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Privacy march, Washington D.C, 2013. Credit: James Bovard

U.S. intelligence agencies are telling us not to worry about the FISA Amendments Act, a 2008 law that allows the NSA to tap into the communications of non-U.S. persons who are outside the U.S., even though this lawsidestepsthe Fourth Amendment as it allows the NSA to record the emails and phone calls of U.S. citizens who happen to be communicating with people overseas.

How many American citizens is the government listening in on? We dont know, as the intelligence agencies told Congress they cant say just how many American citizens theyve eavesdropped on (without warrants).

Despite this, they say Congress should just renew the controversial section 702 of the Act before it expires in December; in fact, they want it to be made permanent law.

Congress would probably do this too if it wasnt for the fact that theyve recently learned their privacy is also at stake. Recent unmaskings show that even a congressmans conversations with a foreign official might go public with their names un-redacted. Then, even if the member of Congress didnt do anything wrong, what they said and whom they spoke with could quickly be taken out of context by the media outlets that root for the opposing team.

We cannot live in fear of our own intelligence community, said Sen. Rand Paul (R-KY). They have such power to suck up every bit of every transmission, every communication we ever made. We cant just have them willy-nilly releasing that to the public.

In this case Paul is not a lone gadfly. Politicians from Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee, to Sen. Dianne Feinstein (D-Calif.), arent so keen about what this law can do to them. Theyve learned that this is a new age when elected officials, not just privacy advocates, fear not just leaked facts, but innuendo and out-of-context spin from off-camera conversations or email exchanges.

Some Republicans even used a debate at a recent congressional hearing to suggest Obama administration officials had purposely unmasked elected officials and then leaked the info to harm Trump administration officials. Specifically, former National Security Advisor Susan Rice and former U.S. ambassador to the United Nations Samantha Power have been accused of unmasking Trump administration officials and expanding who could see the documents in an effort to get them to leak.

All of this is very new and confusing to our politicians. But, as fiction can gaze just beyond the headlines to show us where we are going and how we might keep our freedom in this changing world, my novel Kill Big Brother takes this plot to its dramatic end. What I found while researching and writing the book is there are ways to keep our intelligence agencies strong enough to protect us while keeping our freedom.

This begins with enforcing a change in mindset. Too often our intelligence agencies, as law enforcement will, have their eyes so fixed on the problemsterrorism, ransomware wielded by criminal syndicatesthey lose sight of the freedom they are supposed to be protecting.

So what should Congress do with Section 702 of the FISA Amendments Act?

First, they shouldnt make it permanent law, as Congress needs to revisit this issue periodically as events and technology change.

Next, Congress should require the intelligence agencies to report by specified dates how many U.S. citizens have been listened to or have had their emails viewed as a result of this provision in the lawand not just general numbers, but real data. The law sunsets in December, so Congress should use this deadline to pressure the intelligence community to get these answers now.

Congress should then update the law by setting up a legal apparatus that will help to quickly, in this modern world, give the NSA and more the ability to get approval or to, in some cases, get approval within a certain time period after the fact for listening in on communications that might include U.S. citizens. Yes, this means stripping away the NSAs ability to listen away with no checks or balances from Congress or the courts. The Fourth Amendment protections need to be respected. If technology makes it possible for the NSA to listen in on conversations,then the NSA, with all of its vast resources, can propose ways for technology to help create a fast approval and oversight process.

Civil libertarians shouldnt forget that U.S. intelligence agencies have an almost impossible task. They have to find terrorists and others who are plotting to do us harm in an age when encryption and other technologies allow even unsophisticated criminals to hide their communications. But then, history is also a teacher heresimply empowering secretive government organizations can lead to some undesirable places.

Also, encryption and other technologies have become an important part of modern commerce. There is no turning back the clock. What it comes down to is that good police work is called for, not broad new powers for a Big Brother state.

Few Americans now know that under Section 702 the FISA Amendments Act the government now collects millions of communications annually from American citizens, according to research done by The Washington Post. Part of the way the NSA does this is by temporarily copying internet traffic going in and out of the U.S. As a result, they are copying and potentially searching emails between journalists and their sources, communications protected by attorney-client privilege, and lawful conversations elected officials are having with foreigners.

Just imagine if a new Edward Snowden leaked this data, information that currently can be used in domestic criminal and civil proceedings, without a warrant. Our right to communicate privately, via Fourth Amendment protections, is paramount to our freedom; also, the First Amendment right to free speech is dampened by this lack of privacy. The U.S. intelligence agencies should be reminded that telling us to give up what they are supposed to be protecting also kills our liberty.

Frank Miniter is the author ofKill Big Brother, a novel that shows how we can keep our freedom in this digital age.

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We Can't Live in Fear of Our Own Intelligence Community - The American Conservative

Congress should sunset any extension of the intelligence communitys dubious electronic surveillance authority to intercept, store, and search the contents of international communications under section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.

Enacted in 2008, section 702 initially sunset in 2012. Congress later extended the sunset date until December 31, 2017.

