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Big Brother has hacked the Constitution.

It has been over nine years since Edward Snowden released the first documents exposing the extent of NSA spying to the world. Since then, the surveillance state has only gotten bigger.

I finally got around to reading Snowdens memoir, Permanent Record. I bought the book not long after it was released, but life took over and the book sat on the shelf all but forgotten until we recently moved. As I was unpacking, I thought, I really need to read this.

I was right.

The book was a poignant reminder of just how insidious and omnipotent the national surveillance state has become. And how a complete breakdown of the constitutional system supports it.

SPYING ON EVERYBODY

The Snowden revelations had a profound impact on the trajectory of my own work. In the ensuing years, surveillance became one of my primary policy areas. I was heavily involved in the Tenth Amendment Centers efforts to turn off the water to the NSA facility in Bluffdale, Utah. I spearheaded the TACs OffNow project to address warrantless surveillance more broadly. I contributed to the drafting of a local ordinance creating oversight and transparency for surveillance programs that passed in numerous cities. And I got involved in fighting a surveillance program in Lexington, Ky. That resulted in a multi-year lawsuit.

As you can imagine, in the course of this work, Ive read a great deal about surveillance. I dug deep into Snowdens documents and the reporting as he released them. Ive poured over hundreds of documents describing the ever-growing surveillance state. I even took an online course on surveillance law. So, I have a keen understanding of just how deep and powerful the national spy complex runs. But Snowdens simple description of one NSA program stunned me. It is the program that allows U.S. intelligence agencies to access information about you, me, and pretty much everybody.

The program that enables this access was called XKEYSCORE which is perhaps best understood as a search engine that lets an analyst search through all the records of your life. Imagine a kind of Google that instead of showing pages from the public internet returns results from your private email, your private chats, your private files, everything.

In documents released by Snowden, the NSA calls XKEYSCORE its widest-ranging tool used to search nearly everything a user does on the internet. In his memoir, Snowden called it the closest thing to science fiction Ive ever seen in science fact; an interface that allows you to type in pretty much anyones address, telephone number, or IP address, and then basically go through the recent history of their online activity.

In some cases, you could even play back recordings of their online sessions, so that the screen youd be looking at was their screen, whatever was on their desktop. You could read their emails, their browser history, their social media postings, everything.

Snowden goes on to describe how analysts with access to XKEYSCORE shared pictures of nudes they found on target computers.

I knew this was a thing. But Snowden put it in such stark, simple terms that I was floored by the scope of federal surveillance all over again.

Snowdens revelations shined a light on the NSAs unconstitutional overreach. It produced some outrage, but its almost certain that these surveillance programs continue today. And in all likelihood, surveillance has expanded with the advancement of technology over the ensuing years.

HACKING THE CONSTITUTION

As Snowden put it, the government has hacked the Constitution.

He describes a wholesale breakdown of the constitutional system that shredded the Fourth Amendment.

Had constitutional oversight mechanisms been functioning properly, this extremist interpretation of the Fourth Amendment effectively holding that the very act of using modern technologies is tantamount to a surrender of your privacy rights would have been rejected by Congress and the courts.

Reading Snowdens outline of the constitutional breakdown that supports the surveillance state, its glaringly clear that we cant count on the federal government to limit the power of the federal government. Every branch of the federal government shares culpability.

As Snowden points out, Congress willingly abandoned its supervisory role over the intelligence community. Meanwhile, the failure of the judicial branch was just as egregious. The FISA Court created to oversee foreign surveillance approved 99 percent of the surveillance requests brought before it, a rate more suggestive of a ministerial rubber stamp than a deliberative judicial process. But Snowden described the executive branch as the primary cause of the constitutional breach.

The presidents office, through the Justice Department, had committed the original sin of secretly issuing directives that authorized mass surveillance in the wake of 9/11. Executive overreach has only continued in the decades since, with administrations of both parties seeking to act unilaterally and establish policy directives that circumvent law policy directives that cannot be challenged, since their classification keeps them from being publicly known.

