Civil libertarians have long ago lost faith in Barack Obama’s and his continuing expression of support for privacy and individual rights. Just in case anyone is still not convinced, consider the petition this month to the Supreme Court by the Obama Administration. Just last week, Obama waxed poetic about his commitment to privacy. Yesterday however, his Administration took another major swipe at privacy and asked the Supreme Court to reverse the United States Court of Appeals for the First Circuit, which held that the police could not conduct warrantless searches of your cellphone when you are arrested. The decision in United States v. Wurie is below.
Since there is a split in the circuits, there is a good chance for a granting of review by the Court. Civil libertarians are shuddering at the prospect of this Court getting their hands on this issue. The Obama Administration is again pitching its case to the most conservative members of the Court like Thomas, Scalia, Alito, and Roberts. It is an irony missed by many. While Democrats often discuss the need for a Democratic president to make appointments on the Court, the Obama Administration routinely relies on the right wing of the Court for its efforts to strip privacy rights and civil liberties.
The case from the First Circuit involves the arrest of Brima Wurie on suspicion of buying crack. The police seized his phone and used it to determine his address. They raided the home and found drugs, cash and guns. It is precisely the type of case that the Obama Administration knows will appeal to Alito, Roberts, and Thomas and probably pull in Kennedy.
The First Circuit simply held that the police could have easily gotten a warrant in this circumstance and should have. That is not enough for the Obama Administration. They want to strip cellphones of any and all protection after an arrest. What was truly striking about the case was the clearly frivolous argument presented by the Administration:
The government has . . . suggested that the search here was “arguably” necessary to prevent the destruction of evidence. Specifically, the government points to the possibility that the calls on Wurie’s call log could have been overwritten or the contents of his phone remotely wiped if the officers had waited to obtain a warrant. The problem with the government’s argument is that it does not seem to be particularly difficult to prevent overwriting of calls or remote wiping of information on a cell phone today. Arresting officers have at least three options.
First, in some instances, they can simply turn the phone off or remove its battery. . . . Second, they can put
the phone in a Faraday enclosure, a relatively inexpensive device “formed by conducting material that shields the interior from external electromagnetic radiation.” . . . Third, they may be able “to ‘mirror’ (copy) the entire cell phone contents, to preserve them should the phone be remotely wiped, without looking at the copy unless the original disappears.” Flores-Lopez, 670 F.3d at 809. Indeed, if there is a genuine threat of remote wiping or overwriting, we find it difficult to understand why the police do not routinely use these evidence preservation methods, rather than risking the loss of the evidence during the time it takes them to search through the phone. Perhaps the answer is in the government’s acknowledgment that the possibility of remote wiping guarded elsewhere by a co-conspirator. . . . Weighed against the significant privacy implications inherent in cell phone data searches, we view such a slight and truly theoretical risk of evidence destruction as insufficient. While the measures described above may be less convenient for arresting officers than conducting a full search of a cell phone’s data incident to arrest, the government has not suggested that they are unworkable, and it bears the burden of justifying its failure to obtain a warrant.
It is absurd to argue that, because it is theoretically possible that the contents of a device could be lost, all such devices should be stripped of all protections. However, it is a signature of the extreme views of this Administration. People can be arrested for a great variety of crimes, including relatively minor offenses. Yet, the Administration insists that a phone is no different from any other object found in a vehicle despite the fact that people now hold a huge amount of data, pictures, and messages on their phones. Today’s phones are little computers and are often used for everything from bills to personal communications. Indeed, the danger in this case is the fact that cellphones have changed since this arrest. This is how we ended up with the automobile exception to the Fourth Amendment. In Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court held that the warrantless search of an automobile could be done without a warrant because of the exigent circumstances and difficulty in securing a warrant. The Court held that there was a lower expectation of privacy for vehicles — a self-fulfilling prophesy when you strip away protections. Later when telephonic warrants allowed for such searches to be done within the confines of a warrant-based search, the Court simply ignored the new technology and the lack of exigency.
