Surveillance

One ringy-dingy

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One ringy-dingy

marke@sfbg.com

STAGE “Oh, Ernestine has plenty to say about the current phone-surveillance thing,” the irrepressible Lily Tomlin told me, referencing her famous “one ringy-dingy” phone operator character and the recent NSA spying revelations. (Tomlin was driving down an LA freeway on her way to do some errands, popping in and out of coverage on her hands-free.)

In fact, another classic phrase from Ernestine, who’s been snooping on calls since Tomlin’s 1970s days on Martin and Rowan’s Laugh-In, rather appropriately sums up the civilian surveillance clusterbuck: “Have I reached the party to whom I am speaking?”

http://www.youtube.com/watch?v=k9e3dTOJi0o

“Back during the whole Bush wiretapping time, Ernestine became an emblem for political cartoonists,” Tomlin continues. “But her association with government shenanigans goes back through Iran-Contra, all the way to Nixon and Watergate. In fact, during Iran-Contra in the ’80s, I was performing at the Emmys — I was up for one that year — and I called up G. Gordon Liddy to do a skit with Ernestine. He was going to play Oliver North! And I would be eavesdropping on him. He agreed, but then I backed off because I thought I was making too much light of the whole thing.”

The rogue’s gallery in the above paragraph gives some indication of Tomlin’s longevity in the biz, as well as her necessity. “I’ve been performing since I could basically walk,” she says. “When I was growing up in Detroit, I used to hang a blanket as a curtain on my back porch and put on shows for my family and neighbors. And then, because it started to get dangerous on the streets, I immersed myself in afterschool arts programs. I started incorporating film in to my performances, as well as comedy, drama, a little of this and a whole lot of that. I think I was the original performance artist!”   

Along with Ernestine, Tomlin’s essential characters like Edith Ann, Mrs. Beaszley, Sister Boogie Woman — maybe even her characters from 9 to 5 and Big Business, please? — will be in tow for “An Evening of Classic Lily Tomlin” worth trekking up to Napa to catch. The show, a version of which Tomlin performs 30-50 times a year, is a a kind of constantly evolving greatest hits extravaganza. “These characters never leave me; I’m constantly playing with them in my head, like some weird kind of checkerboard,” Tomlin said with a laugh. “But they have to say something, something relevant. Somehow, of course, it always seems like there’s something for them to say, especially lately.”

Now 73, Tomlin’s coming off a season on TV as the pot-happy hillbilly grandma from Reba McEntire’s sitcom Malibu Country and the Tina Fey movie Admission. She’s also a regular as Lisa Kudrow’s mother on web series Web Therapy, an avid social media user, and a crusader for several causes. “Darn good genes,” she says when I gasp at her energy, roughly 1000 times any other human’s. “I had an aunt just pass away at 91. Marke, she would have lived to 120 if the smoker’s emphysema hadn’t slowed her down.”

And her maverick feminist spirit still shines bright. “There’s more opportunity for women in this business now than when I started out. Working with Tina and Lisa was inspirational, and now with new media, the possibilities are really opening up. I mean, people used to think women did comedy only because they were too ugly to do anything else. When I first started getting better known, I can’t tell you how many people came up to me saying, ‘Oh, Lily, you’re so much prettier than you are on television!’ Ha. Can you believe that?”

“AN EVENING OF CLASSIC LILY TOMLIN”

Doors 7pm, show 8pm, $70-$85

The Uptown

1350 Third St., Napa

(707) 259-0123

You can’t see me

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You can’t see me

caitlin@sfbg.com

SURVEILLANCE It’s all a mess: the government is suddenly (to those of us waking from our Twinkie nap) spying on us. Mulder and Scully were right, trust is for the foolish and undisturbed sleep is for the ignorant.

All the more reason to go out. Authoritarian regime is no excuse for poor style, says New York high tech fashion designer Adam Harvey. And armed with his projects, drone-defeating tactics can look damn good.

Even before Edward Snowden’s heroic leak of documents laid bare the NSA’s wide-ranging surveillance of American citizens, Harvey was busying himself merging privacy rights with fashion. Witness his LED-aided clutches that deflected the flash of cameras — the ultimate accessory for A-list independents (“Camoflash”, 2009).

But perhaps you are more of the sporty type? Harvey’s newest collection, “Stealth Wear” includes a half-hoodie that deflects thermal imaging surveillance. Heat-seeking systems won’t be able to see you, but that babe in the club sure will. His designs have an anti-colonial gaze: two “Stealth Wear” garments take the form of burqa and hijab. He’s also developed “CV Dazzle”, a series of makeup looks that foil facial recognition software and “OFF Pocket”, a sleek envelope that blocks one’s cell phone from sending or receiving signals.

We caught up with him through an insecure email account.

SFBG “CV Dazzle”‘s look seems very of-the-moment when it comes to the avant-garde fashion you see in clubs. What’s the inspiration? 

Adam Harvey The first look, with the black-and-white makeup, developed from my fascination with the Boombox scene in London. I studied party photographs as well as tribal face painting, especially from Pacific Islands. What I found was that only one of these styles worked, club fashion. Tribal body decoration does more to enhance key facial features which make a face easier to detect. The bold, ambiguous looks of the club scene were more algorithmically resistant. From there, I worked with Pia Vivas, a hair stylist to create the first look. And then collaborated with DIS Magazine to create the second and third looks.

SFBG How have the recent NSA revelations informed your work? 

AH The news struck while my collaborator and I were planning production for the “OFF Pocket.” It’s the first time I’m taking an art project and turning it into a marketable product. A lot of my work in privacy arts is speculative and provocative, but I think some concepts can be even more provocative when they’re accessible to more people. What happens when countersurveillance goes mainstream? That’s a discussion we need to have because if the government doesn’t respect privacy, then I think we should have the right to countersurveillance.

SFBG Where is “OFF Pocket” at in the production process? Have you sent one to Edward Snowden? 

AH It’s very close. I’ve gone through a lot of prototyping and testing to ensure that the product works well. Once a phone is inside and the case is properly closed, you really can’t access any part of it. If I knew where Edward Snowden was, I would send him a thankful dozen.

 

Panel sees Orwellian overtones in NSA spying scandal

Sasha Cuttler
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Panel sees Orwellian overtones in NSA spying scandal

It is now public knowledge that the NSA has been spying on us (unless you’ve been living under a rock and, lucky for you, exempt from digital surveillance) thanks to the information leaked by Edward Snowden last week.

In the wake of this scandal, people crowded into St. John’s Presbyterian Church in Berkeley on Tuesday, June 11, to participate in a panel discussion titled “Our Vanishing Civil Liberties,” centered around the intricacies of government intrusion and spying in the age of the War on Terror.

Among the panel members were Daniel Ellsberg, famed leaker of the Pentagon papers; Birgitta Jónsdóttir, member of the Icelandic Parliament; Normon Solomon, activist and author; and Nadia Kayyali, a legal fellow with the Bill of Rights Defense Committee.

As Kayyali noted, we now know about the NSA’s capability of obtaining the metadata for all domestic phone calls in the United States, which can include the call length, who you’re calling and in some cases the location of the phone calls.

So is Snowden a patriot or a traitor? For the panel members, the answer was obviously in support of the former. However, for California’s own US Sen. Dianne Feinstein, whose name the crowd constantly met with a crescendo of hissing, Snowden is a criminal, guilty of treason.

Solomon rallied against officials like Feinstein, who he believes should not be entrusted with the protection of our privacy. “What we discover is that the leaders in Congress, the leaders in the White House, the leaders in the courts unfortunately as well cannot be trusted with our lives and that includes our civil liberties,” he said.  

Ellsberg spoke of the comparisons between Snowden and Bradley Manning, an ex-U.S. soldier arrested in 2010 for leaking classified information to WikiLeaks, noting that Manning’s leaks dealt solely with issues “over there,” specifically in Iraq and Afghanistan, while Snowden’s case is inherently more domestic.

“The American people, like other humans, are unfortunately not that concerned about what is done to people over there,” said Ellsberg. “Especially when their leaders tell them that it is necessary to their safety. What strikes me about Snowden is that it affects us, you, everybody.”

However, the repercussions of Snowden’s leak are not solely rooted in America. Jónsdóttir informed the crowd that many European Union countries are concerned with the extended power of the NSA. 

“Our leaders in the many different countries in Europe are so worried about this probing into the privacy of citizens of the EU that they are thinking of building a fortress around Europe to protect us against the surveillance and the invasion of our privacy from the United States,” said Jónsdóttir.