In effect, all three branches of the federal government failed deliberately and with coordination creating what Snowden called a culture of impunity.

It was time to face the fact that the IC (intelligence community) believed themselves above the law, and given how broken the process was, they were right. The IC had come to understand the rules rules of our system better than the people who had created it, and they used the knowledge to their advantage.

Theyd hacked the Constitution.

As I read Snowdens words some nine years later, I had to ask myself, What has changed.

The answer is nothing.

The Constitution remains hacked. The federal government still wont limit its own power. That means its up to us to rein in this surveillance menace. State HERE.

Tags: edward snowden, fourth-amendment, NSA, Privacy, Surveillance

Excerpt from:
Big Brother Has Hacked the Constitution - Tenth Amendment Center

A recent DEN column appeared to say that inferring a right to abortion under the United States Constitution is akin to conflating soup with cereal.

In so doing, the author seemed to implywithout using the phrasethat constitutional originalism is the correct way in which to interpret our nations foundational document. The column ended with the following paragraph:

Living constitutionalism does have practical advantagesbut practical advantages are not sufficient grounds for determining how we should interpret the text. Instead, practical advantages simply show that we can incorrectly interpret the constitution in ways that achieve (often important) social goals.

I, for one, would like to register my disagreement.

The (now, apparently, former) federal right to abortion did not just appear out of anywhere. It evolved from the landmark case of Griswold v. Connecticut, in which the Supreme Court recognized that a right to privacy lies in the penumbra (great word, right?) of the Constitutions Fourteenth Amendment.

The line of cases that derived from Griswold has protected everything from the right to marrybetween genders and racesto the right to use contraception. Originalists like Justices Alito and, head-scratchingly, Thomas would prefer that such rights were not protected by the Constitution (a document under which, originally, Thomas may have been three-fifths of a judge).

If courts did not view the Constitution as a living document, individuals would be subject to all sorts of government intrusions. For example, the Fourth Amendment only protects against warrantless searches of persons, houses, papers, and effects.

Your cell phone does not fall under any of these categories. Prior to 2014, in many states, a police officer could legally take your phone and look through its contents without a warrant. Fortunately, the Supreme Court handed down Riley v. California, which held that the Fourth Amendment protects the contents of cell phones.

Similarly, in 2018 the Court decided Carpenter v. United States, in which they held that law enforcement needs a warrant before they can use your cell phones location data to track you. Im pretty sure the founders didnt consider that when they drafted the Fourth Amendment. (Iwonder if being tracked by cops is something originalists particularly enjoy.)

Another inherent problem with originalism is pinning down just whose original intent were talking about.

Those from the 1780s who owned slaves, counted a male slave as three-fifths of a man (its right there in Article I, section 2), and denied the right to vote to women? Or maybe those from the 1860s, who ratified the Twelfth, Thirteenth, and Fourteenth Amendments, and outlawed slavery? Or those from 1971 who passed the Twenty-Sixth Amendment giving 18- year-olds the right to vote? Whats original?

The fact that the Constitution has been amended 26 timesten times by the founders, themselves!should be proof enough that its a living document and shouldnt subject to the blindered views of originalism. That the First Amendment covers our right to put these pixels out on the World Wide Webwhich is not a pressis further testament to the limitations of originalism.

Any pro-originalists who would like to respond to this column may do so by town crier or by posting a quilled vellum on the nearest sycamore tree.

Trent Jonas is an English graduate student. He can be reached at [emailprotected] or 217-581-2812.

Read more:
COLUMN: The right to abortion is not soup, or cereal - The Daily Eastern News

from the we-can-remember-where-you-were-wholesale dept

The Supreme Court may have extended constitutional protection to historical cell site location info, but thats not going to stop our public servants and the private companies that serve them from finding ways to elude the ramifications of the Carpenter decision.

