Everything is terrible.

It's been a great week for the relentless march toward dystopia!

U.S. intelligence mining data from nine U.S. Internet companies in broad secret program

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates, according to a top-secret document obtained by The Washington Post. [...]

Equally unusual is the way the NSA extracts what it wants, according to the document: "Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple."

PRISM was launched from the ashes of President George W. Bush's secret program of warrantless domestic surveillance in 2007, after news media disclosures, lawsuits and the Foreign Intelligence Surveillance Court forced the president to look for new authority. [...]

Government officials and the document itself made clear that the NSA regarded the identities of its private partners as PRISM's most sensitive secret, fearing that they would withdraw from the program if exposed. "98 percent of PRISM production is based on Yahoo, Google and Microsoft; we need to make sure we don't harm these sources," the briefing's author wrote in his speaker's notes.

Everyone denies it, but:

Kurt Opsahl, a staff attorney at the Electronic Frontier Foundation says that these denials may not be very significant.

"Whether they know the code name PRISM, they probably don't," he told Ars. "[Code names are] not routinely shared outside the agency. Saying they've never heard of PRISM doesn't mean much. Generally what we've seen when there have been revelations is something like: 'we can't comment on matters of national security.' The tech companies responses are unusual in that they're not saying 'we can't comment.' They're designed to give the impression that they're not participating in this."

NSA collecting phone records of millions of Verizon customers daily

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk -- regardless of whether they are suspected of any wrongdoing.

NSA phone sweeping has been going on since 2007

The leaders of the Senate Intelligence Committee on Thursday said senators were informed of the administration's sweeping surveillance practices, which they said have been going on since 2007.

"Everyone's been aware of it for years, every member of the Senate," said Sen. Saxby Chambliss (Ga.), the ranking Republican on the Senate Intelligence Committee.

DHS on border laptop searches: we can't tell you why this is legal, and we won't limit searches to reasonable suspicion

The DHS has responded to a Freedom of Information Act request filed by the ACLU asking when and how it decides whose laptop to search at the border. It explained its legal rationale for conducting these searches with a blank page:

On Page 18 of the 52-page document under the section entitled "First Amendment," several paragraphs are completely blacked out. They simply end with the sentence: "The laptop border searches in the [Immigration and Customs Enforcement] and [Customs and Border Protection] do not violate travelers' First Amendment rights as defined by the courts."

More excellence from "the most transparent administration in American history." Also, the DHS rejected claims that it should limit searches to situations where it had reasonable grounds for suspicion, because then they would have to explain their suspicion:

First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.

A Junk Decision on Warrantless DNA Collection

You lost some important Fourth Amendment protection when the Supreme Court ruled yesterday in Maryland v. King that the police can take a DNA sample from an arrestee without a search warrant for purposes of general law enforcement rummaging. [...]

Ultimately, in Maryland v. King, the Supreme Court effectively killed Fourth Amendment protections for the most vulnerable members of society. King's DNA could have been collected after his conviction on the assault charge, as every state and the federal government also collects DNA from convicted felons. But by authorizing warrantless DNA collection from arrestees, as Justice Scalia noted the majority managed to "to burden uniquely the sole group for whom the Fourth Amendment's protections ought to be most jealously guarded: people who are innocent of the State's accusations."

Justice Scalia and the Genetic Panopticon

The majority reasoned that the state has a significant interest in positively identifying suspects and the intrusion required, "a gentle rub along the inside of the cheek," is minimal. Basically, the majority held, this is no different than photographing or fingerprinting subjects.

Which is nonsense, because DNA has the potential to reveal far more about a person than his or her identity. According to the majority, though, the particular test at issue can't do that, or at least that is "open to dispute." Plus, it continued, the officers are not using it for that purpose, and there is even a state law saying they can't. "The Court need not speculate about the risks posed" by a system that doesn't have such protections, said the majority. Right, because information, once gathered, is never illegally misused. Hey, Justice Kennedy, how about the risks posed by a system that does have such protections but in which those protections are continually ignored or maybe pushed aside by constant invocations of "national security"? Could you speculate about that?

Justice Scalia, joined by the liberals except for Breyer, who surprisingly voted with the conservative majority, was willing to "speculate" about the risks involved:

Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the "identity" of the flying public), applies for a driver's license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today's incursion upon the Fourth Amendment, like an earlier one,6 will some day be repudiated.