Generally speaking, a statute should sunset whenever predictable changes in technology threaten statutory obsolescence; its encroachment on liberty is unknown or uncertain; the statutes effectiveness is doubtful; the governments compliance with the statute is spotty; or, the constitutionality of the statute remains in doubt.

All five of these time-honored considerations militate in favor of a sunset date for any extension of section 702 beyond December 31, 2017.

Digital technologies are changing a warp speed. What is science fiction today is reality tomorrow.

The changes affect the ways in which international communications are conducted; and, government capabilities for intercepting, storing, and searching the contents of international communications. Indeed, section 702 responded in part to the migration of international telecommunications from satellite to fiber. The development of cloud technologies has has confounded the Stored Communications Act of 1986 as illustrated by the United States Court of Appeals decision in Microsoft Corp. v. United States.

The governments technical capabilities for intercepting, storing, and searching the contents of international communications are rapidly expanding. These pioneering technologies might easily evade limits imposed by section 702 written by Congress with an eye on 2017. Any section 702 extension should thus sunset in four years to insure against a horse-and-buggy statute governing in an age of interstate highways.

Another sunset for 702 is also prudent because of the governments professed ignorance of its to intercept or search the international communications of American citizens protected by the Fourth Amendment. At present, the government insists it is unable to distinguish between electronic communications between foreign persons located outside the United States and communications between a foreigner and a U.S. person in the United States. Thus, Congress is clueless as to the magnitude of section 702 invasions of the constitutionally protected privacy of United States citizens. This information should be known and disclosed by the intelligence community before Congress should even consider making section 702 permanent.

The effectiveness of section 702 in thwarting international terrorism or espionage is questionable. After nine years, the intelligence community has yet to document a single case in which section 702 enabled the preemption of an international terrorist act in the United States. Former National Security Agency official and renowned expert Bill Binney has opined that the NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant. NSA analysts are theoretically tasked with reviewing 40,000 to 50,000 questionable records each day. If section 702 is largely irrelevant to frustrating international terrorism, it amounts to a massive invasion of privacy for its own sakean illicit government objective.

The government has commonly violated section 702 surveillance limitations. Illustrative but far from exhaustive was the April 26, 2017 FISC decision authored by Judge Rosemary Collyer sharply rebuking the intelligence community for illegal surveillance of American citizens over a five-year period which raised very serious constitutional questions. These chronic violations also argue against any permanent extension of section 702.

Finally, the section seemingly authorizes dragnet, warrantless interceptions and searches of the contents of the international communications of American citizens in violation of the Fourth Amendment. The statute does not require any suspicion that citizens whose communications are seized and searched are implicated in international terrorism, espionage, or other crime as a predicate for invading their communications privacy.

The United States Supreme Court has yet to address the constitutionality of section 702. Congress should refrain from giving it permanent life unless and until it receives the Courts gives imprimatur. Caution is the order of the day when skating close to the Constitutions edge.

In sum, every dictate of prudence favors a congressional four-year sunset if it decides to extend section 702 beyond December 31, 2017. That would compel a fresh and more informed congressional examination of the statute after the 2020 presidential election.

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Sunset any Extension of Electronic Surveillance Authority - HuffPost

WisBar

Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal WisBar All things considered, Blackman's consent to the blood draw was not voluntary and free, and was not an unconstrained choice, it was the product of coercion, express or implied, and therefore was invalid under the Fourth Amendment, Abrahamson wrote.

Continue reading here:
Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal - WisBar

YAKIMA, Wash. A local case questioning whether Yakima County jail authorities are violating due process by enforcing federal immigration holds could affect jails nationwide, a Yakima attorney said Wednesday.

U.S. District Judge Salvador Mendoza granted a temporary restraining order Tuesday requiring the county jail to remove an immigration hold placed on an inmate so he could be released on bail pending trial for a local assault charge.

Mendozas order resulted from a lawsuit filed by the inmates attorney arguing that the hold placed on local inmates by federal Immigration and Custom Enforcement officers was enforced by the county jail without judicial review, a violation of civil rights under the Fourth Amendment. ICE officers typically fill out a document, called an administrative warrant, naming an inmate suspected of violating immigration laws and give it to jail officials who in turn place the local inmate on a federal hold.

The issue here is (ICE) is giving the form to Yakima County and Yakima County is doing something that is not under its authority, said Bernardo Rafael Cruz, an attorney with Columbia Legal Services in Yakima. Cruz is representing the inmate. This could have wider affects, and it could have wider policy implications across the country.

Calls to ICE spokeswoman Rose Riley in Seattle seeking comment were not immediately returned Thursday.

The temporary restraining order against the county is part of an ongoing lawsuit filed by Columbia Legal Services and the Immigrants Rights Project on behalf of Antonio Sanchez-Ochoa. The suit seeks to stop the county jail from complying with immigration holds without judicial review and award Sanchez-Ochoa damages to be determined at trial.

