitter feeds of a number of OR residents based solely on their use of certain hashtags, particularly that of #BlackLivesMatter.

Wile she gave no details on the scope of the digital surveillance, she did say she is investigating it and strongly suggested the practice was to stop. Which, again, is good news.

Sources cited in links:
http://www.wired.com/2015/11/court-says-tracking-web-histories-can-violate-wiretap-act/
http://www.scribd.com/doc/289282594/Google-Cookie-Blocking-Circumvention-Appellate-Ruling
http://www.wired.com/2015/11/judge-blocks-nsa-spying-and-sets-an-important-precedent/
http://pdfserver.amlaw.com/nlj/NSA_klayman_20151109.pdf
https://www.eff.org/
http://news.yahoo.com/oregon-attorney-general-appalled-probe-black-lives-matter-015350436.html

Left Side of the Aisle #78 - Part 2

Outrage of the Week: Supreme Court lets telcomms off the hook

Here's the background: During the administration of George Bush, known to one and all as Shrub, the White House engaged in massive and illegal warrantless surveillance of electronic communications - that is, phone calls and email. This was done with the assistance of several of the giant telecommunications companies, such as AT&T and Sprint. AT&T even built a separate room with the single purpose of enabling the National Security Agency to have total access to all of its customers' communications. The surveillance was illegal and what the companies did in support of it was illegal. There were multiple laws in place at the time saying so.

Neither the Bush nor the Obama administration would prosecute any of this criminality, so various organizations concerned with civil liberties and privacy rights, such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), filed civil suits against the government and the corporations.

Initially, the telcomms were losing in court. Not too surprising, since they'd been caught red-handed and their claims that they acted in the "good faith" belief that it was all legal just couldn't be (and weren't) taken seriously.

But of course these giant corporations couldn't actually be held responsible for what they did illegally - especially since cases against them for what they did illegally might reveal more of what the government did illegally. So in 2008, Congress passed a law giving those companies retroactive immunity from all civil suits - a bill passed, incidentally, with the support of then-candidate Barack Obama, who had previously promised to lead a filibuster of any such legislation.

The groups suing the telcomms saw their cases ripped away by this absurd law. So they filed claims that the law was unconstitutional in that it both violated the separation of powers and denied customers of their right to redress without due process of law.

I mean, consider what this means: By the logic of this law, in the face of any offense against you, any crime committed against you, any violation of your rights, the government could simply on the one hand refuse to prosecute and on the other retroactively bar you from any civil action, leaving you with no recourse. It means the government can essentially immunize anyone, any group, any corporation it wants from all legal consequences for its behavior.

It seems a ridiculous notion - so of course the plaintiffs, those who filed the suit, lost. Courts embraced the law in order to avoid having to deal with the sticky issues involved, ones that could force the courts to actually question the conduct of the Executive Branch, something courts are loath to do.

Last December, the Ninth Circuit Court of Appeals let the suits against the government proceed, but it dismissed the arguments for reinstating the suits against the telcomms, relying on the law for retroactive immunity.

Why this comes up now is that last week, the Supreme Court refused to hear an appeal of that ruling, putting a final end to any hope of holding these giant, law-breaking corporations responsible for their actions.

So at the end of it all, the giant corporations that illegally helped with illegal government spying simply walk away untouched. And that's not even the biggest outrage of this. No, it's this: One of the reasons, the really big argument, for granting retroactive immunity - and the central argument the Obama administration used in urging courts to dismiss the suits - was the assertion that the government wanted to encourage cooperation in future such efforts.

Now bear in mind that if what the government wants to do is legal and what it wants the telcomms to do is legal, there is no problem. The issue does not arise. So what the government - what the Obama administration now - is actually saying here is that it wants to be able to illegally wiretap and it wants the corporations to illegally cooperate in illegal wiretaps, with no risk whatsoever of any criminal or civil consequences to anyone involved in this illegal activity. That's what's being said.

And if that doesn't strike you as outrageous, well, there is no hope for you.

Sources:
http://www.reuters.com/article/2012/10/09/us-usa-court-telecom-idUSBRE8980UV20121009
http://www.guardian.co.uk/commentisfree/2012/oct/10/supreme-court-telecoms-win-immunity
https://www.eff.org/files/nsa/statutes.pdf

Touching your privates, Five

On a more, if you will, national rather than personal level comes the news - again from the middle of October - that

in a brief filed with the Ninth Circuit Court of Appeals, the Obama Administration continued the government's half-decade-long battle to ensure that no judge ever rules on the legality of the National Security Agency's warrantless dragnet surveillance program, a program first revealed in 2005 by the New York Times and detailed by technical documents provided by former AT&T technician Mark Klein.

