Have nothing to do with the [evil] things that people do, things that belong to the darkness. Instead, bring them out to the light... [For] when all things are brought out into the light, then their true nature is clearly revealed...

-Ephesians 5:11-13

Tag Archives: Fourth Amendment

The Privacy Pendulum is Swinging back Towards Freedom

With Apple’s announcement of its new iPhone 6 10 days ago also came the announcement of an upgrade of its operating software – the iOS 8 – that now makes it impossible for law enforcement to break the code and retrieve the phone’s private information, even if it has a search warrant. On its website, Apple said:

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Leahy Offers Weak Bill to Curb NSA Eavesdropping on Americans

This article first appeared at TheNewAmerican.com on Wednesday, July 30, 2014:

English: Official photo of Senator Patrick Lea...

Senator Patrick Leahy (D-VT)

On Tuesday, Senator Patrick Leahy (shown, D-Vt.), Chairman of the Senate Judiciary Committee, introduced his version of the USA Freedom Act intended to strengthen a similar bill passed by the House last May. It’s scarcely an improvement and likely won’t be taken up before November, if at all in this congress.

But Leahy was optimistic nonetheless, saying that his bill, if enacted, “would represent the most significant reform of government surveillance authorities since … the USA Patriot Act 13 years ago.” That was easy for this hard-left Democrat to say, as there has been no reform of the unconstitutional Patriot Act since it was passed. In fact, without revelations provided by whistleblower Edward Snowden, even these modest “reforms” would never have been presented. Without Snowden, the NSA would have continued collecting every last piece of communications data it could and storing it for future reference at one or more of its vast collection facilities around the country. Since the bill was presented so late in this Congress, it is virtually certain no action will be taken on it.

The House bill that was passed back in May was so full of loopholes and modifications by last minute amendments as to make the effort essentially ludicrous. Although offered jointly in October 2013 by Leahy and his House counterpart, Jim Sensenbrenner of Wisconsin (the author of the Patriot Act), only the House bill ever saw the light of day. At the time, Sensenbrenner expressed great hopes for his bill:

Following 9/11, the USA Patriot Act … has helped keep Americans safe by ensuring information is shared among those responsible for defending our country and by enhancing the tools the intelligence community needs to identify and track terrorists.

But somewhere along the way, the balance between security and privacy was lost…. Washington must regain Americans’ trust in their government. The USA Freedom Act [I am offering] is an essential first step.

That first step was more like a stumble. Under the bill, according to The Guardian, “the government will still be able to collect phone data on Americans, pending a judge’s individualized order based on ‘reasonable articulable suspicion’ — the standard preferred by the NSA (National Security Agency) — of wrongdoing.” This is a far cry from the “probable cause” requirement demanded in the Fourth Amendment, but that’s only the beginning.

The bill purports to modify Section 715 of the Patriot Act while saying nothing about Section 702, which allows worldwide surveillance by the NSA. The bill allows for the continuous collection of Americans’ telephone records, according to the Open Technology Institute. Most grievously, the bill extended the Patriot Act until December of 2017.

Once the House passed its USA Freedom Act, 303 to 121, those opposed, including Republicans Darrell Issa, Ted Poe, and Raul Labrador and Democrat Zoe Lofgren expressed their disappointment with it. Said Lofgren, “[This] bill will actually not end bulk collection, regrettably.” It shifts collection responsibilities from the NSA to the telephone companies to which the NSA has virtually unlimited access, so it’s a cosmetic change only. The bill requires the NSA to get permission from the FISA Court, but FISA is not known for having a high regard for the freedoms protected by the Bill of Rights.

When Senator Ron Wyden (D-Ore.) saw what the House had wrought, he said he was “gravely concerned that the changes that have been made to the House version of this bill have watered it down so far that it fails to protect Americans from suspicionless mass surveillance.”