The Administration knows that this older phone allows for an easier way to strip away privacy protections from citizens. That is why it is moving now. The war on privacy is now truly one of the most prominent elements of the Obama legacy. More than any modern president, his Administration has led a full frontal attack on privacy and has largely succeeded as Democratic leaders follow sheepishly in his wake.
This is an important case and the potential loss for civil liberties could be immense. It is the right Court and the right technology for the Obama Administration to add to a growing list of unchecked police powers in the United States.
Source: Washington Post
Groklaw Founder Shutters Respected Legal News Site Over Government Surveillance Concerns
http://www.huffingtonpost.com/2013/08/20/groklaw-shut-down_n_3784703.html
LAWYER/CLIENT CONFIDENTIALITY IS A FARCE
PROTECT YOUR CLIENTS… ACT NOW!
Another comment gone. Would someone please grab it?
At the approx. the 54 min. mark:
Jacob Applebaum: Sure. I tend to not talk much about this, because it’s not my story. But many people around me, including my partner, have experienced some different kinds of extrajudicial harassment. … And I think this was intimidation. … But this is a kind of state terrorism. And when she attempted to file a police report in Seattle, in fact, the Seattle police laughed her off until we were able to involve the ACLU. And it was only when the ACLU was involved would they even take a police report. That was the third time she tried. And, of course, attempts to FOIA information about this do not return information. … And, yeah, I mean, it’s clear that it’s political harassment. –from the following interview
http://www.democracynow.org/2013/8/20/uk_media_crackdown_greenwalds_partner_detained
Excerpt:
AARON MATÉ: Jacob, as we talk about David Miranda, the partner of Glenn Greenwald, can you talk about what happened to your fiancée in your home?
JACOB APPELBAUM: Sure. I tend to not talk much about this, because it’s not my story. But many people around me, including my partner, have experienced some different kinds of extrajudicial harassment. In her case, it’s the case that she woke up with two men prowling outside of her house wearing night vision goggles, watching her sleep at 3:00 in the morning for about half an hour. We believe that someone was trying to plant a bug inside of her house. And I think this was intimidation. And I feel like either they are the worst, most bungling FBI or other intelligence agents in Seattle, or perhaps they didn’t realize the intimidation would backfire. But this is a kind of state terrorism. And when she attempted to file a police report in Seattle, in fact, the Seattle police laughed her off until we were able to involve the ACLU. And it was only when the ACLU was involved would they even take a police report. That was the third time she tried. And, of course, attempts to FOIA information about this do not return information. We’re being stonewalled even for processing notes about our FOIAs, so the so-called meta-FOIA. And, yeah, I mean, it’s clear that it’s political harassment.
And when I’ve gone through borders, similar to what David has experienced, you know, I’ve actually been, literally, for a time, disappeared by Immigration and Customs Enforcement. For example, when we were returning from Serbia, where I was giving a lecture and she was doing an art performance, the U.S. government literally told her that I did not exist, after they had taken me, and they would not—yeah, it was horrible for her. They would not let her even see me. They wouldn’t acknowledge that they had taken me. They told her she was mistaken, maybe even that she was crazy. And that’s a targeted, specific thing, where they are allowed to lie to you, where they suggest that you do not have a right to a lawyer, where they will withhold a bathroom, where they will threaten you with suggestions of rape in prison. And then your loved ones will also be targeted by this in various ways, especially if they’re traveling with you. They will experience some serious terror.
AMY GOODMAN: Jacob Appelbaum, what is at stake here? Can you explain, for people who are confused? I mean, in the United States, overwhelmingly people think that Edward Snowden is a whistleblower, not a traitor. But talk about what is at stake in the United States and around the world right now.
JACOB APPELBAUM: Sure. I think, at its core, what is at stake is the ability for a human being to have dignity and for journalists to have integrity with their sources. And from that, I believe that it threatens the whole concept of a free democracy. This is, I think, in a sense, being shown in the last 48 hours to the extreme. And I don’t mean that as hyperbole. But if everything is under surveillance, how is it that you can have a democracy? How is it that you can organize a political function or have confidentiality with a constituent or with a source, or with a friend or with a lover? That’s fundamentally an erasure of fundamental things that we have had for quite some time.