Although a local judge granted Sanchez-Ochoa a $50,000 bail option on the local charge, a bail bondsman wouldnt work with him because of an immigration hold placed on him at the jail, Cruz said.

Sanchez-Ochoa has been incarcerated since May 4.

Yakima County Prosecuting Attorney Joe Brusic said he and other prosecuting attorneys from across the state in an April meeting with U.S. district attorneys requested that ICE officers get warrants signed by a federal judge when seeking to place holds on local inmates. The prosecuting attorneys were told it wasnt necessary, Brusic said.

Thats what we would truly like, but ICE, theyre not going to do that anytime soon, he said.

This is starting to create a national ripple in the type of paperwork needed to present to local authorities for holds, Brusic added.

However, U.S. District attorneys also said they wouldnt protect counties honoring the administrative warrants from liability stemming from a potential lawsuit.

Theyre not going to help us out, at least thats what they said in April, and thats not right, he said. We were summarily frustrated with that response.

Even so, the county continued to work with ICE due to a good working relationship with the federal agency in the past and because the jail has federal contracts which generate income for the jail to house prisoners with immigration holds, Brusic said.

Its complicated on many levels.

Under the federal contract, the jail receives about $84 per inmate held for ICE.

On average, ICE brings about 120 federal inmates suspected of violating immigration laws to the jail each month. In addition, ICE officers review the jails bookings daily and place holds on other inmates who have been jailed locally for a variety of offenses. As many as 15 of those local inmates can be held each month at ICE officers requests.

Inmates already in federal custody when brought to the jail are not included in the lawsuit because federal law gives ICE officers authority to arrest and detain someone suspected of being in violation of immigration laws, said attorney Matt Adams with the Northwest Immigrant Rights Project in Seattle.

Typically, prosecution of local inmates at the jail must be completed before ICE takes custody of them, jail officials have said.

But placing a federal hold on those inmates while they are in local custody boils down to local authorities doing the work of federal authorities, Adams said.

What our case is about is clarifying that the Fourth Amendment prevents Yakima County from arresting people at the request of federal immigration authorities, he said.

Read more:
Local immigration case could have national impact - Yakima Herald-Republic

Another day, another video showing law-enforcement officers abusing their powers against a black manbut this time the case ends with the city of Aurora, Colo., agreeing to pay $110,000 to settle a claim brought by the American Civil Liberties Union of Colorado on behalf of Darsean Kelley, who was unlawfully stopped, detained and tased by Aurora police just as he informed them, I know my rights.

The ACLU of Colorado announced the settlement on its website, noting that the city of Aurora says the settlement is not an admission of guilt.

Through constructive, respectful dialogue, the ACLU of Colorado and the city of Aurora, through the city attorneys office, were able to work together to resolve this case promptly and without expensive and time-consuming litigation, ACLU of Colorado Legal Director Mark Silverstein said. The ACLU commends the city of Aurora for its willingness to come to the table in good faith to find a resolution that is fair to Mr. Kelley and beneficial for taxpayers of the city.

The settlement stems from a Feb. 19, 2016, incident in which Aurora police officers were responding to a call about a potential crime at an apartment complex. Although they had no description of a suspect and no reason to believe that Kelley, or his cousin who was with him, was involved in any criminal activity, they stopped them anyway as they were walking down a nearby street.

According to the ACLU, the officers refused to tell Kelley why he was being stopped. After he asked them several times if he was being detained, the officers told him that he was, and yelled orders at him as he asked, For what?

Kelley complied with the officers orders anyway and held his hands up with his fingers outstretched to show that he was not a threat. At one point he pointed to his chest and said, I know my rights. It was then that one of the officers shot him in the back with a Taser, causing him to lose all muscular control in his body, fall backward and strike his head on the pavement.

Kelley was arrested and charged with disorderly conduct, spending three days in jail before he could be bailed out. He was successfully defended in the criminal case by ACLU lawyers, who filed a motion arguing that the unlawful street detention violated his Fourth Amendment rights.

The incident was captured by police bodycam video and shared by the ACLU on social media in September 2016. Kelley can be seen clearly complying with officers and not posing a threat before he is tased.

Even with that evidence, the Aurora Police Department Internal Affairs Bureau, as well as the citys Independent Review Board, determined that the use of force against Kelley was reasonable, appropriate and within policy. In addition, the IRB found that the incident did not warrant further investigation.

That the Aurora Police Department reviewed this incident and gave it a departmental stamp of approval shows the department is incapable of policing itself, ACLU Staff Attorney Rebecca T. Wallace, who led the settlement negotiation for ACLU of Colorado, said. If what happened to Darsean Kelley is business as usual for the Aurora Police Departmentas their own review board foundthen Aurora taxpayers can expect to continue to foot the bill while black and brown men suffer at the hands of police.

Read more at the ACLU of Colorado.

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Unlawful Detention and Tasing Claim on Behalf of Black Man Ends With $110000 Settlement - The Root