That from the Electronic Frontier Foundation (EFF), which goes on to say that this was

the government's response to EFF's appeal of the Jewel v. NSA case, a lawsuit brought against the government and government officials on behalf of AT&T phone and internet customers whose communications have been swept up in the mass surveillance program along with those of millions of other Americans.

In January, the district court dismissed the suit on what EFF politely calls the "incorrect" grounds - but which I say are the truly bizarre grounds - that

because so many Americans have had their communications and communications records illegally obtained by the government, no single person has legal "standing" to challenge the ongoing program of government surveillance.

Is that clear? The court ruled that because millions of people were illegally spied on, none of them have a right to complain. A masterpiece of doublethink.

Footnote to the preceding

On a somewhat brighter note, Senate progress on the misnamed Combating Online Infringements and Counterfeits Act (COICA) has been put off until after the election. While that doesn't mean the bill has been defeated, it does mean that the chances of doing so, at least for this Congress, have clearly improved.

The bill, introduced by Pat Leahy on September 20, was scheduled for a markup session just one week later. This rush to judgment was stalled when staffers realized the Senate would likely adjourn before that meeting could begin.

The reason this is good news is that the bill is, as EFF labels it, "an Internet censorship bill" that would empower the DOJ to hinder or even ban access to websites on lists it would compile. More specifically, EFF explains, it

would allow the Attorney General and the Department of Justice to break the Internet one domain at a time — by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites. The bill would also create two Internet blacklists. The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines — without judicial review — are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.) ...

[T]he DMCA [the Digital Millennium Copyright Act of 1996] already gives copyright owners legal tools to remove infringing material piece-by-piece, and to obtain injunctions requiring ISPs to block certain offshore infringing websites. The misuse of the existing DMCA provisions have had a tremendously damaging impact on fair use and free expression. By comparison, COICA streamlines and vastly expands this; it would allow the AG to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it's not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.

The way the bill would work is by interfering with the net's domain name system, or DNS. When you enter a web address in your browser, the DNS translates it into the form the system uses and tells your browser where that address can be found. Under the bill, the DNS in effect would have to tell your browser "ya can't get theah from heah."

Generally speaking[, EFF's legislative analysis says,] the bill forces all the Internet "middlemen" to act as if a part of the Internet doesn't exist, even though that page may otherwise be completely available and accessible.

As the group notes, if the bill passes the list of targets could conceivably include hosting websites (because in the absence of a takedown notice they don't police files, so the DOJ could decide there is "too much" piracy, making that "central" to their business), MP3 blogs and mashup sites (because the DOJ, under expected pressure from the RIAA, could declare such mashups are not "fair use"), and sites that advocate for p2p technology and/or piracy (because, while there is a great deal of Constitutionally-protected speech there, posts on the sites regularly link to tools and information potentially useful in piracy, and DOJ could decide that piracy is therefore "central" to the site's purpose).

Indeed[, EFF says,] had this bill been passed five or ten years ago, YouTube might not exist today. In other words, the collateral damage from this legislation would be enormous.

There are already laws and procedures in place for taking down sites that violate the law. This act would allow the Attorney General to censor sites even when no court has found they have infringed copyright or any other law.

And even where a site had violated the law, it would apply a bludgeon rather than a scalpel, smashing the legal along with the illegal. This bill is a really bad idea.

It's last week's news

Updated But still too important to let pass without comment.

Net neutrality, put simply, is the principle that providers can't discriminate among users in managing traffic flow. They can't, for example, give some corporate behemoth the digital equivalent of a superhighway with all green lights while relegating some crummy blog with 35 hits a day to a rutted side road with a stop sign at every intersection. Traffic is traffic and it all gets treated equally.

Net neutrality is one of the reasons the internet has thrived: It has been, at least technologically and theoretically, equally available to all rather than being dominated and ruled by a handful of media conglomerates, à la broadcast media. So of course corporations hate it and persistently have tried to undermine it.

