The fishbowl

If you're into social media and designing applications (and helping los federales to spy on the citizenry), the FBI has the perfect free-lance job opportunity for you.

How would you like to design an app that could search social media sites such as Facebook, YouTube, Flickr and Twitter and allow users to compile information on domestic and international terrorism?

The FBI's Strategic Information and Operations Center (SOIC) posted its "Social Media Application" market research request onto the web on 19 January, and it was subsequently flagged up by New Scientist magazine. 

The document says: "Social media has become a primary source of intelligence because it has become the premier first response to key events and the primal alert to possible developing situations." 

It says the application should collect "open source" information and have the ability to: 

• Provide an automated search and scrape capability of social networks including Facebook and Twitter.

• Allow users to create new keyword searches.

• Display different levels of threats as alerts on maps, possibly using colour coding to distinguish priority. Google Maps 3D and Yahoo Maps are listed among the "preferred" mapping options.

• Plot a wide range of domestic and global terror data.

• Immediately translate foreign language tweets into English.

Sure, when you post something online it's out there for the whole world to see. But, so many of these social network sites function more like a cocktail party or a backyard bbq. You and your circle of (mostly) virtual friends chat and comment about this or that - until your eye is drawn to the next shiny object.

What has happened to our right to be left alone? As Scott Greenfield points out, on the internet you don't know if you're talking to a dog -- or a terrorist, or at least someone los federales have their eyes on. How does it feel to know you might just get dragged into an investigation? How does it feel to know that you might find yourself under suspicion because of a tweet?

Of course you know that everything changed on 9/11. Now we're all under suspicion. Now the government needs to be able to monitor all our communications lest someone say something that might be a little bit controversial. The same tools that we have hailed for making our world smaller and allowing us to connect with more people are being used to keep an eye on us.

How does it feel to be the fish?

Hey, kids, get out of my yard!

Back in 2004, D.C. police decided that Antoine Jones was a bad dude and needed watching. Employing a spy store full of surveillance tools, the police obtained a court order allowing them to install a GPS device on the Jeep that Mr. Jones routinely drove (the car was registered to his wife). The court told the police they had ten days to install the device within the District.

On the 11th day, in a parking lot in Maryland, the police attached the GPS device to Mr. Jones' Jeep. Over the course of the next month the police obtained more than 2,000 pages of tracking data they used to put Mr. Jones with some really bad dudes who dealt cocaine.

Mr. Jones was subsequently indicted for his role in the conspiracy. His first trial ended in a hung jury. Los federales then obtained a second indictment. Mr. Jones wasn't so lucky at his second trial - he was convicted and sentenced to life in prison.

On appeal he argued that the installation of the GPS device constituted an unlawful search and seizure. The appellate court said "yes" and "no." The court held that installing a GPS device on a car was not the equivalent of a search - based upon the Katz test of whether the owner had a reasonable expectation in privacy as to his movements on a public roads. But the court did rule that the data obtained while the car was parked in the couple's garage or driveway did violated the Katz test.

In U.S. v. Jones, 565 US _____ (2012), the U.S. Supreme Court held that the attachment of the GPS device did constitute a search as law enforcement personnel, in effect, trespassed upon Mr. Jones' property in placing the device on the undercarriage of his car. Justice Scalia took a trip in his wayback machine and held that the Fourth Amendment was designed to protect the citizenry from trespass by the state. He wrote that Katz did not supplant the concept of physical trespass as the test to determine whether something was a search - but that  it was an addition to the analysis.

Of course that doesn't explain why it's okay for the police to look through your trash can while it sits on your driveway waiting to be taken away by the sanitation engineers. It also doesn't jibe with allowing the police to wander up to a garage and look in the windows - or to look in the open windows of a house. In making those determinations, the Supremes looked at Katz and then looked away from the Bill of Rights.

In her concurrence, Justice Sotomayor castigated Justice Scalia for taking a narrow approach to the Fourth Amendment. Justice Sotomayor would rather use the Katz analysis for determining whether a search took place. In her view, today's technologies have taken us beyond the question of whether the police trespassed on someone's property. She also raised the question of whether we waive our reasonable expectation of privacy when we disclose private information to a third party (just think about your smartphone's GPS or the information you type in to register for certain websites).

Justice Alito was also concerned that the concept of trespass was passe and that it led to inconsistent outcomes depending on the surveillance methods used by the police. He also pointed out Justice Scalia's opinion failed to address the installation of tracking devices by car manufacturers such as GM's OnStar or Lo-Jack.

Justice Alito also questioned whether a motorist had a reasonable expectation of privacy regarding the movement of his car in public. He didn't seem to have too much problem with what the government did in Mr. Jones' case, but he said at some point such monitoring would raise questions. For Justice Alito, attaching the device to the Jeep wasn't the problem, the problem was the amount of time the device was allowed to transmit.

What we have here is the so-called conservative bloc of the Court ruling against the use of warrantless GPS tracking by the police to be unconstitutional based on 18th century common law trespass while the so-called liberal bloc arguing that the installation of the unit was unconstitutional because it violated Mr. Jones' reasonable expectation of privacy due to the length of time the device was transmitting. Would we have had a different decision had the device only been installed for a week, ten days, two weeks?

From my point of view, the concept of trespass should be the starting point for any Fourth Amendment analysis - with the Katz analysis used to determine if an intrusion into one's privacy not contemplated by the Founding Fathers constitutes a search. Relying on one without the other makes little sense. Left unsaid is how the Court plans to reconcile the holding in Jones with prior decisions ignoring the tort of trespass upon property.