Our challenge now, as Ellsberg stated, is escaping the abyss of unchecked government surveillance. But can we do it? For this question, Ellsberg didn’t have an answer.

The panel raised intertwining issues of government overreach and public apathy, painting the picture of a United States embodying the Orwellian dystopia of 1984 combined with Aldous Huxley’s portrait of apathetic hedonism in Brave New World.

However, Kayyali appeared optimistic for the future, calling upon education and public discussion as the only potential to escape from the intrusive acts of the NSA.

“Never stop educating yourself,” Kayyali told the crowd. “Take everything that you’ve learned here tonight and share it with those around you. The only way we are going to see any change is if we have an educated populace, something that we are severely lacking right now.”

Without action, Ellsberg warned of the potential for a country in which privacy is nonexistent, or what he colloquially refers to as, “The United Stasi of America.”

In her closing statement, Jónsdóttir offered this coda in the form of a poem: “Now is the time to yield to the call of growth, to the call of action. You are the change makers. Sleepers of all ages, wake up now.”

NSA surveillance scandal goes full tilt clown

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The domestic eavesdropping scandal is now entering week three in the news (it’s existed for real a lot longer) and as these things tend to do, the political posturing is headed into Clownland.

Yesterday, Congressman Peter King (R-NY) demanded that UK Guardian journalist (and attorney) Glenn Greenwald be arrested. Not because of anything Greenwald has done, but because Greenwald is threatening to expose CIA assets around the world (Greenwald denies this). Odd that a lawmaker wouldn’t be able to make this distinction and even odder that when a CIA asset was actually exposed in rhe last decade (by an employee of the Bush Administration), King wasn’t this vociferous.Greenwald, fairly consistent on the matter of civil liberties, is a pretty bright guy and snarkily responded that King’s newfound enthusiasm for prosecuting terrorists is somewhat of a joke. King has been a long time supporter of the IRA. You’d think that as a congressman whose Long Island district was impacted hard by 9/11 would be fairly tough on domestic terror, but it hasn’t hurt King electorally at all.

For two reasons. One is the obvious one–The IRA’s membership does bear a strong physical resemblance to King’s constituency, ie, both white and not Muslim, ergo, not terrorists. The second is that the IRA doesn’t bomb New York. London, yes, Manhattan, no. In fact, the US has been a source of IRA cash, donated by people that don’t see the group as terrorists.

Roll that over in your head. The US doesn’t meddle in the affairs of Northern Ireland by planting military bases there (there has been a slight flap over the use of Irish airports for US military purposes). Mostly, American involvement has been muted and even handed, especially in the late 90’s. Therefore the IRA has never attacked the US. Which wouldn’t be all that difficult, given the huge number of Irish-Americans and the ease that an IRA asset or two could fit in.

Because the US doesn’t militarily meddle in Ireland’s affairs, The IRA has no interest in America. 

Perhaps if the same philosophy extended to the Middle East, eh? Nah, better that the clown show go into overdrive, right?

 

 

A ‘reasonable’ cheek swab

Andrew Lam
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A ‘reasonable’ cheek swab

Rebecca@sfbg.com

On June 3, the U.S. Supreme Court ruled that it’s legal for law enforcement to collect DNA samples from people who are arrested — even when the individuals taken into custody are never convicted of a crime. The justices were narrowly split, and the decision immediately drew criticism from civil liberties advocates like American Civil Liberties Union, who characterized it as a blow to American’s Fourth Amendment right to privacy.

Does the historic ruling carry implications for law enforcement practices in California? Not exactly. As it turns out, current state law allows police to collect DNA samples through cheek swabbing on a far more routine basis than in Maryland, where only a handful of serious offenses can trigger this kind of search. And in the Golden State, fewer protections are in place for arrestees.

The Supreme Court issued its ruling with a narrow 5-4 vote. “The majority’s take was that cheek-swabbing is reasonable … even without any suspicion of wrongdoing by the arrestee, because the intrusion is minimal, the arrestee has less of an expectation of privacy than a typical citizen, and the state has a strong interest in using DNA to identify people,” explained Andrea Roth, a law professor at the University of California at Berkeley and founding member of a group that studied and litigated forensic DNA typing.

In contrast, Roth said, conservative Justice Antonin Scalia “was concerned that this is the first time that we’ve ever allowed searches of someone’s body, without any type of individualized suspicion, for the purpose of general crime-solving. He thought that was a line the Constitution draws in the sand, and that the law is on the wrong side of that line.”

Despite drawing a scathing critique from a conservative Supreme Court justice, Maryland’s system for the collection and use of DNA is actually much narrower in scope than the law that went into effect in California in 2004, when Proposition 69 passed.

Maryland’s law “only applies to a limited number of offenses, it doesn’t apply at all to people who are simply arrested but not charged, and they can only make use of the sample after there’s been a judicial finding of probable cause,” Michael Risher, a lawyer with the Northern California Chapter of the American Civil Liberties Union, told us.

“California doesn’t have any of those safeguards,” Risher added. “It’s a different law.”

2.1 MILLION SAMPLES

When Prop. 69 was approved, California voters initially sanctioned DNA collection from people convicted of felony offenses. But on January 1, 2009, a different provision of that initiative kicked in, expanding it to allow police to collect DNA samples from “any adult person” arrested for “any felony offense,” regardless of whether that person is ever charged or convicted of a crime.

When used as a form of identification, DNA samples are processed to yield a 26-number sequence that aids law enforcement in verifying suspects’ identities.

Once they’re collected and used to produce unique identifiers, those cotton-swabbed samples aren’t destroyed; instead, they remain in the hands of a state agency. “The problem is that the state keeps your samples,” Roth said. “It’s not like they develop the 26-number profile and then throw the rest of the sample in the trash. So if you’re in a database, state officials still have your entire DNA strand.”

According to the California Department of Justice, since the start of the program, the DNA data bank had received and logged more than 2.1 million samples as of March 31. The data bank is shared with the National DNA Index System (NDIS), part of the Combined DNA Index System (CODIS), which is linked to federal records.

In its decision, the nation’s highest court determined that “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure.”

Yet civil liberties advocates point out that the information contained in a DNA sample can reveal much more about an individual than either a fingerprint or a unique identifier generated from a sample.

“There’s a basic difference between your DNA and your fingerprint,” Risher explains. “Your fingerprint doesn’t tell you anything about yourself. And your DNA is your genetic blueprint. The profile that they generate might not say a lot about you … but they are keeping these physical samples. Current law says they can’t be tested for sensitive things, but laws change, and people can violate them.”

And a properly preserved DNA sample can last hundreds of thousands of years — essentially forever.

ANTI-WAR PROTESTER ASKED FOR DNA

Lily Haskell has been fighting the state of California over DNA collection ever since her arrest in March of 2009, at an anti-war demonstration in downtown San Francisco. Held to commemorate the anniversary of the start of the Iraq war, the protest was staged in Civic Center Plaza. “With no prior warning, police charged the crowd, penned us in, arrested us, and charged us with trying to incite a riot,” she told us.

But hours later, after she and a handful of others had been processed at the San Francisco County Jail, Haskell was summoned from her holding cell and presented with what struck her as an odd request. Although she says she had already been fingerprinted, and her identity already confirmed, an officer “told me I had to provide a DNA sample.”

Her first instinct was to decline. “I didn’t believe it was just to have to comply with that,” she said. “I told them I believed it was my right to refuse.” Haskell was told that if she continued to resist the sample collection, she’d be charged with a misdemeanor and would likely spend a few additional nights in jail. So she relented.

Although she was neither charged with a crime nor tried for a felony or any other offense after being released from jail 24 hours later, Haskell’s DNA sample remains in the state databank. Now she’s a lead plaintiff in a class action lawsuit filed by the ACLU.

Haskell said she’s never tried to get her DNA expunged from the state database, because she sees her participation in the lawsuit as an important challenge to a law she views as unjust. “I don’t want my DNA to be held,” Haskell says, “and I don’t want anybody else’s DNA to be held, either.”

Individuals who have tried to go the route of having DNA samples removed have found it can be tedious. “In California, the process of getting your DNA out of a database if your case ends in dismissal or acquittal is an onerous one,” Roth explained. “You have to pay your own filing and attorney fees, you have to wait until the statute of limitations has run, the judge has complete discretion to deny your motion, and you can’t appeal the judge’s decision.”