Not surprisingly, the White House endorsed the watered-down version of the bill:

The Administration strongly supports … the USA Freedom Act…. The Administration applauds and appreciates the strong bipartisan effort that led to the formulation of this bill, which heeds the President’s call on this important issue.

The bill ensures our intelligence and law enforcement professionals have the authorities they need to protect the Nation, while further ensuring that individuals’ privacy is appropriately protected.

Especially grievous is the power that continues to be granted to the so-called FISA “court.” This is the secret court that first came to light when Edward Snowden in 2013 leaked a top-secret order issued by the court requiring a subsidiary of Verizon to provide a daily, on-going feed of all call detail records — including those for domestic calls — to the NSA. As Jennifer Granick, director of civil liberties at Stanford Law School, explained,

The Administration and the intelligence community believe they can do whatever they want, regardless of the laws Congress passes, so long as they can convince one of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC) to agree. This isn’t the rule of law. This is a coup d’etat.

Leahy’s bill allegedly will tighten up the House bill somewhat, creating a “special advocate” for liberty at the FISA courts, and limiting the NSA from vacuuming up data from an entire zip code or all the records from a communications service provider. It also declassifies some of those FISA court orders which have remained sealed and protected from public view. In its tentative support for Leahy’s new offering, Nadia Kayyall of the Electronic Frontier Foundation (EFF), said,

The legislation may not completely end suspicionless surveillance … it allows the NSA to get a second set of records (a second “hop”) with an undefined “direct connection” to the first specific selection term.

Because the “direct connection” standard is vague, the government may seek to construe that phrase to mean less than reasonable suspicion.

Translation: The NSA, under Leahy’s new stronger, tighter, more restrictive language, may continue to do whatever it pleases in collecting and storing for later use all private communications from Americans.

Leahy’s bill will probably never see the light of day in this congress and will have to be reintroduced in the next session if anything is to be done to rein in the NSA’s collection of data. In the meantime, the NSA’s vacuuming of innocent Americans’ private communication continues unabated.

 

 

Two Unanimous Supreme Court Decisions Grant Immunity to Police, Secret Service

Police Tape

Following the announcements on Monday of the Supreme Court’s unanimous decisions in two “qualified immunity” cases, John Whitehead, president of the Rutherford Institute, expressed dismay:

Not a day goes by without reports of police officers overstepping the bounds of the Constitution and brutalizing, terrorizing and killing the citizenry. Indeed, the list of incidents in which unaccountable police abuse their power, betray their oath of office and leave taxpayers bruised, broken and/or killed grows longer and more tragic by the day to such an extent that Americans are now eight times more likely to die in a police confrontation than they are to be killed by a terrorist.

This lawlessness on the part of government officials, an unmistakable characteristic of a police state, is made possible in large part by the courts, which increasingly defer to law enforcement and prioritize security over civil liberties. In so doing, the government gives itself free rein to abuse the law, immune from reproach, and we are all the worse off for it.

A closer look at the two cases to which Whitehead refers, however, reveals

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Review of “No Place to Hide” by Glenn Greenwald

Glenn Greenwald, the facilitator in bringing to light Edward Snowden’s staggering revelations over the NSA’s surveillance of Americans, titled his book from a comment made by Senator Frank Church back in 1975. As head of the U.S. Senate’s Select Committee on Intelligence Activities, Church said:

The United States government has perfected a technological capability that enables [them] to monitor the messages that go through the air…

That capability at any time could be turned around on the American people, and no American would have any privacy left. Such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter.

There would be no place to hide.

Greenwald opens his book as if it were a John Grisham thriller,

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Minnesotans Score Small Victory in Civil Asset Forfeiture War

A photograph of a lake with trees.