One of the people who was supposedly a champion of net neutrality is Democratic Congressman Henry Waxman of California, who chairs the House's Energy and Commerce Committee. That accolade, apparently, is no longer deserved. Raw Story reported last week that Waxman has put forth a proposal that

under the banner of mandating network neutrality would instead prevent the government from requiring broadband providers to treat all Internet traffic equally.

Waxman, who has vowed that he would support the so-called 'Net Neutrality' policy proposals favored by most Democrats and progressives, has instead put forward an as-yet-unsettled legislative framework that explicitly prohibits the Federal Communications Commission from regulating broadband Internet under Title II of the Communications Act: a caveat key to implementation of what's been called the Internet's First Amendment.

Should the president sign a bill containing Waxman's language, it would effectively kill 'Net Neutrality' efforts and make key parts of a hotly contested proposal by Google and Verizon the law of the land.

Without plunging into the details of that proposal, I'll mention that the Electronic Frontier Foundation has an analysis of it, various points of which it rates "Good," "Interesting," "Troublesome," or "Fail." Even at that, I'm not sure I can agree with some parts they consider "good," such as "limit[ing] the FCC to case-by-case enforcement of consumer protection and nondiscrimination requirements and prohibit[ing] broad rulemaking." While I can share their concern about giving the FCC overly-broad authority, a "case-by-case" approach to the internet, with its tens of millions of content providers from major media outlets to individual blogs, would make any nondiscrimination requirements essentially unenforceable - a concern shared by others, even among some who see good parts to the corporate proposal. Indeed, as Raw Story points out,

[f]rom an Internet user's perspective, traffic shaping and discriminatory practices are impossible to prove without the service provider's own admission that it is occurring.

Despite that, Waxman's bill embraces case-by-case enforcement and states, Raw Story reports, that it gives the FCC no new authority to regulate providers unless the company actually elects to be regulated. What's more, violations of the rules would incur a maximum fine of $2 million, chump change to the majors, particularly in light of the profit potential of skirting those rules.

But even more importantly, the Google-Verizon vision would exempt wireless networks - almost universally agreed to be the future of internet access - from neutrality rules.

John Bergmayer, a staff attorney at Public Knowledge, has said that in doing so, the corporate plan

draws illogical distinctions both on the basis of what technology you use to access the Internet, and between “the public Internet” (Verizon’s mantra on the press call) and “additional online services.”

The Google/Verizon blog post misleadingly mentions “the FCC’s current wireline broadband openness principles.” But the FCC’s 2005 Internet Policy Statement refers to broadband, and does not carve out a distinction for wireless. The FCC was right to see that the Internet is the Internet—it makes no sense to apply different principles to different technologies.

That is, what Google and Verizon are trying to do is to create distinctions that did not exist previously in order to carve out a space where they can act to pursue their own corporate interests without oversight. And Henry Waxman is right there with them. While his bill

carries language that speaks of preventing ISPs from "unjustly or unreasonably" discriminating against "lawful traffic," the spirit of the rule is completely undermined by text that follows.

For today's fast-growing wireless networks ... it makes a provision allowing for "reasonable network management," but prohibits blocking "lawful Internet websites".

Which raises two enormous problems: One is, what defines "lawful?" Who gets to decide what is a "lawful" site? The primary issue here seems to be peer-to-peer sites, which the majors and their entertainment corporation partners hate with a passion. It's safe to say that at any given moment on any given p2p site there is a lot of copyrighted material being illegally distributed and a lot of other material, both copyrighted and non-copyrighted, being legally distributed. Is that site "legal" or not? Does it depend on how much of the traffic is being distributed contrary to copyright restrictions? Who decides how much is too much?

Here's another: Suppose the relevant honchos of some provider corporation dislike the War Resisters League because of its support for conscientious tax resistance and nonviolence civil disobedience. Can that provider block access to the WRL site on the grounds that its support for such law-breaking makes it an "unlawful" site? Who decides? And on what basis?

But Raw Story nabs the big one, the one that just slips by in a single phrase but makes all the difference:

That term, "reasonable network management," is defined as "a network management practice that is appropriate and tailored to achieving a legitimate network management function". Waxman's text goes on to explain that "appropriate and tailored practices to reduce or mitigate the effects of what it calls "traffic that is harmful to or unwanted by users" are permissible.

The catch: "Users" includes "premise operators, [...] the provider’s network, or the Internet".

Stated in plain language, under Waxman's proposal, traffic that is unwanted on a provider's network may still be subject to "management."