Legal upshot still unclear

Meanwhile, ACLU attorneys in Northern California were closely watching the Supreme Court case, Maryland v. King, to see how it might affect their class-action challenge to Prop. 69, a case known as Haskell v. Harris. Although a divided panel of Ninth Circuit judges upheld the law in February of 2012, the court took the unusual step last July of voting to rehear the case en banc, with a nine-judge panel. However, the court issued an order after oral arguments saying it wouldn’t issue a ruling until King had been decided in the Supreme Court.

“Yes, they will have to do something with our case — but what they do is actually up to them,” Risher explained. “There’s no binding opinion in our case right now. Everything was up in the air waiting for King to be decided.”

Risher added that in future arguments, the ACLU plans to highlight the differences between Maryland’s DNA collection law and California’s far broader Prop. 69. “If King was a 5-4 decision with a law that was so narrowly focused, with those safeguards,” he said, “well okay — this one crosses the line.”

Icelandic MP Birgitta Jónsdóttir talks asylum options for NSA whistleblower

Sasha Cuttler And Mary Magee
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Birgitta Jónsdóttir is waiting for Edward Snowden to drop her a line.

The Icelandic Member of Parliament and Wikileaks supporter happens to be in San Francisco at the moment, working to raise awareness about the trial of Wikileaks whistleblower Bradley Manning, and preparing for a speaking engagement this evening where she’ll appear alongside Daniel Ellsberg, who leaked the Pentagon Papers in 1971.

Snowden, meanwhile, is presumed to be somewhere in Hong Kong – but as of the most recent media reports, his exact whereabouts were unknown (at least to reporters). Snowden is the 29-year-old former employee of intelligence contractor Booz Allen Hamilton, who came forward Sunday as the source responsible for leaking top-secret U.S. government documents to The Guardian (UK) and The Washington Post revealing a widespread digital surveillance program.

Jónsdóttir’s International Modern Media Institute issued a statement on June 9 vowing to “discuss the details of his asylum request” and to investigate the legal and security implications of the Iceland option.

“I have not gotten into contact with him,” Jónsdóttir said in a phone interview with the Bay Guardian this morning. “But … we have sent out the message that he can be in contact with us if he chooses, to let us know exactly what he wants.”

She added, “I’m quite concerned, because there are no direct flights to Iceland. … I’m just worried about the extradition process in other countries – if he needs to do a layover, or if we’re not quick enough to grant him asylum. And, frankly speaking, one of the parties in the government in Iceland is never going to agree to support it. So, it’s tricky.”

There may be better places for Snowden to seek asylum, Jónsdóttir added, but she and others are still investigating the possibilities. “I don’t know if Ecuador can take any more refugees from the political prisoners of the information age,” she said, referencing the country that granted Wikileaks founder Julian Assange political asylum, and has granted him residency in the Ecuadorian embassy in London for a year.

“But I really think emphasis in this case should be on all this heavy sentencing on … whistleblowers and people that are doing research and trying to bring information into the public domain,” Jónsdóttir said. “I feel this is more like a witch hunt than the ordinary justice system,” she added, “if you look at the crimes they’re accused to have done, which in many people’s opinion, are not crimes at all.”

For now, it’s still too early to say where Snowden will ultimately wind up. “The ball is in his hands,” Jónsdóttir said. “In the meantime, we will check out all the legalities and possibilities. We would obviously have to do it through secure ways. We have reached out to [journalist] Glenn [Greenwald] and James Ball, who has also been writing about this for The Guardian. And we’ll see if we get a message from him or if we can communicate directly. As soon as we have any information, we will make a statement.”

Stop meddling

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Stop meddling

The mega flap over the National Security Administration’s electronic surveillance rages on this week. The chief leaker, Edward Snowden is hied away in Hong Kong, President Obama has assured the American people that he’s “only do this to protect the people”, which is apparently how most Americans see it. Civil libertarians are outraged, the Republican “gotcha” media overjoyed and as there has been relative peace post 9/11 on the homefront (plus the realization that “online privacy” is mythical in and of itself), this too shall pass.

Too bad that it will. Not just because government snooping (and its corporate twin) are an ugly intrusion but really because the underlying story–also the story of 9/11 itself–will fade. The actual cause of Middle Eastern nationalism and the terrorism that comes with it isn’t that “Muslims are crazy” or “they don’t know how to be free and we must show them” but is actually the ceaseless meddling in the affairs of these nations that has characterized US and the UK’s dealings with same for 100 years.

Overthrowing popular regimes hostile to American interests like Iran, 1953 or propping up the Shah, Mubarak, Saddam (a former “ally”) or Assad has created legions of pissed off Middle Easterners (that at various points admired the US as the #1 nation in the world). High unemployment among the young plus ceaseless anti-American propaganda from their state run media’s is part of it, but were it not for a few incontrovertible facts–The US’ automatic backing of Israel in all matters as well as fealty to the Saudi royal family’s autocracy has convinced millions of people that America is no friend to them at all. 

Drone bombing ain’t helping, either.

It isn’t like they don’t know why, either. Protecting the interests of petroleum companies has been priority #1–used to be called “protecting the oil supply” (the “Carter Doctrine”), but at this point, that is a major league load of bovine poop. The US gets less than 13% of the oil it uses from the Persian Gulf and is now a net exporter of petroleum. Therefore, the protection in question isn’t for the US consumer or its security, but for oil company’s revenues and profits–all subsidized by (you guessed it) American taxpayers.

Stop fucking meddling. Stop fucking meddling in their affairs–remove the US military from the Gulf (let the oil companies create their own security minus the military that’s paid from our taxes), stop the bowing and scraping to Al Qaeda backing Saudis, stop reflexively assuming “Israel good, Arabs, bad” and acting accordingly and guess what? Out of sight, out of mind—the notion that “Muslims hate our way of life and want to wage a holy war against us” is belied by the simple fact that the world’s largest Muslim nation has so far ignored most things American. “Live and let live” is the sanest philosophy one can embrace in one’s personal life, why not in one’s political life as well? 

Solomon: Historic challenge to support the moral actions of Edward Snowden

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Solomon: Historic challenge to support the moral actions of Edward Snowden

Norman Solomon is co-founder of RootsAction.org and founding director of the Institute for Public Accuracy. His books include “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death.”

In Washington, where the state of war and the surveillance state are one and the same, top officials have begun to call for Edward Snowden’s head. His moral action of whistleblowing — a clarion call for democracy — now awaits our responses.

After nearly 12 years of the “war on terror,” the revelations of recent days are a tremendous challenge to the established order: nonstop warfare, intensifying secrecy and dominant power that equate safe governance with Orwellian surveillance.

In the highest places, there is more than a wisp of panic in rarefied air. It’s not just the National Security Agency that stands exposed; it’s the repressive arrogance perched on the pyramid of power.

Back here on the ground, so many people — appalled by Uncle Sam’s continual morph into Big Brother — have been pushing against the walls of anti-democratic secrecy. Those walls rarely budge, and at times they seem to be closing in, even literally for some (as in the case of heroic whistleblower Bradley Manning). But all the collective pushing has cumulative effects.

In recent days, as news exploded about NSA surveillance, a breakthrough came into sight. Current history may not be an immovable wall; it may be on a hinge. And if we push hard enough, together, there’s no telling what might be possible or achieved.

The gratitude that so many of us now feel toward Edward Snowden raises the question: How can we truly express our appreciation?

A first step is to thank him — publicly and emphatically. You can do that by clicking here to sign the “Thank NSA Whistleblower Edward Snowden” petition, which my colleagues at RootsAction.org will send directly to him, including the individual comments.

But of course saying thank-you is just one small step onto a crucial path. As Snowden faces extradition and vengeful prosecution from the U.S. government, active support will be vital — in the weeks, months and years ahead.

Signing the thank-you petition, I ventured some optimism: “What you’ve done will inspire kindred spirits around the world to take moral action despite the risks.” Bravery for principle can be very contagious.

Edward Snowden has taken nonviolent action to help counter the U.S. government’s one-two punch of extreme secrecy and massive violence. The process has summoned the kind of doublespeak that usually accompanies what cannot stand the light of day.

So, when Snowden’s employer Booz Allen put out a statement Sunday night, it was riddled with official indignation, declaring: “News reports that this individual has claimed to have leaked classified information are shocking, and if accurate, this action represents a grave violation of the code of conduct and core values of our firm.”

What are the “code of conduct” and “core values” of this huge NSA contractor? The conduct of stealthy assistance to the U.S. national security state as it methodically violates civil liberties, and the values of doing just about anything to amass vast corporate profits.