Over the past couple of years, court documents and public records have exposed this law enforcement-adjacent business. (These brokers also sell data to private companies, but seem to prefer their government contracts.) Bypassing even questionable geofence warrants (ones that perform searches of areas for devices of interest, rather than targeting any specific suspect), government agencies are buying direct access to location data pulled from dozens of apps that collect this information while in use.

The EFF has obtained several documents detailing the offerings of Fog Data Science, yet another entrant in the data broker sweepstakes. Pulling information gleaned from over 100 public records requests, the EFF notes the company has (or has had) contracts with at least 18 law enforcement agencies, including some at the federal level.

Heres what the company does:

The company, Fog Data Science, has claimed inmarketing materialsthat it has billions of data points about over 250 million devices and that its data can be used to learn about where its subjects work, live, and associate. Fog sells access to this data via a web application, calledFog Reveal, that lets customers point and click to accessdetailed historiesof regular peoples lives. This panoptic surveillance apparatus is offered tostate highway patrols,local police departments, andcounty sheriffsacross the country forless than $10,000 per year.

And it appears the company (and some of its law enforcement customers) believe obtaining location data through Fog (which the company advertises as being capable of long-term tracking) does not implicate the Fourth Amendment. One of its communications with the California Highway Patrol contains this statement from a Fog representative one which states it has spoken to other law enforcement customers who believe the Carpenter decision has nothing to do with this particular location data source.

We havent done any work on Carpenter. We have had several clients view our solution through the lens of Carpenter, most recently was from a meeting I had with NJ State Police and NJ AGs Office. The attorneys in the meeting felt that since we are providing non PII [personally identifying info] data, held by third parties, Carpenter doesnt apply. As you know, in the Carpenter case, the FBI had his cell number and requested specific records pertaining to him. With our data, we have no way of linking signals back to a specific device or owner.

That legal theory can be described most charitably as untested. Maybe courts will find that layering third parties (the app sources and the data broker hawking the data) makes it too far removed from the source to make Carpenter applicable. Or maybe some courts will find its ultimately close enough to the CSLI-enabled tracking in the Carpenter case (since investigators will use this data to identify suspects and then can go back to the brokers to gather more data on the targeted device/device owner) that warrants are required.

Either way, it shows law enforcement is looking for solutions that dont require judicial oversight, and Fog Data Science is more than willing to be that solution.

And the company may claim in its Carpenter discussion it doesnt provide PII and therefore cannot perform location tracking, but it claims otherwise in its marketing for its Fog Reveal product.

Law enforcement can specify one or more devices theyve identified and a time range, and Fog Reveal will return a list of location signals associated with each device. Fogs materials describe this capability as providing a persons pattern of life, which allows authorities to identify bed downs, presumably meaning where people sleep, and other locations of interest.In other words, Fogs service allows police to track peoples movements over long periods of time.

Despite all the options the company offers (allegedly up to 15 billion location signals each day from 250 million devices a month), Fog Data seems to be having trouble holding onto its law enforcement customers.

Additionally,the records EFF reviewedshow that several of the agencies that worked with Fog have sincecanceled their subscriptions,andat least one saidthey were not sure if they ever used Fog to successfully solve a case.

Thats not to say that if Fog sucks at its job, that makes it ok. It doesnt. App users may opt into sharing data with apps, but theyre rarely aware app developers are sending this information on to data brokers, who are now basically forcing app users one step removed from the data broker to share their location data with government agencies.

The first breakdown in responsibility comes from app developers who sell this information to data brokers. The second breakdown comes from Fogs government customers, who havent been exactly open or honest about their frequent use of third-party brokers to obtain bulk data they cant legally acquire from cell service providers without a warrant.

Theres much, much more in the EFFs discussion of its findings from its public records haul, including suspected links to Venntel, another data broker with plenty of powerful government clients. And it shows packaging and analyzing app data to track people is still a growth business, one that wont see any slowdown until its either reined in by privacy legislation or courtroom precedent.