(Photo credit: Wikipedia)

On August 1, citizens in Minnesota will rejoice that the police can no longer steal their property without being convicted – or even charged with – a crime. Until then Minnesota remains an upside-down world, and in many other states as well, where police can seize cash and property if they think that somehow the cash or the property was involved in a crime. Prior to August 1, citizens who have had their property seized will have to prove a negative:

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Supreme Court to hear Critical Fourth Amendment Appeals Tomorrow

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(Photo credit: Effnheimr)

David Leon Riley was driving through a residential area of San Diego in August of 2009 when he was stopped for having expired license tags on his car. A so-called routine search of his car turned up a couple of handguns whereupon he was arrested. The police took his smartphone and examined it down at the station house, discovering emails, text messages and videos implicating him in a gang-war drive-by shooting two weeks earlier. He was charged with and convicted of shooting at an occupied vehicle, attempted murder, assault with a deadly weapon along with other gang-related crimes and sentenced to 15 years in jail.

Riley’s attorneys tried to have the evidence from his smartphone suppressed claiming that the police didn’t secure a search warrant first, without success. But

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The Left Attacks Pulitzer for its Public Service Award to Washington Post

snowden_nyc26_june_DSC_0046

This article was first published at The McAlvany Intelligence Advisor on Wednesday, April 16, 2014:

Instead of supporting the Pulitzer Prize Committee’s decision to give its coveted Public Service award to the Washington Post for publishing Edward Snowden’s revelations over NSA’s spying on innocent Americans, the Left (i.e., those supporting the surveillance state) has instead rather come unglued over the matter. Rep. Peter King, the noisy center-left RINO from New York, was first out of the box:

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Pulitzer Prize Award Over NSA Revelations Generates Vitriolic Criticism

The Pulitzer Prize gold medal award 한국어: 퓰리처상 ...

The Pulitzer Prize gold medal award (Photo credit: Wikipedia)

The Washington Post’s Executive Editor Martin Baron anticipated that there would be strong criticism voiced when those opposed to Edward Snowden’s revelations learned of the Pulitzer Prize Committee’s decision to award its prestigious Public Service award to his paper. He may not have estimated the degree and extent and especially the vitriol of that criticism.

Said Baron:

Disclosing the massive expansion of the NSA’s surveillance network absolutely was a public service. In constructing a surveillance system of breathtaking scope and intrusiveness, our government also sharply eroded individual privacy. All of this was done in secret, without public debate…

[Without Edward Snowden’s disclosures] we never would have known how far this country had

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States Beginning to Demand SWAT Team Transparency

SRA Dave Orth (L) and SRA Clarence Tolliver (R...

(Photo credit: Wikipedia)

Examples of no-knock raids performed by SWAT teams on innocents across the country have even raised the consciousness of the London-based Economist magazine which declared in its most recent issue that “America’s police have become too militarized.” It opened with the story of the raid on the home of Sally Prince in Ankeny, Iowa, by a SWAT team fully helmeted and

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Warrantless Searches Expanded Under Latest Supreme Court Ruling

This article was first published at the McAlvany Intelligence Advisor on Friday, February 28, 2014:

On the surface, the Supreme Court’s ruling on Tuesday in Fernandez v. California seems pretty innocuous. Only when the details are examined does it become clear that the Fourth Amendment has been

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Supreme Court Expands Police Power at the Expense of the Fourth Amendment

On Tuesday the Supreme Court ruled in Fernandez v. California that when a resident who objects to the search of his residence is removed through a lawful arrest, the remaining resident may give police consent to search without first demanding a warrant.

The back story is much more complicated than that official summary, and

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SWAT Team Member Killed in Another Botched Drug Raid

This article first appeared at The McAlvany Intelligence Advisor on Friday, February 14, 2014:

Another botched drug raid in Texas in December led to the homeowner defending himself, shooting and killing a SWAT team member, and a grand jury declaring he was justified in doing so. It’s usually the homeowner who suffers death, maiming, or jail.