The corporate-government warfare state is enraged that Edward Snowden has broken through with conduct and values that are 180 degrees in a different direction. “I’m not going to hide,” he told the Washington Post on Sunday. “Allowing the U.S. government to intimidate its people with threats of retaliation for revealing wrongdoing is contrary to the public interest.”

When a Post reporter asked whether his revelations would change anything, Snowden replied: “I think they already have. Everyone everywhere now understands how bad things have gotten — and they’re talking about it. They have the power to decide for themselves whether they are willing to sacrifice their privacy to the surveillance state.”

And, when the Post asked about threats to “national security,” Snowden offered an assessment light-years ahead of mainline media’s conventional wisdom: “We managed to survive greater threats in our history . . . than a few disorganized terrorist groups and rogue states without resorting to these sorts of programs. It is not that I do not value intelligence, but that I oppose . . . omniscient, automatic, mass surveillance. . . .  That seems to me a greater threat to the institutions of free society than missed intelligence reports, and unworthy of the costs.”

Profoundly, in the early summer of 2013, with his actions and words, Edward Snowden has given aid and comfort to grassroots efforts for democracy. What we do with his brave gift will be our choice.

Norman Solomon is co-founder of RootsAction.org and founding director of the Institute for Public Accuracy. His books include “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death.”

 (Bruce B. Brugmann,  or b3 as he signs his blogs and emails, writes and edits the Bruce blog on the San Francisco Bay Guardian website at sfbg.com. He is the editor at large of the Bay Guardian and editor and co-founder and co-publisher of the Bay Guardian  with his wife Jean Dibble, 1966-2012. He can be reached at bruce@sfbg.com.)

Solomon: An open letter to Sen. Dianne Feinstein, Chair of the Senate Intelligence Committee

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Solomon: An open letter to Sen. Dianne Feinstein, Chair of the Senate Intelligence Committee


By Norman Solomon

Norman Solomon is co-founder of RootsAction.org and founding director of the Institute for Public Accuracy. His books include “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death.”

Dear Senator Feinstein:

On Thursday, when you responded to news about massive ongoing surveillance of phone records of people in the United States, you slipped past the meaning of the Fourth Amendment. As the chair of the Senate Intelligence Committee, you seem to be in the habit of treating the Bill of Rights as merely advisory.

The Constitution doesn’t get any better than this: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The greatness of the Fourth Amendment explains why so many Americans took it to heart in civics class, and why so many of us treasure it today. But along with other high-ranking members of Congress and the president of the United States, you have continued to chip away at this sacred bedrock of civil liberties.

As The Guardian reported the night before your sudden news conference, the leaked secret court order “shows for the first time that under the Obama administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk — regardless of whether they are suspected of any wrongdoing.”

One of the most chilling parts of that just-revealed Surveillance Court order can be found at the bottom of the first page, where it says “Declassify on: 12 April 2038.”

Apparently you thought — or at least hoped — that we, the people of the United States, wouldn’t find out for 25 years. And the fact that we learned about this extreme violation of our rights in 2013 instead of 2038 seems to bother you a lot.

Rather than call for protection of the Fourth Amendment, you want authorities to catch and punish whoever leaked this secret order. You seem to fear that people can actually discover what their own government is doing to them with vast surveillance.

Meanwhile, the Executive Branch is being run by kindred spirits, as hostile to the First Amendment as to the Fourth. On Thursday night, Director of National Intelligence James Clapper issued a statement saying the “unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.”

That statement from Clapper is utter and complete hogwash. Whoever leaked the four-page Surveillance Court document to Glenn Greenwald at The Guardian deserves a medal and an honorary parade down Pennsylvania Avenue in the Nation’s Capital. The only “threats” assisted by disclosure of that document are the possibilities of meaningful public discourse and informed consent of the governed.

Let’s be candid about the most clear and present danger to our country’s democratic values. The poisonous danger is spewing from arrogance of power in the highest places. The antidotes depend on transparency of sunlight that only whistleblowers, a free press and an engaged citizenry can bring.

As Greenwald tweeted after your news conference: “The reason there are leakers is precisely because the govt is filled with people like Dianne Feinstein who do horrendous things in secret.” And, he pointed out, “The real story isn’t just the spying itself: it’s that we have this massive, ubiquitous Surveillance State, operating in total secrecy.”

Obviously, you like it that way, and so do most other members of the Senate and House. And so does the president. You’re all playing abhorrent roles, maintaining a destructive siege of precious civil liberties. While building a surveillance state, you are patting citizens on the head and telling them not to worry.

Perhaps you should have a conversation with Al Gore and ask about his statement: “Is it just me, or is secret blanket surveillance obscenely outrageous?” Actually, many millions of Americans understand that the blanket surveillance is obscenely outrageous.

As a constituent, I would like to offer an invitation. A short drive from your mansion overlooking San Francisco Bay, hundreds of us will be meeting June 11 at a public forum on “Disappearing Civil Liberties in the United States.” (You’d be welcome to my time on the panel.) One of the speakers, Pentagon Papers whistleblower Daniel Ellsberg, could explain to you how the assaults on civil liberties and the wars you keep supporting go hand in hand, undermining the Constitution and causing untold misery.

Senator Feinstein, your energetic contempt for the Bill of Rights is serving a bipartisan power structure that threatens to crush our democratic possibilities.

A huge number of people in California and around the country will oppose your efforts for the surveillance state at every turn.

Sincerely,

Norman Solomon

Norman Solomon is co-founder of RootsAction.org and founding director of the Institute for Public Accuracy. His books include “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death.”

(Bruce B. Brugmann, or b3 as he signs his blogs and emails, writes and edits the Bruce blog on the website of the San Francisco Bay Guardian  at sfbg.com. He is the editor at large of the Bay Guardian and former editor and co-founder and co-publisher of the Bay Guardian  with his wife Jean Dibble, 1966-2012.  He can be contacted at bruce@sfbg.com.) b3

NSA spying on Verizon calls is nothing new

Sasha Cuttler And Mary Magee
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18

So, the federal government is spying on millions of Americans. Still. And this time, there’s a document to prove it.

In a momentous scoop by journalist Glenn Greenwald, the UK Guardian has published a top secret Foreign Intelligence Surveillance Court order requiring Verizon to turn over all call records to the National Security Agency.

It does not matter if you are suspected of wrongdoing, or what your political beliefs are. It’s now been confirmed that if you are a Verizon subscriber, your “telephony metadata” is being handed over the NSA, “on an ongoing daily basis,” along with the records of millions of other subscribers.

What can this metadata reveal about a telecom subscriber?

“Every call made, the location of the phone, the time of the call, the duration of the call, and other ‘identifying information’ for the phone and call,” according to this cogent explanation provided by Electronic Frontier Foundation attorneys Cindy Cohn and Mark Rumold (in full disclosure, my former coworkers). Take a moment to let that sink in. We’re not just talking about every number dialed, but the geographic location of every phone.

Further raising eyebrows: “There is no indication that this order to Verizon was unique or novel,” Cohn and Rumold note. “It is very likely that business records orders like this exist for every major American telecommunication company, meaning that, if you make calls in the United States, the NSA has those records.” (Emphasis mine.)

President Barack Obama has defended the practice, calling it “a critical tool in protecting the nation from terrorist threats to the United States.” 

Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, said at a news conference in D.C. that the court order in question “is a three-month renewal of an ongoing practice,” according to the Associated Press.

Former Vice President Al Gore tweeted that the domestic surveillance program is “obscenely outrageous.” More than 16,000 people have signed an emergency petition urging Congress to “investigate,” while the American Civil Liberties Union has launched a petition calling on the Obama Administration to stop it already.

Amid the well-founded outrage over a document conclusively revealing a widespread domestic spying program, what’s really fascinating is the ho-hum response of two whistleblowers formerly employed by the NSA, who went on Democracy Now! and basically said, duh, what took the mainstream media so long to notice? 

“Where has the mainstream media been? These are routine orders, nothing new,” Thomas Drake told program host Amy Goodman. “What’s new is we’re seeing an actual order. And people are somehow surprised by it. The fact remains that this program has been in place for quite some time. It was actually started shortly after 9/11. The Patriot Act was the enabling mechanism that allowed the United States government in secret to acquire subscriber records from any company.”

NSA whistleblower William Binney chimed in: “NSA has been doing all this stuff all along, and it’s been all the companies, not just one. And I basically looked at [the top secret order] and said, well, if Verizon got one, so did everybody else, which means that, you know, they’re just continuing the collection of this kind of information on all U.S. citizens. … There’s just—in my estimate, it was—if you collapse it down to all uniques, it’s a little over 280 million U.S. citizens are in there, each in there several hundred to several thousand times.”