And planetary surveillance has very serious concerns, not the least of which is economic espionage, and not the least of which, I think, for me, personally, is about journalistic source protection. I mean, how is it that we will be able to protect our sources if there’s no way to securely meet, no way to communicate about having a meeting, no way to actually communicate about basic facts? There’s no such thing as on or off the record, when in fact you don’t control the record. And it’s not merely a matter of whether or not we have something to hide, because it is not us that will decide whether we have something to hide. It is an analyst somewhere. It is a machine learning algorithm somewhere.
And this is the thing that is perhaps the most terrifying: Because people are flagged, then other people are dispatched. Each person plays their role, and more and more a machine plays that role, a machine that does not understand constitutional protections, does not understand the Magna Carta or the Bill of Rights, does not understand humanity. It’s a machine. And the humans, they behave like machines, too, which is a great fear, that humans will start to behave like machines.
And so, what is at stake is in fact democracy, where we still have it, and the free press.
AMY GOODMAN: Jacob Appelbaum, I want to thank you very much for being with us, computer security researcher who himself started to be harassed by government authorities after working with WikiLeaks.
“Obama is a snake….” ~ Oliver Stone
“”We have to get off of this terrorism thing. The problem is, we go around the world … every public protest, every demonstration against the government, whether it’s civil rights, the Vietnam war, students against Iraq; these are very important protests; they grow out of the Arab Spring. It comes out of the people,
… But what is being targeted here is not just terrorists but those groups. In other words, anybody who protests government policies in the future — whether it’s Wall Street bankers, you protest against them — you’re going to be targeted as a potential threat.” ~ Oliver Stone
Jill,
Where do you get your news?
rafflaw, you have been a real victim of propaganda for a very long time. You completely changed your position on so many things after Obama was elected. So you can take what I said seriously and look at what happened to you or you can blow it off with sarcasm, but you were one of the people who completely changed. Don’t you ever wonder why that happened? You have only recently been able to see what is actually happening. You are a person who told me to get off a blog dedicated to free speech calling me a member of the tea party. I never, ever, thought you would do any of that when I read what you wrote under Bush. I mean, I never dreamed you would do such things as I saw here.
Somehow you have gone back to your Bush principles in the last 2 months or so. I’m very glad about that. But there has yet to be one person from this blog who engaged in every kind of justification, rationalization and denial about Obama who has had the courage and self honestly to understand what you did and why.
So yes, you absolutely need me to tell you about propaganda. You have been unable to see through it, literally for years.
From Pierce’s analysis of Toobin in The Snowden Effect, Continued: “What if Snowden’s wrong? What if there is no pervasive illegality in the National Security Agency’s surveillance programs?”
It seems to me that Snowden has already earned his keep by demonstrating the pervasive lies of the administration and documenting a secret, fundamentally anti-democratic process that has claimed to change the relation between the government and citizens.
Democracies cannot survive the government secretly changing the constitution or taking additional power without the knowledge of the governed. .
Snowden has given citizens the information necessary to force these issues into the courts for proper adjudication and into the political arena for vigorous, public debate.
Snowden did the right thing. Snowden is far more that just a whistle blower. These issues are so fundamental and so important that Snowden has to rank as one of the great patriots of our time.
When one considers that he acts place him in great peril including lifetime imprisonment or, considering the stated policies of this administration, possible assignation; Snowden is also a great hero as well.
Jill,
My point–that I didn’t make too clearly–was that Huffington Post ran the Reuters story:
Glenn Greenwald To Publish UK Secrets After Britain Detains Partner
Reuters | Posted: 08/19/2013
http://www.huffingtonpost.com/2013/08/19/glenn-greenwald-uk-secrets-britain-detains-partner_n_3779667.html
Jill,
I am so glad that I have you to explain to me how bad the propaganda is. I wouldn’t be able to figure it out myself.
seamus: 🙂
@Jill,
Unfortunately the main difference between the current and previous administrations may be that Obama chooses the “nuclear” option, while his predecessor choose the “nucular” option. Morally Obama may be on even shakier ground, because unlike Bush The Younger, Obama seems to actually be running his administration.
