The Third Party Doctrine is ridiculous. Law enforcement and intelligence agencies routinely exploit this loophole to warrantlessly access all sorts of data because of the stupid assertion that anything you “voluntarily” turn over to a third party carries no expectation of privacy. The agencies blow right past the reality of the situation: that any “voluntary” exchange of personal data for services is anything but voluntary. Service providers won’t provide you with an internet connection or cell phone service without collecting massive amounts of usage data. Hotels and motels won’t rent you a room unless you tell them who you are and provide documentation to back up your claims.
So, it’s stupid all over and no one’s in any hurry to fix it because drugs need to be warred against and terrorists must be handcrafted by FBI undercover agents and the rest of whatever. The courts have generally refused to stretch the Fourth Amendment to cover the data created by these involuntary exchanges. That’s a problem and one that is only very slowly being addressed.
Motel 6 has just decided to make it worse. While warrantless access to motel records is being challenged in the Supreme Court, the chain has decided to preemptively strip away any privacy expectations that may result from court rulings and just hand it all over to law enforcement because sometimes criminals stay in motel rooms.
Tag: FBI
Five Disturbing Things You Didn’t Know About Forensic “Science”
Last week, The Washington Post revealed that in 268 trials dating back to 1972, 26 out of 28 examiners within the FBI Laboratory’s microscopic hair comparison unit “overstated forensic matches in a way that favored prosecutors in more than 95 percent” of the cases. These included cases where 14 people have since been either executed or died in prison.
The hair analysis review — the largest-ever post-conviction review of questionable forensic evidence by the FBI — has been ongoing since 2012. The review is a joint effort by the FBI, Innocence Project and the National Association of Criminal Defense Lawyers. The preliminary results announced last week represent just a small percentage of the nearly 3,000 criminal cases in which the FBI hair examiners may have provided analysis. Of the 329 DNA exonerations to date, 74 involved flawed hair evidence analysis.
While these revelations are certainly disturbing — and the implications alarming — the reality is that they represent the tip of the iceberg when it comes to flawed forensics.
In a landmark 2009 report, the National Academy of Sciences concluded that, aside from DNA, there was little, if any, meaningful scientific underpinning to many of the forensic disciplines. “With the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” reads the report.
There is one thing that all troubling forensic techniques have in common: They’re all based on the idea that patterns, or impressions, are unique and can be matched to the thing, or person, who made them. But the validity of this premise has not been subjected to rigorous scientific inquiry. “The forensic science community has had little opportunity to pursue or become proficient in the research that is needed to support what it does,” the NAS report said.
Nonetheless, courts routinely allow forensic practitioners to testify in front of jurors, anointing them “experts” in these pattern-matching fields — together dubbed forensic “sciences” despite the lack of evidence to support that — based only on their individual, practical experience. These witnesses, who are largely presented as learned and unbiased arbiters of truth, can hold great sway with jurors whose expectations are often that real life mimics the television crime lab or police procedural.
But that is not the case, as the first results from the FBI hair evidence review clearly show. And given the conclusions of the NAS report, future results are not likely to improve. What’s more, if other pattern-matching disciplines were subjected to the same scrutiny as hair analysis, there is no reason to think the results would be any better. For some disciplines the results could even be worse.
Report: ‘Nearly Every’ FBI Forensics Expert Gave Flawed Testimony In ‘Almost All Trials’ Over A 20-Year Period
The FBI seems to be more interested in securing convictions than finding the truth. An investigation into questions about the agency’s hair analysis commenced in 1996, but years of foot dragging by the FBI means the full truth has only come to light over the past couple of years. What’s detailed in a report compiled by the National Association of Criminal Defense Lawyers and The Innocence Project is an almost surreally callous drive for sucessful prosecutions that potentially put dozens of innocent people behind bars.
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far…
United Airlines Stops Researcher Who Tweeted about Airplane Network Security from Boarding Flight to Security Conferences
Our client, Chris Roberts, a founder of the security intelligence firm One World Labs, found himself detained by the FBI earlier this week after tweeting about airplane network security during a United Airlines flight. When Roberts landed in Syracuse, he was questioned by the FBI, which ultimately seized a number of his electronic devices. EFF attorneys now represent Roberts, and we’re working to get his devices back promptly. But unfortunately last week’s tweet and FBI action isn’t the end of the story.