The publication of this court order also came less as a revelation, and more of a confirmation of what they’ve been saying all along, for San Francisco-based EFF attorneys, who have been mired in a legal battle against the NSA on warrantless wiretapping for the better part of a decade.

(Things started to get rolling on that front on Jan. 20, 2006, when former AT&T employee Mark Klein waltzed into EFF’s office clutching a manila envelope containing technical corporate documents, “detailing the construction of the NSA’s secret spying room in AT&T’s San Francisco facility” on Folsom Street.)

“This type of untargeted, wholly domestic surveillance is exactly what EFF, and others, have been suing about for years,” Cohn and Rumold remind us.

Legally speaking, much of this debate pertains to Section 215 of the U.S. Patriot Act, which the federal government has relied upon to claim it has legal authority to conduct mass surveillance of communications.

In May of 2011, Sen. Ron Wyden issued a cryptic warning during a debate about the reauthorization of Section 215. “I want to deliver a warning this afternoon,” Wyden said. “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”

Has that day arrived?

Google and Wikileaks: The takedown

Zelda Bronstein
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4
Google and Wikileaks: The takedown

By now half the Internet has read the New York Times piece Julian Assange wrote on Google. In theory, it’s sort of an analysis of “The New Digital Age,” a book by Google Chairman Eric Schmidt and former State Department official Jared Cohen, which got a lukewarm review in the Times a month ago. In practice, it’s a total slam at Google and its “don’t be evil” slogan.

Assange isn’t impressed by the Googlers; in fact, he argues that the book is just a manifesto for a new digital age of American imperialism:

 The book proselytizes the role of technology in reshaping the world’s people and nations into likenesses of the world’s dominant superpower, whether they want to be reshaped or not. The prose is terse, the argument confident and the wisdom — banal. But this isn’t a book designed to be read. It is a major declaration designed to foster alliances.

 “The New Digital Age” is, beyond anything else, an attempt by Google to position itself as America’s geopolitical visionary — the one company that can answer the question “Where should America go?” It is not surprising that a respectable cast of the world’s most famous warmongers has been trotted out to give its stamp of approval to this enticement to Western soft power. The acknowledgments give pride of place to Henry Kissinger, who along with Tony Blair and the former C.I.A. director Michael Hayden provided advance praise for the book.

More:

 Google will interpose itself, and hence the United States government, between the communications of every human being not in China (naughty China). Commodities just become more marvelous; young, urban professionals sleep, work and shop with greater ease and comfort; democracy is insidiously subverted by technologies of surveillance, and control is enthusiastically rebranded as “participation”; and our present world order of systematized domination, intimidation and oppression continues, unmentioned, unafflicted or only faintly perturbed.

It’s easy to paint Assange as a crazyman seeing conspiracies everywhere (I’d get that way too if I were cooped up in an embassy and unable to escape.) And that’s how some of the tech journals are playing it.

But let’s get beyond Google Glass and information capture and the scary shit that technology will be doing to us all in a couple of decades. Let’s take Google out of this altogether.

Is it unusual for giant corporations based in the US that control important technology to work closely with the government? Of course not; it’s been going on for more than a century. Standard Oil, J.P. Morgan, General Motors, Lockheed Martin … the list goes on. Corporations that operate on that level are and always have been a part of American foreign policy — and almost always for the worse.

Google doesn’t build missles or spy satellites (although you know they’re working on drones), but what it does is even more powerful — it collects and controls information. And while much of its mission involves making the world’s knowledge available to all, there are other sides to that. And it would be shocking if the State Department/CIA/Industrial Complex DIDN’T involve Google.

At a certain level, if you’re running a big coporation, you have to do more than have a slogan to avoid being evil. Assange’s article is a bit over the top, but I think that’s what he’s trying to say. And it’s absolutely true.

 

 

 

Bay to Breakers will have video surveillance, license plate scans, and secret “FBI assets”

Sasha Cuttler
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19
Bay to Breakers will have video surveillance, license plate scans, and secret “FBI assets”

Police video surveillance was in the spotlight during yesterday’s City Hall hearing on security measures at large events, as supervisors voiced a desire to strike the right balance between security and civil liberties. And while they got some reassurance and small signs of restraint from the SFPD, they also learned about secretive new security measures that go beyond what the public was aware of.

San Francisco Police Chief Greg Suhr clarified misleading media reports (a Chronicle story then picked up by Associated Press) that he’s seeking real time video surveillance along Market Street. Right now, Suhr said he just wants an inventory of existing video cameras along Market and downtown that he can request footage from after a crime is committed and that he would make his case to the board if he ever wanted to go beyond that.

“Right now, we only look at footage in retrospect,” Suhr told the Neighborhood Services and Safety Committee hearing, adding that he has no objections to seeking a court warrant to obtain that footage because “we do want it to be admissible.”

Yet Suhr and Deputy Chief James Loftus also revealed that SFPD will be deploying an undisclosed number of temporary real-time video surveillance cameras atop long poles at the Bay to Breakers footrace on May 19, as it did last fall during the World Series and the big parade down Market Street celebrating the Giants victory.

“We always want more video,” Suhr told the Guardian, although he said that he also understands the civil liberties sensitivities of San Franciscans, which is why he isn’t now seeking a permanent increase in SFPD’s real time video surveillance capabilities. “I’m from San Francisco, I get it.”

Other security tools that the SFPD will be employing at Bay to Breakers and other large events are technology that uses video cameras on police cars to capture license plate numbers and run them through a DMV database, what Loftus vaguely described as “specialized resources from surrounding jurisdictions” (watch out for the drones, y’all), and unspecified “FBI assets [that] will be present and assisting in event security.”

When Sup. Eric Mar, who called the hearing, asked about those last two items, Loftus said he wouldn’t discuss them publicly, but “I could talk to you about it offline if you’d like.”

Sup. David Campos said that he doesn’t want San Francisco to be reactionary after incidents like the Boston Marathon bombing and that we should be a model city for balancing security with civil liberties: “I think that’s a very difficult balance to strike, but it anyone can strike that balance, I think San Francisco can.” He also expressed concerns about plans to ban backpacks at Bay to Breakers: “I don’t know if that’s going to address the problem.”

Loftus said the ban only applied to large backpacks (larger than 8.5x11x14 inches) and that runners and spectators will still be allowed to use small backpacks to hold water and changes of clothing. Yet for those concerned about the creeping police state, including several people who spoke during the public comment period, there was little consolation offered in the presentations, and the supervisors said this would be an important ongoing discussion.

“This is a discussion that goes beyond San Francisco,” Campos said. “We as a country need to have this discussion.”

Hearing on event security as SFPD pushes police state

Sasha Cuttler
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17

Just a few weeks ago, Sup. Scott Wiener, civil libertarians, and I were raising concerns here about the SFPD unilaterally expanding its video surveillance reach. Then came the bombings at the Boston Marathon, which the SFPD used to seriously up the ante in the police state pot, asking for real time video surveillance up and down Market Street and banning backpacks at Bay to Breakers.

Now, I’m not one to stand in the way of reasonable security precautions. But we shouldn’t just defer to the SFPD on whatever it says it wants because then we’ll have cameras on every corner, spy drones overhead, stop-and-frisk, and an ever-greater portion of our tax dollars going to expand the police state. Because the cops will always want more tools to police us, tools they will always say they need to protect us – it’s just in their nature. But it’s up to the rest of us to strike the right balance and not lose our heads every time some whack-job resorts to violence.

That’s why it’s good to see that Sup. Eric Mar has called a Neighborhood Service and Safety Committee hearing for this Thursday at 2pm on security measures for large events, to which he’s invited the SFPD, Planning Department, Recreation and Parks Department, and Entertainment Commission. Let’s talk about this before acting too rashly.

For example, is it really reasonable to ban backpacks at Bay to Breakers just because the Tsarnaev brothers allegedly carried their homemade bombs in backpacks? Is it possible for police to ensure that nobody in or around an event that draws more than 100,000 people has a backpack? Is it even legal to prevent me from riding my bike near a race that bisects San Francisco if I happen to be wearing a backpack?

