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ACLUA Somali familyimmigrants who are now legally citizens of the United Statesare suing several federal agencies over what appears to have been a particularly rough border detention and search. Their treatment, they say, stems from the government's secretive, unaccountable watchlists.

They family is being represented by the American Civil Liberties Union (ACLU), which has spent years fighting to force a system of due process on the various watchlists that agencies use (and share among each other). Thanks to these lists, hundreds of thousands of people are subjected to increased and intrusive searches when traveling.

The lawsuit attacks two significant and well-established problems with these watchlists. One: Even though these lists supposedly exist to keep an eye on suspected terrorists, they contain hundreds of thousands of names of people with no known ties to terrorist organizations. Two: The system is handled secretly, with almost no oversight or due process. People who end up on the list often cannot find out why or even get the government to acknowledge that they're on a list; their only option is to ask to be taken off the list and hope it happens.

The plaintiffs are the Wilwal-Abdigani family, who in March 2015 traveled from their home near Minneapolis to visit relatives in Canada. According to the lawsuit, they had little trouble passing into Canada but were warned that that the father, Abdisalam Wilwal, had a notation on his records that might result in some additional questions when he attempted to return home.

That proved to be an understatement. According to the lawsuit, when the family tried to return to the United States, border agents confronted them at gunpoint and detained them for hours. The lawsuit says that the border patrol asked Wilwal if the travelers were Muslims and accused him of involvement in terrorism. They handcuffed Wilwal and left him alone in a room for hours without even questioning him. He ended up fainting, and they had to call in paramedics. They eventually questioned him for 45 minutes, though he was detained for more than 10 hours.

The other members of the family were detained separately and were not allowed to leave either. At one point the mother, Sagal Abdegani, realized the agents had neglected to take the cellphone away from one of her children and she managed to call 911 to try to get outside help. An agent snatched the phone away from her. According the lawsuit, border patrol agents also took the couple's 14-year-old son into a separate room and demanded he take off his clothes for a strip search. He refused to comply.

The family was released much later in the day and was allowed to return home. They know now that Wilwal's name is in a federal watchlist database, but they don't know why. They've petitioned the feds to have Wilwal's name removed, but per the federal government's processes, the Department of Homeland Security declined to confirm or deny whether Wilwal is actually watchlisted or whether they removed him from the list. The lawsuit notes, "At no point in the process can an individual appear in person before a neutral decision maker to challenge placement on the watchlist or its consequences."

The family is claiming violations of their Fourth Amendment rights, claiming unconstitutional searches and seizures as well as excessive force. They're also claiming violations of their Fifth Amendment rights to due process, because of the way these federal lists are managed and because of the barriers to clearing Wilwal's name.

For the Fourth Amendment claims, unfortunately, the courts have historically given federal officials very wide latitude to engage in warrantless searches with very little justification at the country's borders. But some important court rulings bolster's Wilwal due process complaint, and the ACLU knows itbecause they're involved with some of those suits as well.

These lawsuits involve the federal no-fly list, a subset of these terror watchlists. People on the no-fly list are denied the right to board aircraft under a secretive, opaque system much like the one described in this lawsuit. In 2014 a federal judge ordered the Department of Justice to develop a system where people can determine whether they are actually on the no-fly list and a mechanism for correcting mistaken inclusion on the list. One woman turned out to have been added to the no-fly list by accident (somebody checked the wrong box); she had to fight the government for years to be removed. She only found out about the mistake as a result of the lawsuit.

Read the family's lawsuit here. Read the mother's own account of the border search here.

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Secret Government Watchlist Sweeps Up an American Family, and Now They're Suing - Reason (blog)

Congress is getting ready to debate reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, set to expire at the end of the year. Liberty-minded voters and lawmakers should support reform of this provision, to insure that the federal government's power is kept in check.

Both the Republican and Democratic parties have abused warrantless surveillance authorities when in power, to sweep up communications of American citizens in a way that violates the Fourth Amendment to the U.S. Constitution.