Filed Under: 4th amendment, data brokers, data sharing, law enforcementCompanies: fog data science

Original post:
Yet Another Data Broker Found To Give Massive Amounts Of Location Info To Law Enforcement - Techdirt

from the each-bullet-means-you're-even-freer-to-go dept

Consent can mean a lot of things when youre accosted by cops. Law enforcement officers tend to feel its always voluntary, even when youre sitting in an interrogation room for what the good cop refers to as a friendly chat meant to clear everything up.

Whenever a seizure is challenged, if cops didnt have the requisite reasonable suspicion or probable cause to support the stop, they and their lawyers will almost always claim the stop was consensual and the person now suing or trying to suppress evidence was free to go.

Ive witnessed a lot of really terrible government arguments while covering terrible police work for Techdirt. But this one [PDF], handled by the Sixth Circuit Appeals Court (following an appeal by the state), has to be the argument furthest disconnected from reality Ive seen yet. (h/t FourthAmendment.com)

The timeline leading the Fourth Amendment violation is pretty clear. There are recordings of the incident, which alone makes it an anomaly. From those recordings and testimony of all involved, the Sixth Circuit reconstructs the late evening welfare check that devolved into (police) violence.

Officers were sent to the home of Mark and Sherrie Campbell following two hangup calls to 911. The deputies did not activate their emergency lights once on the property but aimed their headlights at the front door. Deputy Fox knocked on the front door but did not state he was a law enforcement officer. Mark Campbell answered and asked the deputy through the closed door if the officer had a gun. This conversation (such as it were) continued for a few more seconds.

Mark Campbell then told the deputy he had one too (referring to gun possession). He then opened the door. Deputy Fox then turned back to the door and fired two shots through it. The other deputy (Christopher Austin) tripped and fell to the ground. Deputy Fox asked if Deputy Austin was OK and then turned and fired six more shots through the front door. All of this occurred within 30 seconds of the officers arrival.

While there are recordings, they dont clear anything up. The deputies saw something that could have been a gun, which possibly excuses the violent response.

The parties dispute what the officers saw when Mark began to open the door, and the video footage does not resolve the dispute. Mark says he may have had a cell phone in his hand, but not a gun. Both officers contend they thought Mark had a gun. However, there is evidence that on the evening of the incident, the officers did not know what, if anything, Mark was holding.

The evidence is this: no firearm was found on the property after the officers entered the residence. Also of note: while Mark Campbell was charged with two counts of aggravated assault on the officers, those charges were dismissed.

The couple sued, alleging Fourth Amendment violations stemming from the incident. And they won at the lower level, prompting the governments appeal, much of which hinged on the governments assertion that the whole thing was a consensual interaction that was only complicated by Marks statements and actions.

Oh hell no, says the Sixth Circuit, summing up the whole debacle in one devastating sentence. Whatever might apply to Mark and his Ive got one too statement alluding to a gun did not apply to the other person in the house, who was definitely held against her will by law enforcement until the situation was resolved.

In view of all the circumstances here, a reasonable person would not believe that he or she was free to leave a house while an officer repeatedly fired at the front door.

Its sad that it takes a court and not just the first level of the judicial system to state the obvious. No person would feel free to leave when several officers are present in the front yard. And they definitely would not feel free to end the interaction after an officer fires eight bullets through their front door.

Really just extremely obvious stuff. And yet, the court has to explain this to the willfully obtuse law enforcement officers who continued to claim no one was seized despite the officers in the yard and the bullets flying into the house. Whatever Mark Campbell did (including returning to the porch after the hail of gunfire) has no bearing on rights violation perpetrated on his wife.

It also makes no difference whether Fox knew Sherrie was also inside the home. We have explained that when an officer seizes one person by shooting at a car, for example, the officer seizes everyone in the car, even if the officer is unaware of the presence of passengers.