I’m always amazed at Americans’ capacity for fear and overreaction. One nut decides to put a crude explosive in his shoe and suddenly we all have to remove our shoes every time we board an airplane (a silly measure most other countries don’t require). Even as horrible as the 9-11 attacks were, the 2,977 people they killed that day is a small fraction of the death toll that we inflicted in response (6,693 US troops killed in Afghanistan and Iraq, and at least hundreds of thousands of Iraqis and Afghanis killed), and I don’t think anyone can credibly claim that we’re any safer today as a result.

Fearful people will accept anything police say will make them safer, and that’s how the slide into police states throughout history always begin, pushed by tyrants of all ideological stripes. But isn’t that just giving in to terrorism? After all, we’re all far more likely to be killed by a distracted motorist than we are a terrorist, but I’m not hearing calls for big crackdowns on drivers, even in the face of good evidence this would keep us safer than banning backpacks.

Our country was founded by people who were more wary of soldiers and cops than they were random kooks, and I think we’d do well to remember what people like Benjamin Franklin had to say about irrational fears: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Boston, a day later

Zelda Bronstein
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18
Boston, a day later

It’s hard to know what to say about the Boston Marathon bombings. Except that I don’t believe the guy on the roof did it, and I don’t believe the government did it to get its hand down our pants, and nobody has any idea if some organized domestic or foreign terrorist group was responsible or if it was a lone nut. Whoever it was, the person doesn’t seem to have been overly sophisticated in the making of explosive devices; this one was pretty crude. Or maybe the bombmaker knew exactly what he (could be she, but there aren’t many female mad bombers) was doing, and wanted to look like an amateur.

We do know this wasn’t a suicide bomber. The perp wanted to get away.

I suspect we will find him soon enough. There are so many agencies and people looking for the bomber; unless this was the work of someone who remotely triggered the bombs by cell phone from somewhere far, far away, there’s not going to be anywhere to hide. Also: So many cameras everywhere these days. The bomber — or the person who placed the bombs — is on film in downtown Boston. Almost certainly.

As we did after 9/11, we will probably over-react. New invasive rules on transport systems, more spying, more surveillance …. all things that wouldn’t have prevented a single angry bomber from carrying out the attacks. People who are opposed to gun control will say: See! Gun-control laws won’t stop pressure-cooker bombs!

There will be increased security at public sports events. I don’t know how they’re going to deal with Bay to Breakers, which not only winds through the city, past lots of places where bombs could be hidden, but also involves thousands of trash cans and porta-potties. You can’t get rid of those; the people who live along the course would be livid when their front yards and driveways became trash heaps and pissoirs. Searches will be more serious at AT&T park, which means lines will be longer. We can live with that. 

If you want some perspective on what it feels like to be terrorized, check out my old friend Don Ray’s blog on “the sitting duck syndrome.” He notes:

The bombs that exploded at the finish line of the Boston Marathon have created the same response in people across the United States. The repeated blasts (repeated and repeated and repeated on television) have communicated with the primitive, “I have to survive” reptilian brains of millions of people. It has put them on notice that, “It could happen here. Today. Tomorrow. Even right now.” Welcome to the world of terrorism. It’s very effective. People in other parts of the world already know about this. So in the coming weeks and months, some of us will feel the need to carry weapons or to avoid crowds completely. Others of us will look at the violence that’s happening in distant parts of the world and maybe begin to become a little bit empathic. Maybe — just maybe — some of us will equate U.S. drones and missiles and bombs with the sitting duck, unexpected violence that is the intended byproduct of terrorists.

Not to get all foreign-policy preachy here, but that’s something to think about.

ABC shows more concern about expanding police video surveillance than Mayor Lee

Sasha Cuttler
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15
ABC shows more concern about expanding police video surveillance than Mayor Lee

The SFPD has quietly expanded its reach and authority to obtain video surveillance from in and around bars, clubs, and markets through a condition it has begun recommending on new liquor licenses, as I reported in today’s issue, effectively bypassing controls on city-operated surveillance cameras established through extensive public hearings in 2005.

But the Mayor’s Office doesn’t seem concerned about the new trend, echoing SFPD’s point that it is the California Department of Alcoholic Beverage Control that decides whether to heed the SFPD’s request to include the video surveillance condition. “There is no new policy. SFPD makes recommendations as far as I know, not requirements,” Mayoral Press Secretary Christine Falvey wrote to me in an email responses to our questions.

Certainly, everyone from bar owners to the ACLU to Sups. Scott Wiener and David Campos – who have called a hearing on the policy for later this month – consider it a new policy, or at least one that the public has just learned of after it was adopted internally right after the idea was shot down in public hearings in 2011.

ABC spokesperson John Carr had told me the department “routinely denied requests for conditions by SFPD per section 23800(e) of the Californian Business and Professions Code, occasionally these denials include the surveillance condition,” but he wasn’t able to provide me any examples of that happening by press time.

But today, he was able to find one. On Oct. 3, 2012, ABC rejected the SFPD’s request for video surveillance at Bush Market at 820 Bush on a quiet residential block of Nob Hill, noting that state law requires such requests be supported by “substantial evidence” that problems exist at the site that would be mitigated by the condition.

“I regret to inform you that the Department is unable to impose conditions pursuant to your request because no evidence was provided to establish that a problem exists at the premises or in it immediate vicinity,” ABC District Administrator Justin Gebb wrote in what was essentially a form letter.

Carr shared an identical letter that the ABC sent to the SFPD denying some of its requested conditions for another liquor license transfer on Feb. 12, this one for the Space 550 event venue at 550 Barneveld Ave. But in that case, the ABC decided to support the SFPD’s request for video surveillance “that is able to view the inside and outside of the premises” and which must be given to the cops “upon demand.”

As I wrote in this week’s paper, the ACLU considers that kind of extrajudicial expansion of the SFPD’s ability to require and obtain video surveillance to be unconstitutional, and we furnished a copy of the article and the issues it raised to try to get a more substantial comment from the Mayor’s Office, which seems to be less concerned with the civil rights of San Franciscans than the bureaucrats in Sacramento are.

“Balancing public safety with vibrant cultural and nightlife activities is a concern of mayor. He expects the Police Department to work in partnership with the neighborhood and its businesses to lawfully collect evidence that can help keep the public safe and neighborhoods active,” Falvey wrote.

So I had a few follow-up questions, for which I’m still awaiting answers, and I’ll update this post if and when I get them: “The ACLU’s position is that this is not a lawful way to collect evidence, and that it violates the state constitution’s privacy protections and the rules San Francisco established in 2005 regulating when and how the SFPD may request and use video surveillance. Does the mayor reject those concerns and has he sought any legal advice to support his position? In the absence of any judicial review, shouldn’t the city have some guidelines and policies governing this expansion of SFPD’s video surveillance authority? Does the mayor believe the 2005 guidelines should no longer apply? And does the mayor agree with Sups. Wiener and Campos that it would be appropriate to have a public hearing on this issue, particularly given the strong public opposition to requiring expanded video surveillance by bars two years ago?”

Silent sting

Andrew Lam
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12
Silent sting

rebecca@sfbg.com

If the FBI is trying to track down a suspect in your neighborhood, investigators could sweep up information from your mobile device just because you happen to be nearby.

It’s been going on for years with little public notice or attention.

Records obtained through the Freedom of Information Act request shed new light on a surveillance device known as a Stingray that allows law enforcement to automatically collect cell phone data from potentially hundreds of subscribers in a given area — even when the vast majority of those affected have nothing to do with the criminal investigation at hand.

The documents came in response to an FOIA request from the Bay Guardian and the Northern California Chapter of the American Civil Liberties Union.

Stingray is a brand name; the devices might also be known as a Triggerfish, a digital analyzer, a cell site emulator, or an IMSI catcher, the latter being a technical term describing the gadget’s ability to detect International Mobile Subscriber Identities. It essentially behaves like cell phone tower, putting out a strong signal that tricks mobile devices into connecting automatically.

If there are 200 cell phone customers in an area where it’s being deployed, all of their phones will automatically connect to the device.

Once cell phones are talking to the Stingray, the device scoops up digital information and uses it to help agents ferret out their target. Some Stingrays have the capability to capture actual content — texts or telephone conversations — while others act like eyes and ears that can guide police to the precise geographic location of a targeted suspect, even within a couple meters.

And it doesn’t even require a warrant.

“You can operate it without having to involve the cell phone providers at all,” Peter Scheer, executive director of the California First Amendment Coalition, told us. His organization helped a journalist obtain records about the Los Angeles Police Department’s use of Stingrays.

“The service providers, while they don’t stand as a major barrier, tend to insist on police having some kind of judicial authorization,” Scheer said. “It has been an important check on police use of these technologies.”