Stated in even plainer language, in Waxman's bill providers are "users" and in the case of wireless networks they are free "deprioritize" or even to block any content which they do not want. While the bill bans blocking "lawful applications that compete with the provider’s voice or video communications services," I'm really not worried about ads for T-Mobile not making it across Verizon's network; I sincerely doubt there will be a problem. I am, however, worried about sites like Verizon Sucks Ass and Google Sucks and other better- or lesser-known voices of whatever style or focus or seriousness that are for whatever reason unwelcome in the offices of C. S. Lewis's "quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice" being banished to some dark back alley of the internet.

Ultimately, as PC World columnist Ian Paul said back in August,

[t]he Google-Verizon proposal appears to make room for a two-tiered Internet: the public Internet we use today and a private one for premium services. That raises the question about what happens to the regular Internet in the long term? Would broadband providers be compelled to maintain and upgrade their regular Internet services? Could carriers cap regular Internet speeds at a certain level, and then force users over to the proposed private service if they wanted better broadband speeds? How does an open or so-called public Internet survive when corporations have financial incentives, such as private networks, to ignore it?

That is the future Henry Waxman has now endorsed, in fact for which he is pushing.

Did he ever did actually believe in net neutrality? I admit, I wonder, since a much better bill, the Internet Freedom and Preservation Act, has languished in the Energy and Commerce Committee - the committee Waxman chairs - for over year.

The fact remains, if he ever did believe in it either he doesn't now or he's been rooked by corporations that are prepared to pretty much accept the status quo that exists in the present for the sake of owning the future.

More and better Democrats, indeed.

Updated with a Footnote: I've learned since that when he presented his proposal, Waxman said that

if efforts to create bipartisan broadband legislation fail, the Federal Communications Commission should move broadband businesses under Title II of the Communications Act, a possibility phone and cable companies strongly oppose.

"If our efforts to find bipartisan consensus fail, the FCC should move forward under Title II. The bottom line is that we must protect the open Internet. If Congress can’t act, the FCC must," he said in a statement.

It appears, then, that Waxman is wielding the sword of pushing for regulation of broadband carriers as "common carriers" like telephone companies, and so subject to equal access rules, as a sort of weapon to pressure the corporations to get behind his bill. A "Hey, look, it could be worse" argument.

I'd like to be able to say that Waxman's repeated support for the principle of net neutrality mitigates some of the concern about his proposal, but it doesn't. The proposal still says what it says and either Waxman doesn't grasp the import of his own proposal or he has decided that it's sufficient to have a philosophical statement in favor of net neutrality even as actual control of the future of broadband is handed over to the corporate giants.

An Amusingly Revealing Footnote to the Footnote: It turns out that some GOPpers are feeling trapped between some of their big donors among the telcom industry (which likes some form of government regulation of the internet because it protects them against competitors while not damaging their positions) and their TP followers, who opposed to any sort of regulation whatsoever. Which means, true to their logic-less libertarian roots, the TPers think government is so eee-vuul that they actually want to have a handful of corporate behemoths dictating what can and can't be sent over the web, when, and how fast.

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.

Back to the real world, Part 5 (cont.)

Subtitled "There, I've Said It Again." In fact, I've said it, by actual count, in 15 different posts since March: In it's approach to presidential powers and secrecy in so-called "national security" (or anything that they can so label) matter, the Obama administration is all but indistinguishable from the Shrub gang.

In fact, the day after the election, I said that I suspected one reason for Obama's disgraceful flip-flop on FISA was that he began to contemplate having those same powers himself. In March, I wrote "Is it too soon [to say that Obama is embracing Bush policies]? Nah, it's not. No way." The months since have given me no reason to amend that judgment. Glenn Greenwald brings just the latest example.

The Obama administration has, yet again, asserted the broadest and most radical version of the "state secrets" privilege - which previously caused so much controversy and turmoil among loyal Democrats (when used by Bush/Cheney) - to attempt to block courts from ruling on the legality of the government's domestic surveillance activities. Obama did so again this past Friday - just six weeks after the DOJ announced voluntary new internal guidelines which, it insisted, would prevent abuses of the state secrets privilege. Instead - as predicted - the DOJ continues to embrace the very same "state secrets" theories of the Bush administration - which Democrats generally and Barack Obama specifically once vehemently condemned - and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law.