Roberts was back at the airport on Saturday evening, headed to San Francisco to attend two high-profile security conferences, the RSA Conference, where he is scheduled to present on Thursday, and BSides SF. After Roberts retrieved his boarding pass, made his way through the TSA checkpoint and reached the gate, United corporate security personnel stopped him from boarding the plane. Roberts was told to expect a letter explaining the reasons for not being allowed to travel on United. Thankfully, Roberts was able to book a last-minute flight on another airline and has now landed safely in San Francisco.
Nevertheless, United’s refusal to allow Roberts to fly is both disappointing and confusing. As a member of the security research community, his job is to identify vulnerabilities in networks so that they can be fixed. Indeed, he was headed to RSA speak about security vulnerabilities in a talk called “Security Hopscotch” when attempting to board the United flight.
EFF has long been concerned that kneejerk responses to legitimate researchers pointing out security flaws can create a chilling effect in the infosec community. EFF’s Coders’ Rights Project is intended to provide counseling and legal representation to individuals facing legal threats, which is why we’re glad to represent Chris Roberts. However, we’d also like to see companies recognize that researchers who identify problems with their products in order to have them fixed are their allies. It would avoid a whole lot of trouble for researchers and make us all more secure.
FBI can’t cut Internet and pose as cable guy to search property, judge says
A federal judge issued a stern rebuke Friday to the Federal Bureau of Investigation’s method for breaking up an illegal online betting ring. The Las Vegas court frowned on the FBI’s ruse of disconnecting Internet access to $25,000-per-night villas at Caesar’s Palace Hotel and Casino. FBI agents posed as the cable guy and secretly searched the premises.
The government claimed the search was legal because the suspects invited the agents into the room to fix the Internet. US District Judge Andrew P. Gordon wasn’t buying it. He ruled that if the government could get away with such tactics like those they used to nab gambling kingpin Paul Phua and some of his associates, then the government would have carte blanche power to search just about any property.
“Permitting the government to create the need for the occupant to invite a third party into his or her home would effectively allow the government to conduct warrantless searches of the vast majority of residents and hotel rooms in America,” Gordon wrote in throwing out evidence the agents collected. “Authorities would need only to disrupt phone, Internet, cable, or other ‘non-essential’ service and then pose as technicians to gain warrantless entry to the vast majority of homes, hotel rooms, and similarly protected premises across America.”
UAE Gave $1 Million to NYC Police Foundation; Money Aided ‘Investigations’
The New York City Police Foundation received a $1 million donation from the government of the United Arab Emirates, according to 2012 tax records, the same amount the foundation transferred to the NYPD Intelligence Division’s International Liaison Program that year, according to documents obtained by The Intercept.
A 2012 Schedule A document filed by the New York City Police Foundation showed a list of its largest donors, which included several major financial institutions such as JPMorgan Chase and Barclays Capital — but also a line item for the “Embassy of the United Arab Emirates.” The Intercept obtained a copy of the Schedule A document, which is not intended for public disclosure and only shows donors above the threshold of donating $1 million over four years.
Conspicuously, while the financial institutions are listed as donors on the Police Foundation website, the UAE is absent despite being one of the largest contributors listed that year with its $1 million contribution.
Publicly disclosed tax documents filed in the same year show a $1 million cash grant from the foundation to the NYPD Intelligence Division. The purpose of the grant is to provide assistance to the NYPD International Liaison Program, which “enables the NYPD to station detectives throughout the world to work with local law enforcement on terrorism related incidents,” the foundation’s 2012 tax disclosures state.
But the foundation denies the contribution was directed to the Intelligence Division. “The gift was an unrestricted gift to the General Fund. No such donation funded the International Liaison Program,” a spokesperson for the foundation told The Intercept.
When asked for further details, the spokesperson responded, “The gift was directed to upgrade NYPD equipment and facilities used to aid in criminal investigations throughout New York City.”
The foundation refused to provide information about which “criminal investigations” or equipment upgrades were funded by the UAE.
The embassy of the United Arab Emirates declined to comment about the $1 million contribution, which has not been previously reported. A February 2013 Washington Post article listed the Police Foundation as one of several recipients of funding from the UAE, but did not specify an amount, or the source of the information.
Strikingly little is known about the intended use of the $1 million. The Police Foundation never filed a Foreign Agent Registration Act (FARA) disclosure, a federal disclosure required from individuals and organizations (usually law firms and consultants) who work on behalf of a foreign country or political party, or any other public acknowledgement of the UAE embassy’s contribution.