For more analysis, please see:

"Supreme Court strikes down GPS tracking device, raises more questions in the process," Liberty and Justice for Y'all (Jan. 23, 2012)

"Reactions to Jones v. U.S.: the government fared much better than everyone realizes," SCOTUSblog (Jan. 23, 2012)

Eyes in the sky

Law enforcement officials in North Dakota are the first in the nation to admit to using unmanned Predator drones to conduct surveillance flights. The aircraft are able to fly two miles overhead for hours at a time, allowing police a better opportunity to spy on folks - even without a warrant - without being detected.

A helicopter flying overhead is easily detectable. The helicopter has to fly low enough for those on board to see the target of their curiosity. The sound of the engine is more than enough to alert folks that there are spying eyes in the sky. The same holds true for police airplanes - they are noisy and easy to spot.

The unmanned drones allow the police to monitor a location for hours at a time with no warning to those on the ground below.

What's the big deal, you might ask. If I'm not doing anything untoward in my backyard, why should I care if the cops are flying two miles overhead with cameras and sensors pointed toward me?

It has to do with the way in which "unreasonable" has been defined and redefined over the years. The Founding Fathers were pretty clear in what they meant in the Fourth Amendment - if the police didn't have a warrant, the search was unreasonable. But, over the years, the courts have rendered that term damn near meaningless. In the name of security and efficiency, what was once patently unreasonable has now become the norm.

There were no airplanes or helicopters, much less unmanned drones, back in the late eighteenth century. The authors of the Bill of Rights had no inkling of what the Wright Brothers would do at Kitty Hawk. They had no idea what exotic technology we would have at our fingertips in the early twenty-first century.

Any tool that allows the state to snoop on what you're doing behind closed doors (or a gate) is yet another way for the state to deprive you of your right to be left alone. It is another fundamental assault of the notion of limited government - of course you'll never hear Rick Perry, Newt Gingrich or any of the other wingnuts decry the use of the technology.

Less and less of what we do every day is private. The state has no business snooping on its citizens. If they think someone's up to something no good, convince and judge and get a warrant.

In the meantime... smile, you might just be on candid camera.

Eyes in the sky

Unmanned drones will soon be making their appearance in the skies over Montgomery County, Texas. Officials with the Montgomery County Sheriff's Office are excited about the latest addition to their arsenal of tools to violate the people's right to be left alone.

Supposedly the drones will be used to "hunt criminals" and find missing persons.

But the drones will be flying over private property while conducting these searches. Well, what's the problem with that, you ask. The problem is the irreparable harm these flights will do to the citizenry's reasonable expectation of privacy.

You see, our rights to be protected against unlawful search and seizure are based on this vague notion of whether a particular intrusion violates a person's reasonable expectation of privacy. Right now a homeowner would have a reasonable expectation that no one is snooping on him in his own backyard if he has a fence or trees of shrubs that shield the public's view of his yard. But, announce that you will be sending unmanned drones on missions throughout the county and one's expectation that he will be left alone in his backyard goes out the window.

Of course the authors of the Bill of Rights had no idea that one day man would be able to soar through the skies in motorized flying machines. That just made it easier for the government to declare that your personal space did not extend upward into the heavens.

It's much like the situation at the nation's airports these days. The government tells you that you will have little or no expectation of privacy in an airport terminal if you expect to board a plane - that means you have no reasonable expectation of privacy. That means the government doesn't need a warrant to conduct a search of you or your bags.

The apparent goal of the state is to place as much of the public under their eyes (and thumbs) as possible. Quite ironic in this era in which every politician on the right screams to the high heavens of his fervent belief in limited government. The feudal lords north of Houston can proclaim all they want that these drones will make the public safer, but I'm not buying it.

Quite the contrary, the forces of the state are consolidating their power over the people. We have someone forgotten the words Abraham Lincoln spoke on the hallowed battleground of Gettysburg. The government is here to serve us, not the other way around.

In the name of protecting ourselves from whatever the threat of the month may be, we have allowed our interests to be made subservient to those of the government, including our right to be left alone. Someone please explain to me how that embodies the ideal of limited government.

See also:

"Droning on in Montgomery County: unmanned aircraft could be mounted with weapons," Grits for Breakfast (Oct. 29, 2011)

"Texas civil libertarians have an eye on police drones," Houston Chronicle (Oct. 31, 2011)

Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:

"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."

In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:

However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.

The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).

Twitter just says no

Which online organization actually has the balls to stand up and defend its users' privacy?

It's not Google. It's not Facebook. It's not Wordpress.

It's Twitter.

In the face of government subpoenas asking for users' information, Twitter has stood up and fought. When the US government served Twitter with a subpoena asking for information about four individuals allegedly involved with WikiLeaks, Twitter sought to have the subpoena unsealed so that the users could be notified of the attempts by los federales to access information.

Facebook and Google don't notify their users when they are requested to turn over information in response to a subpoena. So you may never know if you're one of the 4,000 folks the government is seeking information on every year.

And what has Twitter received for daring to stand for principle? Certainly not a lot of praise. The government wants you to believe that Twitter isn't being a good corporate citizen because it refuses to bend to the government's demands.

Twitter should be lauded for its efforts to protect our right to privacy. Twitter shouldn't be condemned, Twitter should be commended for fighting the government's exercise of power.

H/T to Kevin O'Keefe.