As for the claim the gunfire was justified because of Mark Campells statement about (alleged) gun possession, the Appeals Court says this cannot be resolved at this level. Mere gun possession is not a justification for police violence. Officers must clearly show their safety (or the safety of others) was at risk. Furthermore, despite Campbells statement (and officers testimony), no gun was recovered from the home.

This all seems amazingly clear. And yet, theres a dissenting opinion one that claims officers did not perform an unlawful seizure of Campbells wife, despite repeatedly firing through the front door of the house. Many arguments are raised by the dissent, but they all ignore the crucial central fact: no reasonable person would assume they were free to terminate an interaction with law enforcement that involved an officer firing their gun into the residence. Precedent isnt the issue. Its the reasonableness. And the officers arguments are anything but reasonable. Qualified immunity denied.

Filed Under: 4th amendment, 6th circuit, mark campbell, search, sherrie campbell

The rest is here:
Court: Yeah, No One's Going To Feel They're Free To Go When Cops Are Firing Bullets Through Their Front Door - Techdirt

My best friend. Always someone I could talk to. Our moral compass. Larger than life. Those are the words the Tennessee judiciary has used to describe their friend and colleague Judge John Everett Williams, who passed away unexpectedly on September 2 at the age of 68.

Judge Williams was the presiding judge of the Court of Criminal Appeals and his impact, much like his personality, was immeasurable. He took fashion and grooming guidance from one of his heroes, writer Mark Twain. His bow ties, seer sucker suits, and audacious color choices were a sight to behold. But it was not a show. His fashion choices paled in comparison to the heart and soul of the gentleman from Carroll County.

He was larger than life in every way, said Judge Tim Easter of the Court of Criminal Appeals. My wife was with me when I received the call and one of the first things she said was there are probably a hundred people that are going to say today I lost my best friend. I have spoken with people inside and outside the judiciary over the last few days, many have said that he was their best friend. That is just how he made you feel. He was so invested in people, the whole person. Something that drove him was to make sure everyone he knew was a whole, well-balanced person.

Even before he was the presiding judge of the 12-member court, Judge Williams was famous for calling court members just to check in. Not to follow-up on an opinion in process or to discuss a docket, but just to see how they were doing, chat about family, and provide the occasional pep talk.

I have known him as an attorney almost 40 years and we were colleagues on CCA for 22 years until my retirement, retired Judge Tommy Woodall said. We developed a deep, close friendship. He was as close a friend as I have. We talked almost daily about cases, life, a lot of things. I valued his ability to give me advice on all kinds of things personal and professional. He was always someone I could rely on. I feel like my safe haven is gone. I could go to him about anything. I could call him about anything. He is going to be missed by a lot of people.

When Judge Camille McMullen joined the Court of Criminal Appeals in 2008, she was new to the judiciary and the first African-American female to serve on a Tennessee appellate court.

He made sure I was welcomed, including just basic things, even though he was not the presiding judge. He actually showed up in my office in Memphis to make sure things were running smoothly. That is just the type of person he was, Judge McMullen said. His care and concern for me lasted throughout our friendship.

Over the years, the pair developed a close bond.

He was raised at a different time than I was. But, he made it a point to make sure that he connected with my generation, with me as a person who was different from him. To understand and meet me where I was, Judge McMullen said. I have never met anyone like that. He just became very special.

Judge Williams always went out of his way to welcome new members to the court.

He let me know immediately when I joined the CCA that my voice on this court was just as valuable and just as strong as the gray hairs on the court, Judge Easter said. I have tried to pass that message along when a new member comes on this court. The new judges voice is equally as valuable as judges who have been on the court for years. Judge Williams taught me that and I will pass that message along.

As a jurist, Judge Williams authored over 2,000 opinions in his nearly 25 years on the court. CCA judges sit as a panel of three, which means he likely was on the bench for over 6,000 cases. He was especially known as a strong supporter of the Fourth Amendment to the United States constitution.

