US Circuit Court Deals a Major Blow to Civil Liberties

The 4th Circuit Court of Appeals ruled this week that the government can ask a company for a user's location data without getting a warrant in a 12-3 decision. More specifically, they decided that asking for such information doesn't qualify as a search under the Fourth Amendment, and therefore doesn't require any protection.

If this sounds crazy, it should. If I keep a detailed journal of my whereabouts and travels each day and write it down in a notebook, that would be information that would require a warrant. If I use an app that records and stores the same information, it would not require a warrant, under this ruling.

Why it Matters
It's not difficult to see how this might help law enforcement--readily knowing a suspect's whereabouts would be quite useful indeed. And if they can get it without even demonstrating probable cause to a (likely compliant) judge, that makes it even easier by eliminating some of the bureaucracy. But this is one area where bureaucracy should be celebrated. The Fourth Amendment's prohibition against unreasonable searches and the due process guarantees in the Constitution exist for precisely this purpose: to limit law enforcement powers. This is essential not only for protecting basic privacy but also protecting political freedom.

The standard line of argument in favor of expanded law enforcement powers, whether we're talking about the local police or the National Security Agency, is that you shouldn't care if you don't have anything to hide. However, the problem with this is that there are so many laws in existence, so many in fact, that no one knows the exact number, that we're all bound to violate some of them from time-to-time. And if a law enforcement agency has access to intimate data about your life--like location data or even just metadata showing who you call on your cell phone--it would be easy to eventually find some transgression, given enough time and desire.

The above should not come off as conspiratorial. There are actually high profile cases in the past where law enforcement has attempted to intimidate political activists by investigating them to find unrelated issues. Perhaps the most famous case was that of Martin Luther King, Jr., whom the FBI unconstitutionally spied on. The FBI found nothing criminal to charge him, but did uncover evidence of adultery and tried to blackmail King with it.

Third Party Doctrine
Back to the story at hand, the court's ruling relied on a precedent known as the "Third Party Doctrine". Basically, this is the idea that if you willingly share information with a private third-party (say Google, your cell phone provider, an app maker, etc.), you no longer have any expectation of privacy with respect to that information and the government can access it without a warrant. This doesn't really make sense. If I willfully share my information with Google and the contract terms say Google won't share it with third-parties, I should logically expect that information to remain unknown to everyone except Google. However, the courts tend to land on the side of increasing government power, and so things like the Third Party Doctrine come into being.

There's a chance this case, or another that deals with this issue, will ultimately rise to the Supreme Court for a final ruling. But since the Supreme Court itself tends to have a pro-government power bias, it's not clear this would improve things. The more likely path to a positive outcome would involve state level legislation that could at least prohibit state agencies this power. It'd be great if it happened on the federal level also, but expanding civil liberties is never high on Congress's agenda.

For more on this story, you can check out the full write-up at The Intercept.

The Transparent Absurdity of the FBI's High School Spying

Each Presidential election seems to inspire more than its share of hyperbole and fiction. I can't remember the last election that wasn't obviously "historic" or "pivotal" or worse, a "fight for the soul of America". Indeed, there have been so many wars for America's soul that--if America's other recent wars are any guide--it's probably safe to assume there's not much left to save.

The likely salvage value of US essence notwithstanding, this too is a crucial election cycle of course. And as we discussed previously, the election of Donald Trump strikes many as the most apocalyptic possible outcome. So mass protests have ensued, and there have been a myriad of strange bedfellows sounding the call to Stop Trump--all to no apparent effect thus far.

Perhaps what's most interesting about this reaction to Trump's candidacy is what it implies about the people who are concerned. I'm not sure I can cite poll data to prove this conclusively, but most people seem to be (justifiably) concerned that his bombastic rhetoric would translate into deeply flawed policies, such as racial profiling or curtailing First Amendment protections. To be sure, this is absolutely a legitimate fear. But the only reason this should inspire such a harsh response is if we assume that these troubling policies are a radical departure from the status quo. Unfortunately, they are not. And recently, we received another awful reminder of this fact.