Section 702 passed in 2008, when Democrats controlled both the House and the Senate. The original bill was supported strongly by former Speaker Nancy Pelosi. With Republicans in control of Congress and the White House, they now have the power to reform the same surveillance overreach they have previously criticized.

The fight has become an internal struggle between the old establishment guard of the Republican Party and newer, more liberty-minded members who are concerned about privacy and government overreach. The future of the Republican Party includes support for privacy and Fourth Amendment rights. Therefore, the leadership in the House, where this bill is expected to start, should be responsive to the members who are leaders of the privacy movement. Rep. Bob Goodlatte, R-Va., has voiced support for Section 702 reform, and hopefully will lead the charge to bring together divergent elements of the Republican Party, to support a common sense compromise on the bill.

The Bush administration engaged in widespread warrantless wiretapping without any congressional authorization. Likewise, the Obama adminisration used Section 702 to engage in similarly unconstitutional practices.

The provision has been used in a way that violates the Constitution and does not enhance national security. A Washington Post analyzed documents released by Edward Snowden and reported on July 5, 2014 that, "Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency" under Section 702. The Washington Post reviewed 160,000 intercepted email and instant messaging conversations and reported on widespread monitoring of Americans' data that should have required a warrant based on probable cause for the government to collect. This massive data collection is a problem unto itself because the government amasses a giant database of information that they keep.

These abuses are evidence enough that Section 702 needs to be reformed or allowed to expire.

Congress must insist on closing the so-called backdoor search loophole. This loophole allows the government to target Americans under Section 702, under the pretense that they are really targeting foreign nationals. The FBI routinely performs these types of searches, even in cases where they lack the evidence necessary even to open a formal investigation.

There are currently no prohibitions on the use of this information in prosecutions against Americans for alleged offenses unrelated to terrorism. That Section 702 can be used to wiretap Americans without a warrant, and in investigations that have nothing to do with terrorism, demonstrates the amount of mission creep that this anti-terrorism provision has permitted.

Another critical reform that should be imposed on the program would be to limit the scope of Section 702 to only allow targets to be foreign powers or agents, and exclude individuals who are not associated with terrorism and may merely be businessmen or journalists. Furthermore, the upstream surveillance program that has been used to search emails and text messaging on a massive scale should be ended.

Real transparency and oversight of FISA programs needs to be part of any compromise, and any retained data needs to be purged on a regular basis. Finally, private citizens need to have a way to challenge unconstitutional surveillance in court if they believe their rights have been violated.

The law has been implemented in a way that violates the Bill of Rights. This should lead constitutional conservatives in the Senate to filibuster any reauthorization that does not include substantial reform.

Brian Darling is former Senior Communications Director and Counsel for Sen. Rand Paul (R-Ky.). He can be followed on Twitter: @BrianHDarling.

Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.

Go here to read the rest:
FISA reform is needed, and conservatives should lead the way - Washington Examiner

The Suites apartments in Longmont on June 9, 2017. (Cliff Grassmick / Staff Photographer)

Longmont officials on Monday said it would not be in the public's interest to release a 40-page document detailing the independent investigation into warrantless police searches in May at a subsidized housing apartment complex.

The city's denial of the Times-Call's request for the report under the Colorado Open Records Act is the second within a week, following officials' refusal to release documents related to a harassment investigation among City Council members.

Results of a Weld County sheriff's investigation conducted at the request of Longmont officials released Friday revealed that the use of police dogs in warrantless drug searches of units at the Longmont Housing Authority's The Suites complex wa not consistent with the police department's standards.

Officials including Public Safety Chief Mike Butler, rather than releasing the findings, summarized the report in a news release and video saying that police "have already taken corrective actions to ensure that this never happens again."

The news release also said that the police's "policies, procedures, training and practices are all in place and appropriate" and they are looking for opportunities to improve.

The Times-Call also requested the full report from the Weld County Sheriff's Office about its investigation into the searches at the The Suites and any related materials, including any communications from the city to City Council members.

Assistant City Attorney Teresa Tate responded Monday afternoon in an email saying that the city would not release the report connected with The Suites, where residents alleged units were searched in May and were going to be searched again in June.