The case is Shubert v. Obama, originally Shubert v. Bush, in which the plaintiffs charge that the Bush administration engaged in a massive and illegal "dragnet" surveillance of Americans, one that continues to this day. The Electronic Frontier Foundation is acting as lead counsel.

The lawsuit's central allegation is that the officials responsible for this program violated the Fourth Amendment and FISA and can be held accountable under the law for those illegal actions.

In response, the Obama crowd invoked the bogus "state secrets privilege," arguing that the case must be thrown out without a hearing because allowing it to proceed would "require" the government to reveal "highly classified NSA sources and methods." The word "must" - as opposed to "should" - was chosen deliberately to reflect to White House's position, because

[a]ccording to the Obama administration, what were once leading examples of Bush's lawlessness and contempt for the Constitution - namely, his illegal, warrantless domestic spying programs - are now vital "state secrets" in America's War on Terror, such that courts are prohibited even from considering whether the Government was engaging in crimes when spying on Americans.

The Obama administration is arguing, in essence, that on "national security," the president is above the law - just as the Shrub gang did. That the president can order any conduct, no matter how outrageously and blatantly illegal, and be able to avoid any possible consequences or even examination simply by waving the "secrecy" banner. That is what Obama is advocating. There is no way around this.

The EFF noted that in making the claim, the administration

demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege. ...

EFF was skeptical when the Obama Administration announced in September its new policy on when the Executive Branch would assert the state secrets privilege in litigation. We argued that the Administration's promise of self-restraint was no replacement for Congressional reform of the oft-abused privilege, considering how the new administration had already embraced the Bush Administration's position on warrantless wiretapping and secrecy.... Based on that experience, we feared that the purported change in policy would result in no change at all when it came to lawsuits over the NSA spying program.

Our fears proved to be well-founded....

Greenwald pointed out how none of the excuses previously offered by the Obamabots can fly any longer. First, this was not something done by a Shrub holdover: AttGen Eric Holder said on Friday that he approved of the asserion of the privilege.

Alternatively, it was often claimed that Obama was only asserting these Bush-replicating theories because he secretly hoped to lose in court and thus magnanimously gift us with good precedent - but the Obama administration has repeatedly lost in court on these theories and then engaged in extraordinary efforts to destroy those good precedents, including by inducing the full appellate court to vacate the decisions or even threatening to defy the court orders compelling disclosure.

A president who is above the law when it comes to "national security." That is what Barack Obama is advocating.

Footnote: In case you're still wondering, two leftover items from September should help put those doubts to rest. The first from September 22:

"There is growing concern that [the] Bagram [detention center in Afghanistan] has become the new Guantánamo – except with hundreds more prisoners, held indefinitely in reportedly harsher conditions, with no access to lawyers or courts," said Melissa Goodman, staff attorney with the ACLU National Security Project, in a media advisory. "Yet the public is still in the dark when it comes to basic facts such as whom our military is holding there, for how long and on what grounds, and the rules that govern their detention, release and treatment. As long as the Bagram prison is shrouded in secrecy, there is no way to know the truth or begin to address the problems that may exist."

So after months of being denied the information, the ACLU has sued the DOD, the DOJ, the State Dept., and the CIA to obtain records on those prisoners.

As a sort of Footnote to the Footnote, back in April, US District Judge John Bates ruled that those prisoners should be provided habeas corpus rights, that is, the right to challenge their detention in a US court - rights which prisoners at Gitmo had obtained. The Obama crowd's answer came on September 15: It filed an appeal with the Court of Appeals in Washington, seeking to have the ruling overturned and claiming what applied to Guantánamo does not apply to Bagram.

The other item is from September 24, when the administration announced it would not seek new legislation authorizing the indefinite detention of terrorism suspects being held without charges at Guantánamo Bay, Cuba - because it decided it didn't need it. The post-9/11 resolution authorizing the use of force against "those nations, organizations, or persons" involved in 9/11 gave the administration all the authority it needs, the White House said.

In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.

This was despite Obama having said in May that he would not "decide alone" on the matter. Now it's that his pledge to "work with Congress" doesn't mean legislating, it means "consulting" - or, as it's better known, telling a handful of committee chairs "This is what we're going to do."

Still more on privacy

In 2004, Google announced its Google Books project, which proposed to digitize some 10 million books in libraries around the country. In 2005, the Authors Guild sued, claiming the project amounted to "massive" copyright infringement. Last October, the parties reached a negotiated settlement that addressed in detail various financial issues such as royalties and book advertising.

