Crapaganda.com

In a succinct one-page ruling, U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas declared that the law authorizing the government to obtain cellphone records without a search warrant was unconstitutional.

“The records would show the date, time, called number, and location of the telephone when the call was made,” Judge Hughes wrote in the decision, dated Nov. 11. “These data are constitutionally protected from this intrusion.”

Judge Hughes’ decision comes as the U.S. government is facing increasing judicial challenges to its practice of obtaining information about the location of individuals without a search warrant. Last week, the Supreme Court heard oral arguments in a case where the government placed a GPS tracking device under a vehicle and monitored the driver’s movements for a month without a search warrant.

During the argument, Chief Justice John Roberts said to Michael Dreeben, deputy solicitor general of the Justice Department: “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” The Justice Department argues that people have no expectation of privacy on public roads.

Cellphone records are governed by the Electronic Communications Privacy Act, a 1986 law that permits law enforcement officers to obtain certain digital records – such as some e-mail and cellphone records – without a search warrant. A coalition of technology companies—including Google Inc., Microsoft Corp. and AT&T Corp.—is lobbying Congress to update the law to require search warrants in more digital investigations.

At the same time, judges in lower courts have been questioning the constitutionality of the law, which only requires officers to show “specific and articulable facts” the electronic records sought are “relevant and material” to an ongoing investigation. For physical searches of a person’s home, the government is required to show probable cause that a crime was committed and obtain a search warrant.

Since 2005, more than a dozen magistrate judges have written opinions denying applications for court orders to track cellphones without search warrants. The nation’s roughly 500 magistrate judges handle applications for search warrants and other types of electronic surveillance in federal courts.

Of course, some have upheld warrantless searches. Last week, U.S. District Court Judge Liam O’Grady ruled that the government could obtain data from the Twitter accounts of three WikiLeaks without a search warrant.

Last year, Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas issued an opinion denying the government access to 60 days worth of information about a cellphone subscriber’s location and phone calls, without a search warrant.

Magistrate Judge Smith wrote that although cellphone tracking wasn’t envisioned by the writers of the Constitution, it had become so precise and pervasive that “for a cellphone user born in 1984, however, it is now conceivable that every movement of his adult life can be imperceptibly captured, compiled, and retrieved from a digital dossier somewhere in a computer cloud. Now as then, the Fourth Amendment remains our polestar.”

The government appealed, saying that the Fourth Amendment, which protects against unreasonable searches and seizures, does not apply because “a customer has no privacy interest in business records held by a cell phone provider, as they are not the customer’s private papers.” The government also challenged Judge Smith’s description of the accuracy of location tracking as “inaccurate or misleading,” and submitted an affidavit from cellular provider MetroPCS Wireless Inc. stating that the average coverage radius of its cellular towers was about “one or two miles.”

The district court ruling was short, but declarative. It affirmed Magistrate Judge Smith’s decision on constitutional grounds. “When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause,” Judge Hughes wrote. “The standard under the [existing law] is below that required by the Constitution.”

Source: Wall Street Journal

Law enforcement organizations are making tens of thousands of requests for private electronic information from companies such as Sprint, Facebook and AOL, but few detailed statistics are available, according to a privacy researcher.

Police and other agencies have “enthusiastically embraced” asking for e-mail, instant messages and mobile-phone location data, but there’s no U.S. federal law that requires the reporting of requests for stored communications data, wrote Christopher Soghoian, a doctoral candidate at the School of Informatics and Computing at Indiana University, in a newly published paper.

“Unfortunately, there are no reporting requirements for the modern surveillance methods that make up the majority of law enforcement requests to service providers and telephone companies,” Soghoian wrote. “As such, this surveillance largely occurs off the books, with no way for Congress or the general public to know the true scale of such activities.”

That’s in contrast to traditional wiretaps and “pen registers,” which record non-content data around a particular communication, such as the number dialed or e-mail address that a communication was sent to. The U.S. Congress mandates that it should receive reports on these requests, which are compiled by the Administrative Office of the U.S. Courts, Soghoian wrote.

If law enforcement wants to intercept e-mail or instant messages in real-time, they are required to report it. Since 1997, federal law enforcement has requested real-time intercepts only 67 times, with state law enforcement agents obtaining 54 intercept orders.

Soghoian wrote that those low figures may seem counterintuitive given the real-time nature of electronic communications. But all of the communications are stored, he noted.

“It is often cheaper and easier to do it after the fact rather than in real-time,” Soghoian wrote.

Cox Communications, a major U.S. service provider, charges $3,500 for a wiretap and $2,500 for a pen register. Account information, however, costs a mere $40.