"The request is denied at this time pursuant to section 24-72-305(5), C.R.S., because the custodian has determined that disclosure would be contrary to the public interest and the records are that of a criminal justice investigatory file involving an ongoing investigation," Tate said.

She later said, in response to why it's considered an ongoing investigation, that Longmont's Public Safety Department has initiated its own internal administrative review.

"This internal administrative review will be examined by a panel of Longmont residents on Longmont's citizens' review panel, among others," she said. "After we have completed our process, we will take any additional corrective actions, if necessary, in whatever form most appropriate."

Additionally, the Longmont Housing Authority is working with attorney David Herrera to conduct its own internal investigation for the board to present, possibly on Tuesday.

Ray Appling, a resident at The Suites who first shed light on the issue, said she is pleased with the conclusion of the investigation.

She came forward to media concerned about a notice posted to her door that police dogs would be accompanying property managers in unit searches, and that she was not told that she could opt out.

"While I have the greatest respect for the difficult job that the Longmont Police Department does, sometimes poor choices are made even with the best of intentions," she said in an email. "I am sure they felt like they were doing a public good by going along with Longmont Housing Authority's idea to search apartments for drugs."

She said the police were wrong in their approach and should have known better than to violate the Fourth Amendment.

"Going forward," she continued, "I hope that the outcome of this investigation not only enforces a need for police education about citizens' rights, but fosters more empathy for the men and women they encounter while on duty. Those who live at The Suites are no different than the police officers who protect and serve us. We are all Americans."

Amelia Arvesen: 303-684-5212, arvesena@times-call.com or twitter.com/ameliaarvesen

Continued here:
Longmont says release of report on warrantless police searches would be 'contrary to the public interest' - Longmont Times-Call

The Obama administration was on track to come up with an estimate of how many Americans information is snared by the governments foreign surveillance then the Trump administration took over and things got bogged down.

Now that has turned into a significant hiccup as the intelligence community asks Congress to renew those surveillance powers before they expire at the end of the year.

Some powerful members of Congress have demanded that the Trump administration restart efforts to come up with an estimate, saying Americans deserve to know who, exactly, is being caught up in the U.S. dragnet on electronic communications.

Without it, some of them say, it could be tough to continue the surveillance programs or at least will require some serious restrictions.

Congress must reauthorize the program, but knowing the scope of incidental collection will help us determine what, if any, additional privacy protections are needed to ensure we honor the Fourth Amendment, said Rep. F. James Sensenbrenner Jr., a Wisconsin Republican who has been at the forefront of these issues since writing the original Patriot Act in 2001. If the administration does not disclose the scope of the intrusion, Congress should assume the worst and pursue more restrictive protections for Americans data.

The issue stems from intelligence gathered under Section 702 of the Foreign Intelligence Surveillance Act, which allows the government to collect information from foreign sources. No American, and no person inside the U.S., is to be targeted.

But if a foreign target is talking to an American, those communications can be collected and in some cases the American can be unmasked, meaning their name is attached to communications.

That happened late last year with Michael Flynn, who at the time was a top security adviser to candidate Donald Trump. His communications with a Russian official were unmasked, then somehow leaked, in a way that embarrassed Mr. Trump.

A number of members of Congress want to know how many more Americans are in Mr. Flynns situation, with their communications snared in what the government calls incidental collection.

Civil rights advocates said the Obama administration was close to producing an estimate, having worked through a number of objections and hurdles.

We had gotten past these arguments, said Elizabeth Goitein, co-director at the Brennan Center for Justice.

But when Mr. Trumps team took over, that progress reversed.

New Director of National Intelligence Daniel Coats, a former Republican senator from Indiana, said he looked at the issue, talked it through with the National Security Agency and concluded it was impossible to follow through.

I went out there. I talked to them. They went through the technical details. There were extensive efforts on the part of, I learned, on the parts of NSA to try to get you an appropriate answer. We were not able to do that, he told Congress in a June hearing.