Hank McGee was sleeping in his trailer house near Dallas, Texas, with his pregnant girlfriend early Thursday morning, December 19, when

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Judge Rules Against the DEA in Prescription Drug Privacy Lawsuit

The favorable ruling sought by the ACLU in Oregon in turning back the DEA (Drug Enforcement Administration) that its “administrative subpoenas” overruled Oregon’s privacy guarantees was satisfying but is likely to be challenged. Said ACLU attorney Freed Wessler:

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War on Drugs Claims SWAT team Member Using No-Knock Warrant

Hank McGee should be thankful that he didn’t wind up dead or dreadfully disabled in the no-knock raid on his trailer house in Texas early Thursday morning, December 19. Instead he reacted in fear that he was being robbed, grabbed his pistol and shot and killed one of the SWAT team members.

On Thursday, February 6th, a grand jury in Burleson County declined to indict him for murder, the first time in recent memory such a verdict had been handed down, according to McGee’s attorney, Dick DeGuerin. DeGuerin said McGee thought someone was

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Pushback increasing against Federal government roadside checkpoints

With some 60 cities participating in federal checkpoints, pushback from citizens and local police and sheriff’s departments is increasing. In its defense, the National Highway Traffic Safety Administration (NHTSA) said in an email:

Each year, close to 10,000 people die in drunk driving crashes: 27 people a day, or one person every 53 minutes, according to [our] data.

To better understand the issue, the agency has regularly conducted its National Roadside Survey of Alcohol and Drugged Driving in communities across the country for over 40 years. The survey provides useful data about alcohol and drug use by drivers, and participation is completely voluntary and anonymous. More than 60 communities across the country will participate this year, many of which participated in the previous survey in 2007.

NHTSA always works closely with state and local safety officials and local law enforcement to conduct these surveys as we work to better inform our efforts to reduce drunk and drugged driving.

This disclaimer neatly avoids any discussion of

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District Court Judge Rules New York City’s “stop and frisk” policy is unconstitutional

In District Court Judge Shira Scheindlin’s ruling in Floyd v. The City of New York on Monday, there was both good news and bad news. The good news is that Mayor Michael Bloomberg’s policy, with the enthusiastic cooperation of his police commissioner Ray Kelly, violates both the Fourth and the Fourteenth Amendments to the United States Constitution. The bad news is that,

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Backpacks, Pressure Cookers and Baloney

When Michele Catalano blogged yesterday using the title “Pressure Cookers, backpacks and quinoa, oh my!” it didn’t gain purchase until it was picked up by the Guardian. From there the story jumped to The Atlantic which, 24 hours later, had more than a third of a million views.

Catalano used to be the music editor for Forbes but now

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Surveillance State to be Extended Nationally if NYPD Commissioner Raymond Kelly Replaces Napolitano at DHS

This article first appeared at The McAlvany Intelligence Advisor on Wednesday, July 17th, 2013:

 

Although President Obama says he has many strong candidates to replace Janet Napolitano as secretary of the Department of Homeland Security, it’s clear that NYPD Commissioner Raymond Kelly has the inside track. If Obama is determined to complete building the surveillance state nationally, Kelly is just the man

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New Revelations about NSA Spying Abroad Enrage European Officials

Saturday’s revelations by the German newspaper Der Spiegel that the US placed bugs in European Union officials’ offices in New York and Washington and hacked into EU headquarters in Brussels have ignited a firestorm of indignation among German and European officials. Coming on the heels of the FISA court’s ruling in April that Verizon must turn over telephone records to the National Security Agency and Edward Snowden’s exposure in June of PRISM that has been vacuuming up American citizens’ internet communications for years, expressions of outrage were heard from German and European Union politicians.

Martin Schulz, head of the European Parliament, said:

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NSA and Verizon and our privacy

By now every sentient being on the planet knows that the National Security Agency ordered Verizon back in April to give it the phone records of its customers.  They also know that it was signed by a phony judge of a phony court under an illegal section of an unconstitutional law passed by congress and then reauthorized by another congress.

I’ve looked into this a little bit and here’s what I’ve found.

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Many of the articles on Light from the Right first appeared on either The New American or the McAlvany Intelligence Advisor.