He was talking about the "all-seeing" aspect of the Panopticon there, of course, but we should also remember that the "essence" of the idea, according to Bentham, was not just the watching but that the watched population would control itself in the first instance because of the fear of being watched by an invisible keeper.

Texas Says It's OK to Shoot an Escort If She Won't Have Sex With You

A jury in Bexar County, Texas just acquitted Ezekiel Gilbert of charges that he murdered a 23-year-old Craigslist escort -- agreeing that because he was attempting to retrieve the $150 he'd paid to Lenora Ivie Frago, who wouldn't have sex with him, his actions were justified.

Gilbert had admitted to shooting Frago in the neck on Christmas Eve 2009, when she accepted $150 from Gilbert and left his home without having sex with him. Frago, who was paralyzed by the shooting, died several months later.

Gilbert's defense argued that the shooting wasn't meant to kill, and that Gilbert's actions were justified, because he believed that sex was included as part of the fee. Texas law allows people "to use deadly force to recover property during a nighttime theft."

The 30-year-old hugged his defense attorneys after the "not guilty" verdict was read by the judge. If convicted, he could have faced life in prison. He thanked God, his lawyers, and the jury for being able to "see what wasn't the truth."

New York Senate makes it a felony to annoy a police officer

The New York Senate has passed a bill making it illegal to "harass" a police officer by "any type of physical action" -- even action that does not otherwise constitute interference, obstruction or assault. Given that "obstruction" and "interference" are famously broad, it's hard to imagine what conduct the police and the NY Senate believe they need to control by statute, though there's a clue in the statutory language, which makes it a felony to "harass, annoy, or threaten a police officer while on duty."

In other words, if you cause any physical contact with a police officer, even unintentionally, even if the contact does not rise to the level of assault or obstruction or interference, you can be convicted of a felony and imprisoned if the officer can show that your conduct "annoyed" him. This is the kind of statute that seems calculated to allow the police and prosecutors to put people in jail for very long stretches (remember that 97% of people indicted for felonies in the USA plead guilty under threat of decades of prison should they fight and lose) just because they don't like them very much.

I'm reminded of Toronto's notorious "Officer Bubbles", Adam Josephs, who told a G20 protester that if any soap bubbles were to touch him, he could consider it assault (and who violently arrested the protester on that basis). The world laughed (albeit with some weary cynicism) at the idea that a large, armed man could call incidental contact with a soap-bubble "assault." But the New York Senate has effectively given police the power to literally treat mere annoyances as felonious conduct.

Previously, previously, previously, previously, previously, previously.

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23 Responses:

  1. Jersey Jenn says:

    Always love your posts!

  2. Other Jamie says:

    PanoptiCon: the conference you don't have to go anywhere to visit!

    But at least we can still have our guns. Just don't point a camera at a cop - they might decide it is a gun.

  3. The last one seems like it's laying the groundwork for the post marijuana legalization era. The cops -- and most especially the NYPD -- are never, ever, ever going to relinquish their right to haul in people for Walking While Black. With the wind clearly blowing in favor of finally legalizing marijuana (currently the most favored tool for WWB arrests), they're gonna need a fresh new cudgel.

  4. Oh, and speaking of everything being terrible, your regular reminder that San Francisco really doesn't want anyone to ever open a business here. Especially, god forbid, a successful and popular one.

  5. bode says:

    These are great articles and good points. But Doctorow is literally full of shit: the border is a place where the fourth amendment doesn't apply. I mean literally one second of search tells me: http://en.wikipedia.org/wiki/Border_search_exception (so yeah, it's not fourth amendment but probable cause). So DHS won't tell Corey how to bypass the search (I'm guessing "the cloud" would be a good answer)? Boo fucking hoo. It doesn't change our nation's long-established right to search everything coming into the county (and every other country does the same).

    Anyway, sure DHS is not transparent and is full of shit. Fuck TSA also. Obama is complicit in all and probably communist. But I'm not sure I'd call it a 5-alarm fire that no one will tell Corey how to smuggle his 3 weeks worth of Thai CP pics past DHS. That sounds like "business as usual."

    The Verizon and PRISM are a fuck of a lot more serious.

    • jwz says:

      You say that the border is a Constitution-free zone as if current legal interpretation suddenly makes it sensible or right. I mean literally one second of search tells me that sodomy is illegal in several states, so what could there be to complain about?

      You're an idiot. I'd invite you to blow me if that wasn't obviously illegal by our nation's long-standing precedent.