The Fourth Amendment was his passion, Judge Easter said. He was dedicated to protecting the right of the people to be secure in their persons, and house, against unreasonable searches and seizures.

In a 2015 case when officers entered a private home without a search warrant after knocking and talking despite No Trespassing signs, Judge Williams wrote in his dissent If governments can use a single sign so effectively against citizens, why then can not citizens use a sign equally against governments? Whether the words are used by the government or a citizen, No Trespassing means no trespassing.

Judge McMullen pointed to the writing as a classic.

He was always concerned about how a case would impact people, Judge McMullen said. He had an incredible moral compass. He was the moral compass of our court and was a great person to bounce to discuss ideas. He never tried to push or impose, but he was a great ear when the court faced tough issues.

Also in 2015, he was highlighted in a Washington Post article on footnotes he included in recent cases that stated he believed the court should always use titles when referring to adult witnesses as a show of respect.

On the court, he was known for being respectful, methodical, and educational when expressing an opposing view on an opinion. In 2018, his colleagues elected him presiding judge, the first rural West Tennessee judge to hold the position in more than 25 years.

He was a larger than life individual and it is hard to fathom that he is no longer with us, said Judge Curwood Witt, who is the only current member of CCA to have served longer than Judge Williams. His service as presiding judge has been exemplary. He was well-suited for it. He took the role just before the pandemic hit, which brought about so many unusual and challenging issues. John Everett was up for it and he guided us through it very well. He is already terribly missed.

Over the years, Judge Williams served with almost 20 judges on the Court of Criminal Appeals, including three colleagues who would later serve on the Tennessee Supreme Court Chief Justice Roger Page, Justice Jeff Bivins and former Justice Gary Wade.

We went to rival high schools and the first time I heard his name was when he was running up and down a high school football field, Chief Justice Page said. We were young West Tennessee lawyers together and we joined the judiciary in the same year 1998, when I was elected to the trial bench and he was appointed to the Court of Criminal Appeals. This is a devastating loss for our Judicial Family. He served his community, his state, and the judiciary with endless compassion. Job well done, my friend.

In 1999, The Tennessee Supreme Court established the Tennessee Lawyer Assistance Program, a confidential assistance program for lawyers, judges and law students. Judge Williams was a natural fit for the strenuous task of listening, counseling, intervening, and referring. Touched by the tragic death of two individuals and the emotional and substance misuse of others close to him, he was willing to travel the state and share his regret in not being more proactive in identifying issues and offering assistance. He later served as chairperson for the organization, touching the lives of hundreds of Tennessee judges and attorneys when they were most in need.

In more recent years, Judge Williams relished in the role of doting grandfather. From boating trips to softball tournaments, he was quick to provide his friends with the latest updates and pictures. And, of course, there was magic. He was a longtime member of the International Brotherhood of Magicians, often performing for Carroll County students, colleagues, his granddaughters, and at the occasional judicial conference. He was an excellent storyteller and a self-proclaimed thespian, actively involved in the Dixie Carter Performing Arts and Academic Enrichment Center.

He was a Carroll County native and operated a law firm in the county for 17 years before joining the judiciary at the encouragement of his friend Judge Woodall, who made the transition about two years prior. In his hometown, he was Citizen of the Year; president of the bar association; and president of the Lions Club. If an organization the American Heart Association, the American Cancer Society, the American Red Cross, Habitat for Humanity needed a hand, Judge Williams was willing. He likely made a new friend in the process.

He would remind me that every day is not promised with the special people in your life so make sure you spend time where you need to, Judge McMullen said. He is already missed and he wont be replaced ever. When I last talked to him, he just called to make sure I was OK after a decision came out. He just wanted to make sure I was OK and that was his process. His last words to me were Camille, you are thinking with your head and you need to go ahead and act with your heart.

Information on arrangements can be found here.

To leave a remembrance, please click here.

Originally posted here:
Judiciary Remembers Judge John Everett Williams - Tennessee Administrative Office of the Courts