The FBI just revealed a plan to more systematically monitor and identify high school students for signs of "radicalization". The plan is part of the FBI's ill-advised Countering Violent Extremism (CVE) efforts, and they are trying to encourage teachers and fellow students report on suspicious behaviors. Naturally, the FBI has enough common sense not to overtly target a particular ethnic or religious minority as the most likely threat. But they don't have to. Think about American culture for all of five minutes and it's not hard to imagine which kids most students and teachers are going to suspect first.

From the educational materials, here are a few items that might be indicators of future "plans to commit violence":

• "Talking about traveling to places that sound suspicious"--I wonder if any Arabic city names would fit the bill?
• "Using code words or unusual language" -- because what self-respecting teenager uses slang unless they're a future terrorist?
• "Using several different cell phones and private messaging apps" -- burner phones aside, what teenager besides a terrorist would use messaging apps?
• "Studying or taking pictures of potential targets (like a government building)."-- and no selfies either!

Yeah, definitely none of those items is going to lead to false accusations or abuse. But then it gets worse.

The FBI's educational materials, which are conveniently available online, also highlight some common examples or themes of "violent extremist propaganda":

• Corrupt Western Nations
• We Must Fight Back
• Explicit narrative provided: "Our people are being oppressed. No one is doing anything. We must fight back."
• Superior Race
• Government Mistrust
• Environmental Destruction

This, I submit to you, is crazy. When I was in high school, I would have adamantly agreed with 2 out of 5 of those themes (1 and 4, to be precise). Indeed, I actually did my senior project on the utterly destructive and deceptive nature of US foreign policy. Hell, I even name-dropped Ron Paul in my commencement speech. But apparently, if I was in high school today, the FBI would see me as teetering on the edge of violent extremism. That's what antiwar people are known for after all--violence.

The benign nature of a few of these themes is tough to overemphasize--for instance, who in their right mind would possibly argue that the US government (or any other Western government) isn't corrupt?*

What is even more important, however, is what's not there. There's no mention of religion at all. Now perhaps someone might suggest that this is because the First Amendment would effectively prevent the FBI from stigmatizing religion. Then again, any sincere reading of the First Amendment would also nullify this entire enterprise of trying detect indications of future violent acts based on clearly political speech. Thus, it would seem Constitutional adherence is not their top priority. Note that this is also the same agency that decided "Mohammed Raghead" was an appropriate placeholder name for a would-be suspect in training materials (apparently, John Doe was taken). So something tells me political correctness isn't quite their top priority either.

Instead, perhaps it is a tacit admission of the fact that we have known for years. By and large, terrorists don't become terrorists because they just believe in Islam so hard or decided to binge-read the Qur'an over winter break. No, terrorism is motivated by political grievances--and a sense of solidarity with the victims of American and Western foreign policy. That's precisely what the "We Must Fight Back" example above is alluding to. In spite of all the hysterical posturing about our values being under attack and radical Islam, it appears that at least some members of the government actually do understand this. Hopefully, they'll spread the word to their colleagues in government sometime soon.

Those were just a few of the highlights in the FBI's new program. The interested reader is encouraged to check out the full write-up from Sarah Lazare at AlterNet. You can check out this great interview between Scott Horton and Arun Kundnani, one of the sources cited in the piece.

Today, many people are understandably fearful about what a Donald Trump Presidency would look like. Unfortunately, we don't really have to wonder. The answer is that it probably wouldn't look all that much different than Barack Obama's. The US government doesn't need to get Donald's okay to start surveilling and persecuting Muslims; it has already been hard at work on that project for some time.

*Granted, your archetypal third-world despot is going to be more corrupt. But the theme put forth by the FBI offers no nuance, so we'll take it at face value.