MANY AGENTS USING IT

The FBI initially refused to provide the documents, but after the ACLU filed suit, the U.S. Attorney for the Northern District of California finally released some information, including a particularly juicy set of internal emails documenting federal agents’ use of these devices.

In one of the emails, Criminal Division Chief Miranda Kane wrote: “Our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology … to locate an individual.”

(“WIT technology” is described as a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity.”)

Kane added: “Many agents are still using [this] technology in the field although the pen register application does not make that explicit.” In a clarifying email sent later on the same thread, Assistant U.S. Attorney Kyle Waldinger noted: “Just to be super clear, the agents may not use the term ‘WIT’ but rather may be using the term … ‘Stingray.'”

Kane’s reference to a “pen register application” describes a request for court approval to use an investigative tactic that can trace the outgoing numbers dialed from a particular phone. While Stingrays can potentially sweep in hundreds of cell phone customers’ information, pen-register wiretaps focus narrowly on the digits being punched in by one individual.

The US Supreme Court ruled in 1979 that the use of a pen register is “not a search under the Fourth Amendment,” Susan Freiwald, a law professor at the University of San Francisco, told us. That means law-enforcement agents don’t need a full-scale search warrant. And court orders permitting pen-register wiretaps are “really easy to get,” Friewald explained.

To secure a judge’s blessing, law enforcement agents need only to submit complete applications and show that the phone numbers dialed are “relevant” to an investigation.

Kane’s email, dated in 2011, is significant because it suggests that “many agents” were using Stingrays for investigations after clearing only the low hurdle of court approval for a pen register. “The federal government was routinely using Stingray technology in the field, but failing to make that explicit in its applications to the court to engage in electronic surveillance,” ACLU Staff Attorney Linda Lye wrote in a recent blog post. “When the magistrate judges in the Northern District of California finally found out what was happening, they expressed ‘collective concerns,’ according to the emails.”

The revelation is closely tied to an electronic surveillance case that’s currently making its way through court, most recently prompting the ACLU and the Electronic Frontier Foundation to file an amicus brief challenging the constitutionality of a Stingray use.

TRACKING A HACKER

It all began back in 2008, when FBI agents used the technology to track down a hacker and alleged fraudster named Daniel David Rigmaiden — a guy who sometimes goes by an alias, represented himself in court, and seems to possess enough technical savvy and disposable income to challenge his prosecutors at every turn.

Through discovery proceedings, Rigmaiden “managed to get the government to admit that it has used this location tracking technology to find him,” Lye noted. “That is quite extraordinary, because there have been suspicions that that this device has been around and in use for quite a long time, but there are really very few cases where we talk about it, and this is the only criminal case where the government has plainly admitted to using it to locate a suspect.”

Because FBI agents used a Stingray to locate Rigmaiden, they not only figured out that he was inside a Santa Clara apartment building, but successfully sniffed down to the level of his exact unit.

But the request for court orders that authorized this investigation made only a fleeting mention of a mobile tracking device, without conveying just how powerful the surveillance tool actually is. “When we read the orders, we were very, very surprised and troubled,” Lye said. “Because the government was arguing in the criminal proceeding in Rigmaiden, yes, we acknowledge that we’ve used this cell site emulator, and we’re even … acknowledging that the device is intrusive enough in the way it operates to constitute a search — which is a significant concession.”

In this case, the FBI agents obtained a court order to use a pen register, and separately obtained court approval to solicit Verizon’s help in locating Rigmaiden, which the government claims constituted a warrant (though this is a point of contention). But nowhere did agents make it clear to the judge that in order to work, this surveillance device vacuums up vast amounts of third-party data. The search potentially affected hundreds of subscribers in Rigmaiden’s apartment complex, none of whom were suspected of any involvement in wrongdoing. The government noted in court filings that it purged the third-party data after the fact, presumably as a way to deflect privacy concerns.

“It did not explain that the device broadcasts signals to all devices in the area, receives information about other devices in the possession of third parties, potentially disrupts the connections of third-party devices, and penetrates the walls of every private residence in the vicinity, not solely that of the target,” the ACLU-EFF brief argues.

At the end of March, Lye argued in an Arizona federal court hearing that evidence gathered using a Stingray should be suppressed in the Rigmaiden case, because the government used the tracking tool but failed to tell the federal magistrate judge that it was doing so. But in the course of that hearing, “the government stated … that ‘use of these devices is a very common practice,'” Lye note in an update following the hearing. “It also stated that there were many parts of the country in which the FBI successfully obtains authorization to use this device through a trap and trace [pen register] order.”

Nor is it just federal agencies that use these surveillance tools. The results of a FOIA request filed by a Los Angeles journalist with the assistance of the First Amendment Coalition revealed that LAPD used this technology in 21 out of 155 cell phone investigation cases — from June to September of last year alone. The devices were used to investigate five homicide cases and a roster of other offenses, including a burglary, a narcotics investigation, two suicides, a robbery and three kidnappings.

For civil liberties advocates, the aim is to require stronger judicial oversight and a warrant before this kind of surveillance practice can be used. “The argument here is about, well this technology is so powerful and so intrusive — it really needs to be under extensive oversight by members of the judiciary,” notes Friewald, the law professor. “And in order for that to happen, the judge needs to have that technology described to them.”

Sneaky surveillance

Andrew Lam
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19
Sneaky surveillance

steve@sfbg.com

After public outrage stopped the San Francisco Police Department from instituting controversial — and unconstitutional, say civil libertarians — new video surveillance requirements in bars and clubs more than two years ago, the department quietly began inserting that same requirement into new liquor licenses, a move met with concern at City Hall last week.

In late 2010, the SFPD proposed a draconian set of new security requirements for drinking establishments in the city, including requirements that they do video surveillance and take an image of all patrons’ identification cards and make them available to police upon request, without a warrant or any other controls (see “Going to a club — or boarding an airplane?,” 12/7/10).

That proposal ran into a wall of opposition from the American Civil Liberties Union, California Music and Culture Association, progressives on the Board of Supervisors, and others, who said such a blanket policy violates privacy protections in the California Constitution. The Entertainment Commission held a hearing on the proposal in April of 2011 and voted unanimously to reject the proposals.

At that point, they seemed to just disappear, but they didn’t. Instead, SFPD internally decided at that time to begin asking the California Department of Alcoholic Beverage Control to insert a video surveillance requirement in most new liquor licenses in San Francisco, which escaped public notice until Sup. Scott Wiener raised the issue at the April 2 Board of Supervisors meeting.

“If you have an establishment that perhaps has a track record of bad things happening, that’s one thing. But absent that, I don’t believe that this is justified,” Wiener said as he voted against the requirement in a pair of new liquor licenses. Although Wiener was alone in opposing those applications, Sup. David Campos said he shared Wiener’s concern and the pair called an upcoming hearing on the new policy.

Two days later, at the board’s Neighborhood Services and Safety Committee meeting, Wiener again raised the issue and sought to have the new requirement removed from a pair of proposed liquor licenses: Cesar’s Ballroom on 26th and 3rd streets, the latest project of veteran local club owner Cesar Ascarrunz, and Nosa Ria, a market in Hayes Valley that will import gourmet food and wine from Spain.

“It’s the exact opposite of some kind of rowdy bar or nightclub where people are going in and getting drunk and really bad things are happening,” Wiener said of Nosa Ria, for which he persuaded fellow Sups. Eric Mar and Norman Yee to vote to remove the video surveillance condition before approving the application.

That condition stated: “The petitioner shall utilize electronic surveillance and recording equipment that is able to view the outside of the premises, including all entrances and exits, and that is actively monitored and recorded. The electronic surveillance shall be utilized during operating hours. Said electronic recording shall be kept at least 30 days and shall be made available to the Department or Police Department upon demand.”

Mar said he agreed with Wiener that “a broad discussion of electronic surveillance requirements would be important for this committee,” but Mar then voted against removing that condition from the Cesar’s Ballroom application, saying, “I think we need surveillance in certain spots on a case-by-case basis, and I think this is an area that needs surveillance.”

SFPD IS WATCHING

When SFPD first sought new video surveillance tools — back in 2005, when the department asked for 71 video cameras at high-crime intersections around the city — it was rigorously debated in public hearings for months. And when they were finally approved by the Board of Supervisors, they included an extensive set of controls on when SFPD could request footage — the department wasn’t even allowed to control the cameras directly — how it could be used and when it must be erased.