No, incorrect. Glenn put it up on his twitter site, where Flufflington was soundly ridiculed for their lies. Reuters retracted, Huff Po did not (as of yesterday). Thank you, @kansasalps – great job, Reuters and HuffPost http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/19/no-glenn-greenwald-didnt-vow-vengeance-he-said-he-was-going-to-do-his-job/ … – Reuters has now corrected this all
It’s more than a money making site. It’s a propaganda organ of the state for liberals. Infowars isn’t a bad site for breaking stories either. If you keep reading them both, you’ll understand what they are trying to get you to think.
Your idea of going to different sites is a really good way of getting at things.
Jill,
BTW, it was a Reuters report that misrepresented what Greenwald said.
Greenwald spoke to the media, in Portuguese, at the Brazilian airport where he met Miranda upon his return. Here is the full quote from Reuters’ coverage:
“I will be far more aggressive in my reporting from now. I am going to publish many more documents. I am going to publish things on England too. I have many documents on England’s spy system. I think they will be sorry for what they did. […] They wanted to intimidate our journalism, to show that they have power and will not remain passive but will attack us more intensely if we continue publishing their secrets.”
The Reuters report focused on Greenwald’s “they will be sorry” comment and implied that Greenwald would be publishing more documents in response to the government’s decision to detain his partner. Greenwald took issue with the framing, saying the Reuters report neglected to include key context, including the questions that prompted his comments…
http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/19/no-glenn-greenwald-didnt-vow-vengeance-he-said-he-was-going-to-do-his-job/
Jill,
I know that. That’s one of the reasons I usually check out several articles on a subject. Huffington Post is a money making site. (One of its founders was Andrew Breitbart.) Still, it’s a good “go to” source for breaking stories.
Elaine, The internet isn’t free of propaganda either. Just yesterday, trusted “liberal” newz site, Huffington Post, lied to their readers about what Glen had actually said. It was an attempt to smear him and draw people away from the content of what was being revealed.
The govt. realizes where people go to and they have their people stationed literally, everywhere. Look at infowars. If you read it consistently, you can see a sustained position they are pushing on behalf of the govt. I really do believe they are a right wing honey pot. But leftist must be very careful as well. We are given pitches designed to get us to think and act on autopilot. It works, I’ve seen it and we have a nation lying in ruins because leftists did just that–think and act as they were told.
Jill,
I do think many of us understand the level of propaganda aimed at us by “corporate” media. It’s one reason I get most of my news on the Internet and via the Turley blog now. My husband and I rarely watch the Sunday morning “news” program these days.
I don’t disagree Elaine, I don’t think many of you here understood the level of propaganda aimed at you by various supposed “liberal” media outlets and the MSM. The govt. has taken our population and they use FMRI and other tests to understand how to manipulate us. They pitch us in exquisite sensitive ways. What I saw resulting from this is an unraveling of our society.
On the right the govt. was whipping people up to hate liberals. It was appalling. But on the left, the govt. was able to whip up leftists into to a level of hatred I have not personally experienced before in my lifetime. When people start referring to others as vermin and cancer cells they are entering very dangerous territory. And no one was asking on the right or the left, who benefits from all the citizens hating each other?
I find the paid apparatchiks of this propaganda appalling. I don’t know how anyone could take a paycheck for dismantling their own society. And many in the MSM have had no problem with being paid lackeys and cheerleaders. It has been effective on the right and left. We can only fight back by realizing when we are being lied to and holding on tight to a set a values we will not trade out for any reason.
Elaine M.,
There are two comments in moderation. The second is an abbreviated version of the first. (I can see them, now, with the yellow message: “Your comment is awaiting moderation.”) Thanks.