He said working on an estimate would siphon personnel from focusing on hostile foreign countries. He also said trying to figure out a number could mean unmasking more Americans, which would raise privacy concerns.

Timothy Barrett, a spokesman from ODNI, said analysts had been working before and after Mr. Trumps inauguration to come up with a plan to get a number.

In each instance, they were unable to do so, he said.

Critics say the Obama administration seemed willing, and they are not sure what has changed substantively.

Neema Singh Guliani, legislative counsel with the American Civil Liberties Union, said the intelligence agencies are thumbing their nose at Congress.

Its that [they] dont want to provide this number, and the change in leadership has affected that, she said.

Rep. Zoe Lofgren, a California Democrat on the House Judiciary Committee, said Congress deserves the answer.

We have gotten stonewalled now on a bipartisan basis, she said. We were on the verge at the end of December with the old administration with getting the information, which as legislators were entitled to get.

A Republican House Judiciary Committee aide told The Washington Times that the committee is continuing to work with the intelligence agencies to try to come up with another way for lawmakers to get a picture of the scope of the surveillance.

The issue seems to be a bigger hurdle for the House, where top members on both sides of the aisle are demanding answers, than the Senate.

The top Democrat on the Senate Judiciary Committee, Sen. Dianne Feinstein of California, said the estimate would be good to know but isnt necessarily key to the debate on reauthorization.

The House-Senate divide has played out in the past. The last time provisions of the Patriot Act were due for renewal, the House demanded a major rewrite, while senators were more inclined to give the intelligence community a free hand.

In the end, the House largely prevailed by using the looming expiration as a bargaining chip.

Without changes, the powers would have expired altogether, so faced with that choice, intelligence officials and senators accepted more restrictions rather than lose access to the information altogether.

Read the original:
Efforts to estimate scope of FISA intrusion on Americans halts under Trump administration - Washington Times

Zoltan Istvan is a futurist, transhumanist, author of The Transhumanist Wager, and a Libertarian candidate for California Governor.

The constant onslaught of new technology is making our lives more public and trackable than ever, which understandably scares a lot of people. Part of the dilemma is how we interpret the right to privacy using centuries-old ideals handed down to us by our forbearers. I think the 21st century idea of privacylike so many other taken-for-granted conceptsmay need a revamp.

When James Madison wrote the Fourth Amendmentwhich helped legally establish US privacy ideals and protection from unreasonable search and seizurehe surely wasn't imagining Elon Musk's neural lace, artificial intelligence, the internet, or virtual reality. Madison wanted to make sure government couldn't antagonize its citizens and overstep its governmental authority, as monarchies and the Church had done for centuries in Europe.

For many decades, the Fourth Amendment has mostly done its job. But privacy concerns in the 21st century go way beyond search and seizure issues: Giant private companies like Google, Apple, and Facebook are changing our sense of privacy in ways the government never could. And many of us have plans to continue to use more new tech; one day, many of us will use neural prosthetics and brain implants. These brain-to-machine interfaces will likely eventually lead to the hive mind, where everyone can know each other's precise whereabouts and thoughts at all times, because we will all be connected to each other through the cloud. Privacy, broadly thought of as essential to a democratic society, might disappear.

The key is to make sure government is engulfed by ubiquitous transparency too.

"While privacy has long been considered a fundamental right, it has never been an inherent right," Jeremy Rifkin, an American economic and social theorist, wrote in The Zero Marginal Cost Society. "Indeed, for all of human history, until the modern era, life was lived more or less publicly, as befits most species on Earth."

The question of whether privacy needs to change is really a question of functionality. Is privacy actually useful for individuals or for society? Does having privacy make humanity better off? Does privacy raise the standard of living for the average person?

In some ways, these questions are futile. Technological innovation is already calling the shots, and considering the sheer amount of new tech being bought and used, most people seem content with the more public, transparent world it's ushering in. Hundreds of millions of people willingly use devices and tech that can monitor them, including personal home assistants, credit cards, smartphones, and even pacemakers (in Ohio, a suspect's own pacemaker data will be used in the trial against him.) Additionally, cameras in cities are ubiquitous; tens of thousands of fixed cameras are recording every second of the day, making a walk outside one's own home a trackable affair. Even my new car knows where I'm at and calls me on the car intercom if it feels it's been hit or something suspicious is happening.