Unfortunately, it did not address privacy concerns for readers or authors. That's bad. As the ACLU has noted,

[w]hat you choose to read says a lot about who you are, what you value, and what you believe. You should be able to read about politics, health, or anything else without worrying that someone is looking over your shoulder. ...

Currently, Google Book Service can monitor the books you browse and search for, the pages you read, and even the notes you write in the “margins.” Without strong privacy protections, all of your browsing and reading history may be collected, tracked, and turned over to the government or third parties without your knowledge or consent.

As a result of such concerns, earlier this month, EPIC, the Electronic Privacy Information Center, moved to intervene in the case.

The Google Books settlement would create a single digital library, operated by Google, but currently fails to limit Google's use of the personal information collected. EPIC stated that the settlement "mandates the collection of the most intimate personal information, threatens well-established standards that safeguard intellectual freedom, and imperils longstanding Constitutional rights, including the right to read anonymously." EPIC further warned that the Google Books deal "threatens to eviscerate state library privacy laws that safeguard library patrons in the United States."

The group also noted in its filing that

the settlement would allow Google to integrate sensitive personal information with other Google services, creating detailed profiles on Internet users.

EPIC is not alone in its concern: One day earlier, FTC Chair Jon Leibowitz said in a statement that

[t]he Google Books initiative could provide a wealth of benefits for consumers, yet it also raises serious privacy challenges because of the vast amount of user information that could be collected.

Besides the ACLU, EPIC, and the FTC, the Electronic Frontier Foundation, the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law School, the American Library Association, two other major library associations, and a number of academics have expressed concerns about the privacy issues involved.

On October 7, a judge in the District Court for the southern district of New York state will hear arguments on the settlement to determine if it's acceptable to the court. Hopefully, the court will take the concerns about privacy into account.

Footnote to the preceding, Another Front Div.

While "national security" and the War on Terror^{(c)(reg.)(pat.pend.)} are likely the areas where he is getting the biggest push from those around him, they are not the only areas where President Obama appears to have found the levers of power more alluring than candidate Obama did.

Barack Obama came into office promising to run "the most transparent and accountable government in history." In fact, the day after his inauguration,

Mr. Obama said he would require his administration to consider the Freedom of Information Act and the general concept of openness and transparency in a different way than in previous administrations.

But like more than a few other fine phrases, the implementation did not live up to the implication. ABC News reported recently that

[a] sweeping new Obama administration openness policy doesn't apply to a key White House office that supports most of Obama's key staff and advisers, administration officials confirm. Rather, the Obama White House has opted to retain a Bush-era policy that blocks information about those operations from public release.

The office in question is the White House Office of Administration, which oversees much of the day-to-day operations of the president's office and staff.

George Bush was the man who declared, in 2007, that the office was not subject to the Freedom of Information Act. A federal court subsequently agreed with the White House that the office was technically not an "agency" within the meaning of the FOIA and so was not covered by it.

Today, the Obama White House Web site announces that the Office of Administration "is not subject to FOIA and related authorities." And that's just not good enough, say government watchdogs.

Not good enough because the court decision does not require the government to dismiss FOIA requests about the Office of Administration, it says only that it doesn't have to respond to them. It's still free to do so if it chooses.

"If the president is talking about establishing an 'unprecedented' level of transparency, it seems like at a minimum he should be reverting to the pre-Bush practice of honoring the FOIA within a key White House component," said David Sobel, a lawyer who runs a government accountability project at the Electronic Frontier Foundation. "That's not even unprecedented, that's just getting back to what had been the norm."

Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists, agreed, noting that he'd also like to see Obama reverse a Clinton administration decision to exempt the White House National Security Council from FOIA, a stance Bush maintained and Obama has shown no inclination to reverse.

This, admittedly, is something that might change in time, something that has been rather low on their list of priorities. But frankly, reverting to a previous status quo - especialy when that could be done with a simple executive order directing the Office of Administration to act as if it was covered the the FOIA - is not something that should take a lot of study or deep consideration. The bottom line here is that Obama campaigned on creating "the most transparent and accountable administration in history" and yet, so far, is in at least some ways running one that is less open than the first six years of the Bush administration.

I told you so

Updated Dammit, dammit, dammit, dammit, dammit! I told you so! I did, I did, I did! You know I did! And more than once!