The legislation also required a follow-up study of their effectiveness in deterring and prosecuting crimes. Conducted by the University of California’s Center for Information Technology Research in the Interest of Society (CITRIS) in 2008, the report found the cameras had no impact on violent crime rates but a small deterrent impact on property crimes in the filmed areas.

As a tool for prosecuting crimes after the fact, “There has been limited success with the cameras acting as a ‘silent witness,’ with footage standing in for witness testimony; some anecdotal evidence suggests that the existence of CSC program footage can actually deter witnesses from cooperating under the assumption that the cameras have caught all necessary evidence,” the report said, also noting that twice in the 120 police requests made by 2008, footage resulted in charges being dropped or downgraded.

But today, SFPD apparently believes that times have changed, and that the rigorous oversight and evaluation of video surveillance tactics and their implications on people’s privacy rights — or even the need to notify the public that SFPD is seeking new ways to watch citizens — are no longer necessary.

“Over the last few years, we’ve increased the number of recommendations for video surveillance, for a few reasons,” SFPD spokesperson Gordon Shyy told the Guardian, citing how cheap and ubiquitous the technology has become and the role that video footage can play in solving crimes.

Yet attorney Michael Rischer with the ACLU of Northern California, who actively opposed the SFPD’s proposal in 2011 and was dismayed to hear the department secretly and unilaterally expanded its video surveillance reach after its proposal was rejected, said that reasoning is exactly why there are legal controls on the expanding police state.

“Both of those justifications are exceedingly troubling and they demonstrate why the San Francisco Police Department should not be doing this in some room sealed off from the public,” Rischer said. “The police have this totally backward. The ease and cost of doing this is a reason why these protections are in place.”

PRIVACY PROTECTIONS

Unlike under federal law, Californians have an explicit constitutional privacy guarantee and a body of case law defining that right in great detail. But the SFPD doesn’t seem to be aware of the nuances of that case law, such as the distinction it makes between people’s expectation of privacy on public streets versus in private businesses.

“When you enter a bar or restaurant, you don’t have an expectation of privacy,” Shyy told us.

But Rischer said that just isn’t true under the law. He noted that people do indeed have a reasonable expectation that they can enter a gay bar without being outed, for example, or that police won’t be able to demand video from a gathering in a bar where subversive political ideas are being discussed. And those concerns are exacerbated by SFPD’s policy that bar owners must simply turn over footage “upon demand.”

“The notion that the government is requiring a business to conduct surveillance of its patrons and to turn it over to the Police Department without any judicial oversight or even rules is deeply troubling and probably unconstitutional,” Rischer said.

Shyy said SFPD will “only request them when a crime has been committed,” but he also admitted that the conditions it is requesting on liquor licenses don’t set that limit and the policy hasn’t been reviewed by the Police Commission or other local oversight bodies.

ABC spokesperson John Carr told us his department doesn’t have a position on video surveillance and hasn’t tracked whether other jurisdictions are seeking the condition. As for whether it routinely includes SFPD’s recommended conditions, he said, “ABC reviews each application on a case by case basis.”

There are indications that SFPD sometimes resorts to bullying bar owners into turning over video surveillance without legal authority to do so. Jamie Zawinski with DNA Lounge last month blogged about Officer Simon Chan telling the club that it was required to keep video footage and turn it over upon request, which club operators informed the SFPD wasn’t true. “It’s just another sneaky, backdoor regulation that ABC and SFPD have been foisting on everyone without any kind of judicial oversight, in flagrant violation of the Fourth Amendment,” Zawinski wrote.

Regarding that incident, Shyy would only confirm that most bars aren’t yet required to keep and turn over video footage. And he said SFPD will cooperate with the hearing Campos and Wiener have called. “At this point, we don’t believe we’re violating people’s constitutional rights, but we’re willing to have that discussion,” Shyy said.

Wiener said that on April 3, he discussed the issue with Police Chief Greg Suhr, who indicated a willingness to cooperate with public hearings on the policy. But Wiener said he’s bothered by the fact that SFPD seems to have put this new policy in place right after being unsuccessful in doing this through a public process in 2011.

“I and others expressed opposition to this and I and others thought the Police Department had backed away from it,” Wiener said at the April 4 hearing, noting that “I’m not philosophically opposed to surveillance,” only with how SFPD instituted it. “I have an issue with the Police Department deciding to insert this on its own without a broader policy discussion.”

Feds’ use of spy tools under scrutiny due to privacy concerns

Sasha Cuttler And Mary Magee
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Feds’ use of spy tools under scrutiny due to privacy concerns

If the FBI is trying to pinpoint the location of a suspect in your neighborhood, investigators could sweep up information from your mobile device just because you happen to be in proximity to their target. Civil liberties advocates are concerned that the practice is a major invasion of privacy.

The results of a Freedom of Information Act request filed by the Northern California chapter of the American Civil Liberties Union (ACLU) and the San Francisco Bay Guardian last year sheds new light on the federal government’s use of Stingrays, a surveillance technology that mimics a cellphone tower by automatically connecting with mobile devices in the area where a search is being conducted.

Stingray is a brand name, but the devices are sometimes called Triggerfish, digital analyzers, or cell site emulators. They’re known to technologists as IMSI catchers, meaning they can intercept a user’s International Mobile Subscriber Identity.

As the ACLU of Northern California noted recently in a blog post, Department of Justice emails obtained in response to the FOIA request, filed with the US Attorney’s Office of the Northern District of California, revealed that federal agents who sought authorization to conduct searches using this technology were “less than forthcoming” about what the devices actually do.

The issue stems from federal investigators’ request for a search warrant several years ago targeting Daniel Rigmaiden, a hacker accused of committing fraud. The search was authorized, but it seems agents never explained just how wide a net they intended to cast.

Because FBI agents used an IMSI catcher rather than, say, triangulation techniques that can utilize subscriber data to find their target, they were able to pinpoint Rigmaiden’s precise location – not only revealing that he was inside a Santa Clara apartment building, but sniffing down to the level of his exact unit. 

But when a search of this kind is conducted, a Stingray automatically connects with every other mobile device in the immediate vicinity that uses the same provider (in this case, Verizon). It works by masquerading as a cell phone tower, tricking mobile devices into automatically communicating with the spy device. So any other Verizon subscribers who happened to be nearby also had their information caught up in the FBI’s net.

There are various kinds of IMSI catchers, and some are capable of sweeping in the contents of communication, such as text messages. In the Rigmaiden case, investigators said were only able to access subscriber information. Investigators also reported that they “purged” unneeded data after the fact, according to ACLU staff attorney Linda Lye. But purging the data also makes it impossible to prove that the information of particular individuals was wrongfully swept up in a search. 

The FOIA request was filed in April of last year. Last July, after the government failed to provide the information, a lawsuit was filed to get the documents.  

The string of emails that was finally provided suggests that federal agents have been using this sort of technology in the field for some time, without clearly representing to judges that Stingrays can vacuum up third party communications data. Instead of being explicit on this point, agents from the Department of Justice merely stated that they wanted to use a mobile tracking device.

“It has recently come to my attention that many agents are still using [IMSI catchers] in the field although the pen register application does not make that explicit,” notes an internal Department of Justice email obtained through the FOIA request, referring to a different kind of search technique that is more narrowly targeted. 

Lye drilled down on this point in her blog post:

“The federal government was routinely using stingray technology in the field, but failing to ‘make that explicit’ in its applications to the court to engage in electronic surveillance. When the magistrate judges in the Northern District of California finally found out what was happening, they expressed ‘collective concerns,’ according to the emails. Notably, this email chain is dated May 2011, some three years after the Stingray’s use in Rigmaiden’s case – meaning the government was not ‘forthright’ in its applications to federal magistrate judges for at least three years.”

After battling for months in court in a separate proceeding, the ACLU of Northern California also succeeded in unsealing the Northern District DOJ orders that authorized use of the surveillance devices. Now, the civil liberties advocates are partnering with the Electronic Frontier Foundation and other groups to file an amicus brief concerning the constitutional implications of using a Stingray to collect evidence in the Rigmaiden case. “Their use implicates the privacy interests of the suspect, as well as untold numbers of third parties as to whom there is no probable cause,” the lawyers argue.

“When we read the orders, we were very, very surprised and troubled,” Lye noted in a recent conversation with the Guardian. “Because the government was arguing in the criminal proceeding in Rigmaiden, yes, we acknowledge that we’ve used this cell site emulator, and we’re even … acknowledging that the device is intrusive enough in the way it operates to constitute a search – which is a significant concession.”

For more on Stingrays, pick up next week’s issue of the SFBG.

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