      • pvg says:

        The one second search should have popped up Lawrence v. Texas. The short-standing precedent frees you to invite anyone to blow you, literally or figuratively, in the cases of private private, non-commercial, mutually consenting conduct!

    • phuzz says:

      Just because it's currently legal, doesn't mean it's a good idea, ditto, just because it's in the constitution, doesn't mean it's still a good idea.
      The constitution and bill of rights ect was a great leap forward as a legal framework for a country, but it is a couple of hundred years old now, and starting to look creaky in a few places. Perhaps it's about time you wrote a new one?
      Yours etc.
      the rest of the world.

      • James says:

        We could always come back and reclaim the colony... and providing we did it at night, in Texas it'd be legal to shoot anyone who disagreed ;-)

        Don't think about coming back here though, it rains all the time and we don't even have a proper government. It's like the 80s here, only with better Internet.

        I concur, everything is broken.

    • gryazi says:

      The quote seems to imply someone asked about First Amendment rights, which gave an opening for a garbage-in garbage-out response?

  6. Edouard says:

    But on the bright side, at least your first amendment is being strengthened for a lot of persons.

    Oh, wait.

  7. nooj says:

    It's complete bullshit, and I'd do something about it if I felt like I had any power. The decisionmakers involved span every major (current) political ideology, and have repeatedly demonstrated they don't give a fuck what anyone else thinks.

  8. AustinDave says:

    There's some nuanced followup on the Texas case. Analysis is coming out that
    "The defense argued that Gilbert lacked the requisite intent for murder because when he shot at the car as Frago and the owner of the escort service drove away, he was aiming for the tire." While this narrative doesn't help Gawker drive traffic, it does kind of support citizens charged with murder who didn't intend to murder someone.

    • Richard says:

      this narrative ... does kind of support citizens charged with murder who didn't intend to murder someone.

      Thank God (in Whom We Trust) for that.

      And you wonder why the rest of the planet hates you.

      Nuanced assassination.

      • nooj says:

        You're an idiot. What does this case have to do with assassination?

        Did you miss the part about how the prosecution was fucking idiotic for charging him with murder? This is why we have charges like involuntary manslaughter. The original charge was "aggravated assault," and only after she died (may she rest in peace) did the prosecutors piss themselves with glee and trump the charges up to murder. Pumping up charges is, in fact, a systemic problem with prosecutors, as seen in the Aaron Swartz and Kevin Mitnick cases.

        Actually, this is a systemic problem with the Executive branch in general.

  9. crowding says:

    For the first few days everyone was making as if PRISM was an omniscient data Hoover that could tap everything in the partner companies if it wanted. But the $20M annual budget quoted on the slides is at least 2-3 orders of magnitude too low for that.

    Now NSA probably does operate data warehouses that indiscriminately suck up everything going over the wires -- but it looks like PRISM is just some kind of webapp/API to streamline the rubberstamping and fulfillment of FISA requests.

    Spam enough FISA court orders at a tech company and eventually they'll be techies and say, fine, we'll set up a process so we can minimize our involvement to glancing at today's requests and clicking "OK." At which point they become a "partner" in this PRISM thing.

  10. nooj says:

    "The modest encroachments on privacy that are involved ... it was worth doing," he said.

    Fuck you, Obama.

  11. nooj says:

    It's time to start busting people for obstruction and contempt of Congress.

    The New Yorker:

    Apple: “We do not provide any government agency with direct access to our servers.”
    Facebook: “We do not provide any government organisation with direct access to Facebook servers.”
    Yahoo: “We do not provide the government with direct access to our servers, systems or network.”
    Google: “We cannot say this more clearly—the government does not have access to Google servers—not directly, or via a back door, or a so-called drop box.”

    Washington Post: Ahem, It would not be “direct access” technically speaking, but the N.S.A. would get the data it wanted all the same.

    The New Yorker:

    James Clapper, the Director of National Intelligence, flat-out lied to the Senate when he said that the N.S.A. did not “wittingly” collect any sort of data on millions of Americans.

    • nooj says:

      Well, the ACLU is suing Clapper, which is mildly heartening, but it will probably go about as well as the last time they sued him.

      Wasn't the Judiciary supposed to put a check on the Legislature and Executive? They seem to be quite happy to accept the Executive's redefinition of law terms with well-established meanings:

      "Due process," the single most important law concept in America, now includes executive process!

      "Collection" now means a human looking at raw data, not an accumulation of items (such as data).

      This is some fucked-up, repugnant shit.