The day after the election, I told you so:

I strongly suspect that in a while a lot of people are going to be very disappointed in Barack Obama. ...

I believe that those who insist that on matters such as FISA he will be different as president than he was as a senator are just kidding themselves. In fact, I suspect that the reason he flip-flopped on FISA is that he started contemplating having those powers himself.

And now it seems even those sort of powers are not enough.

Jewel v. NSA is a suit filed last fall by the Electronic Frontier Foundation (EFF) on behalf of five customers of AT&T (acting on behalf of all AT&T customers) challenging as illegal and unconstitutional the program of dragnet communications surveillance conducted by the National Security Agency. With the EFF's agreement, the initial government response was delayed until April. Now it has come and it's a doozy.

In a motion filed on Friday, April 3rd, the Obama Dept. of Justice (DOJ) demanded that the entire lawsuit be dismissed based on both the Bush administration's claim that a "state secrets" privilege bars any lawsuits against the executive branch for illegal spying, as well as a novel "sovereign immunity" claim that the Patriot Act bars any lawsuits of any kind for illegal government surveillance, unless there was "willful disclosure" of the illegally intercepted communications.

That latter argument is a stunner, an entirely new argument that goes clearly beyond any CYA claim advanced by the Shrub gang. While they had claimed "sovereign immunity" against suits under FISA, even they never insisted that the administration had such immunity against suits about illegal surveillance under any law.

But that is exactly what the Obama DOJ is now claiming. They are saying that if the government illegally spies on you, illegally intercepts any or all of your personal communications, even if the the government knows its spying is illegal, even if you know the government illegally spied on you, even if everyone knows the government illegally spied on you, even if you can undeniably prove the government illegally spied on you, there's not a single goddam thing you can do about it unless the government "willfully disclosed" the information it illegally gathered.

In a statement, the EFF called the argument "deeply troubling," "pernicious," "radical," and "utterly unprecedented."

No one - not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration - has ever interpreted the law this way. ...

Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ's radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama's own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

That sentiment was echoed by Prof. Jonathan Turley, who called the Obama team's claim "breathtaking" and said it represented

yet another break with its campaign promise to fight to restore civil liberties and privacy.... It appears the “yes we can” means “yes we can do most anything that we want” when it comes to unlawful programs.

(Prof. Turley notes that this is not the first time Obama's DOJ has gone beyond Bush's: In February, it threatened to unilaterally "withdraw" a document from a court case when it lost a ruling related to it, something of which Turley said he'd never heard.)

Glenn Greenwald, who said in his commentary on the filing that it's "hard to overstate how extremist [it] is," makes two significant points. One is that this is the initial government response to this suit. That is, this is not the Obama administration just carrying over a Bush administration argument (not that that would be an excuse), flying on autopilot as it were, this is the Obama administration's own, considered, position. There is no hiding behind the Bushites here.

The other point is one he just brushes by, but is very important to understand: You are, he said, "barred from suing [government agencies] unless they 'willfully disclose' to the public what they have learned." To the public. That's the phrase to note.

Because under the Obama administration's position, the information gathered can be kept and it can be disclosed. Depending on exact circumstances, it can be disclosed to other government agencies. It can be disclosed to law enforcement agencies. It might even be disclosed to foreign governments. But as long as it is still called "secret," as long as it has not been officially released to the general public, it has not been "willfully disclosed." And you still have no recourse. In fact, even if the information was deliberately leaked, you likely would have no recourse against anyone but the actual leaker - assuming that by some miracle you could identify them.

That's why Keith Olbermann's description of it as being like someone stealing your money but that's okay as long as they don't spend it, is not right: It's more like someone stealing your money but that's okay as long as they don't tell you what they spent it on.

It's been said by several observers that no president wants to surrender any of the power of the office. It's also been said that power corrupts. Barack Obama gives every sign of proving both adages correct.

And dammit, I told you so.

Updated to note that Dday at Hullabaloo has some additional stuff about a growing anger over Obama's use of secrecy and national security claims to conceal information about Executive Branch criminality. I also found interesting how in comments several people strove mightily to argue that everything is fine, trust in Obama; one even suggested that this is a strategy, that Obama is deliberately abusing assertions of presidential power to force Congress to pass limiting legislation, while another labeled the opposition "simple-minded" and employed the hoary "we don't have all the facts" dodge.