Soghoian found through his research that law enforcement agencies requested more than 30,000 wiretaps between 1987 and 2009. But the scale of requests for stored communications appears to be much greater. Citing a New York Times story from 2006, Soghoian wrote that AOL was receiving 1,000 requests per month.

In 2009, Facebook told the news magazine Newsweek that it received 10 to 20 requests from police per day. Sprint received so many requests from law enforcement for mobile-phone location information that it overwhelmed its 110-person electronic surveillance team. It then set up a Web interface to give police direct access to users’ location data, which was used more than 8 million times in one year, Soghoian wrote, citing a U.S. Court of Appeals judge.

Those sample figures indicate the real total number of requests is likely much, much higher, since U.S. law does not require reporting and companies are reluctant to voluntarily release the data.

“The reason for this widespread secrecy appears to be a fear that such information may scare users and give them reason to fear that their private information is not safe,” Soghoian wrote.

In 2000, the House of Representatives considered legislation that would have set standards for reporting requests by police for location information, such as the tracking of mobile phones. But the Department of Justice opposed the bill, Soghoian wrote, saying the reporting requirements would be too time consuming.

Soghoian argues that Congress should have oversight of these new surveillance powers. He recommended mandating that the Administrative Office of the U.S. Courts compile statistics on requests for stored communications as they do now for wiretap orders. The information could be sent to the office by the courts rather than the DOJ.

“These reporting requirements would provide Congress with the information necessary to make sound policy in the area of electronic surveillance,” Soghoian wrote.

Source: MacWorld

While the country was embroiled in a national debate over excessive government surveillance in 1974, President Gerald Ford authorized the Federal Bureau of Investigation to conduct warrantless domestic surveillance, according to a classified memo recently obtained by the Center for Investigative Reporting.

The memo, signed Dec. 19, 1974, was issued just one month before the Senate established an 11-member panel, known as the Church Committee, to investigate government surveillance programs. The Church Committee would ultimately uncover other unconstitutional spying activities, such as that conducted by the National Security Agency under the rubric of Operation Shamrock. Two days after the memo was signed, investigative reporter Seymour Hersh, writing in The New York Times, disclosed a covert government spying program that focused on monitoring political activists in the U.S.

Ford became president after Richard Nixon’s resignation in the wake of the Watergate spying scandal, and he later supported passage of the pro-privacy Foreign Intelligence Surveillance Act of 1978, which placed restrictions on wiretapping and required law enforcement to obtain permission from a special court to conduct domestic intelligence surveillance.

But according to the recently released top-secret memo, just two years earlier, Ford had secretly authorized Attorney General William B. Saxbe “to approve, without prior judicial warrants, specific electronic surveillance within the United States which may be requested by the Director of the Federal Bureau of Investigation.”

Ford wrote in the memo to Saxbe that he had “been advised by you [Saxbe] and by the Department of State that such surveillance is consistent with the Constitution, laws and treaties of the United States.”

“This could be Bush after 9/11 or Obama after becoming president, but it’s President Ford 35 years ago, coping with Cold War struggles,” John Laprise, a visiting assistant professor at Northwestern University, told the center. “It’s really a stunning document that raises all sorts of questions.”

Ford’s order authorized surveillance for foreign intelligence and counterintelligence purposes, and would have involved spying on Americans or foreigners in the U. S. who were suspected of spying for foreign countries or foreign-based political groups. The open-ended surveillance authority could only be revoked by Ford or by order of a future president.

It’s not known to what extent the surveillance might have involved U.S. citizens or whether there was a specific incident or investigation that prompted the memo. In the memo, Ford writes that he “carefully reviewed the issues raised in your request for confirmation of authority and delegation with respect to warrantless electronic surveillance within the United States.”

The surveillance had to be in service of several objectives — to protect the United States against attacks by a foreign power, to obtain foreign intelligence that was deemed to be essential to national security, or to obtain information that the secretary of state or the national security adviser deemed necessary to foreign affairs.

Ford wrote that the warrantless surveillance would only be authorized with the personal approval of the attorney general “upon submission of a written request by the director of the Federal Bureau of Investigation providing complete justification for the conduct of such surveillance, including identification of the agency and presidential appointee initiating the request” and that only “the minimum physical intrusion necessary to obtain the information sought will be used.”

The National Archives obtained the memo, which it shared with the Center for Investigative Reporting, based in California. A previous, slightly redacted version of the memo was released in 2006.

A federal judge ruled last week that the George W. Bush administration violated the Foreign Intelligence Surveillance Act when the NSA eavesdropped on the telephone conversations of two American lawyers who represented a now-defunct Saudi charity.

Source: Wired