Because of all this, in the not so distant futureperhaps as little as 15 yearsI imagine a society where everybody can see generally where anyone else is at any moment. Many companies already have some of this ability through the tech we own, but it's not in the public's hands yet to control.

Massive openness must become a two-way street.

For many, this constant state of being monitored is concerning. But consider that much of our technology can also look right back into the government's world with our own spying devices and software. It turns out Big Brother isn't so big if you're able to track his every move.

The key with such a reality is to make sure government is engulfed by ubiquitous transparency too. Why shouldn't our government officials be required to be totally visible to us all, since they've chosen public careers? Why shouldn't we always know what a police officer is saying or doing, or be able to see not only when our elected Senator meets with lobbyists, but what they say to them?

For better or worse, we can already see the beginnings of an era of in which nothing is private: WikiLeaks has its own transparency problems and has a scattershot record of releasing documents that appear to be politically motivated, but nonetheless has exposed countless political emails, military wires, and intel documents that otherwise would have remained private or classified forever. There is an ongoing battle about whether police body camera footage should be public record. Politicians and police are being videotaped by civilians with cell phones, drones, and planes.

But it's not just government that's a worry. It's also important that people can track companies, like Google, Apple, and Facebook that create much of the software that tracks individuals and the public. This is easier said than done, but a vibrant start-up culture and open-source technology is the antidote. There will always be people and hackers that insist on tracking the trackers, and they will also lead the entrepreneurial crusade to keep big business in check with new ways of monitoring their behavior. There are people hacking and cracking big tech's products to see what their capabilities are and to uncover surreptitious surveillance and security vulnerabilities. This spirit must extend to monitoring all of big tech's activities. Massive openness must become a two-way street.

And I'm hopeful it will, if disappearing privacy trends continue their trajectory, and if technology continues to connect us omnipresently (remember the hive mind?). We will eventually come to a moment in which all communications and movements are public by default.

Instead of putting people in jail, we can track them with drones until their sentence is up

In such a world, everyone will be forced to be more honest, especially Washington. No more backdoor special interest groups feeding money to our lawmakers for favors. And there would be fewer incidents like Governor Chris Christie believing he can shut down public beaches and then use them himself without anyone finding out. The recent viral phototaken by a plane overheadof him bathing on a beach he personally closed is a strong example of why a non-private society has merit.

If no one can hide, then no one can do anything wrong without someone else knowing. That may allow a better, more efficient society with more liberties than the protection privacy accomplishes.

This type of future, whether through cameras, cell phone tracking, drones, implants, and a myriad of other tech could literally shape up America, quickly stopping much crime. Prisons would eventually likely mostly empty, and dangerous neighborhoods would clean upinstead of putting people in jail, we can track them with drones until their sentence is up. Our internet of things devices will call the cops when domestic violence disputes arrive (it was widely reportedbut not confirmedthat a smarthome device called the police when a man was allegedly brandishing a gun and beating his girlfriend. Such cases will eventually become commonplace.)

A society lacking privacy would have plenty of liberty-creating phenomena too, likely ushering in an era similar to the 60s where experimental drugs, sex, and artistic creation thrived. Openness, like the vast internet itself, is a facilitator of freedom and personal liberties. A less private society means a more liberal one where unorthodox individuals and visionariesall who can no longer be pushed behind closed doorswill be accepted for who or what they are.

Like the Heisenberg principle, observation, changes reality. So does a lack of walls between you and others. A radical future like this would bring an era of freedom and responsibility back to humanity and the individual. We are approaching an era where the benefits of a society that is far more open and less private will lead to a safer, diverse, more empathetic world. We should be cautious, but not afraid.

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Liberty Might Be Better Served by Doing Away with Privacy - Motherboard