A 2013 report by the Brennan Center documented the role the NYC Police Foundation plays in funding the Intelligence Division’s overseas operations. “Funding for [NYPD] counterterrorism operations comes not only from the city, state, and federal governments, but also from two private foundations,” the report said. “The New York City Police Foundation pays for the NYPD’s overseas intelligence operations, which span 11 locations around the world.”
The NYPD has had a presence in Abu Dhabi since at least 2009. In 2012, then-Commissioner Ray Kelly travelled to the UAE to sign an information-sharing agreement between the country and the department. At the time of the trip, it was disclosed that the memorandum of understanding would “[allow] for the exchange of ideas and training methods” between the NYPD and the UAE.
For its part, the UAE said in a statement released at the time that the agreement would entail “the exchange of security information as is permitted by laws” and allow both parties to “achieve general security.”
While the Liaison Program is notoriously opaque, comments by Kelly at a 2012 Carnegie Foundation event gave some insight into its operation: “[The program] has been very helpful in a variety of ways — again, funded by the Police Foundation. We are not using tax levy funds to pay their expenses. Their expenses are paid by the Foundation”.
Alternatives to the FBI’s Manufacturing of Terrorists
The experience with another case can be taken to suggest that there could be an alternative, and far less costly, approach to dealing with would-be terrorists, one that might generally (but not always) be effective at stopping them without actually having to jail them.
It involves a hothead in Virginia who ranted about jihad on Facebook, bragging about how “we dropped the twin towers.” He then told a correspondent in New Orleans that he was going to bomb the Washington, D.C. Metro the next day. Not wanting to take any chances and not having the time to insinuate an informant, the FBI arrested him. Not surprisingly, they found no bomb materials in his possession. Since irresponsible bloviating is not illegal (if it were, Washington would quickly become severely underpopulated), the police could only charge him with a minor crime — making an interstate threat. He received only a good scare, a penalty of time served and two years of supervised release.
That approach seems to have worked: the guy seems never to have been heard from again. It resembles the Secret Service’s response when they get a tip that someone has ranted about killing the president. They do not insinuate an encouraging informant into the ranter’s company to eventually offer crucial, if bogus, facilitating assistance to the assassination plot. Instead, they pay the person a Meaningful Visit and find that this works rather well as a dissuasion device. Also, in the event of a presidential trip to the ranter’s vicinity, the ranter is visited again. It seems entirely possible that this approach could productively be applied more widely in terrorism cases. Ranting about killing the president may be about as predictive of violent action as ranting about the virtues of terrorism to deal with a political grievance. The terrorism cases are populated by many such ranters — indeed, tips about their railing have frequently led to FBI involvement. It seems likely, as apparently happened in the Metro case, that the ranter could often be productively deflected by an open visit from the police indicating that they are on to him. By contrast, sending in a paid operative to worm his way into the ranter’s confidence may have the opposite result, encouraging, even gulling, him toward violence.
Why Don’t Surveillance State Defenders Seem To Care That The Programs They Love Don’t Work?
There is a strong argument for ending these programs on the basis of their high cost and lack of effectiveness alone. But they actually do damage to our society. TSA agents participating in the behavioral detection program have claimed the program promotes racial profiling, and at least one inspector general report confirmed it. Victims unfairly caught up in the broader suspicious activity reporting programs have sued over the violations of their privacy. The Privacy and Civil Liberties Oversight Board concluded the telephone metadata program violated the Electronic Communications Privacy Act and raised serious constitutional concerns.
The Cybersecurity Information Sharing Act passed by Senate Intelligence Committee last week is yet another example of this phenomenon. Experts agree that the bill would do little, if anything, to reduce the large data breaches we’ve seen in recent years, which have been caused by bad cyber security practices rather than a lack of information about threats. If passed by the full Congress, it would further weaken electronic privacy laws and ultimately put our data at greater risk. The bill would add another layer of government surveillance on a U.S. tech industry that is already facing financial losses estimated at $180 billion as a result of the exposure of NSA’s aggressive collection programs.
Turns Out Feds Actually Tracked Most International Calls For Nearly A Decade Before 9/11 — Didn’t Stop The Attack
One of the big arguments trotted out repeatedly by surveillance state defenders concerning the NSA’s Section 215 program to collect records on all phone calls is that such a thing “would have prevented 9/11” if it had been in place at the time. Here’s former FBI boss Robert Mueller making just that argument right after the initial Snowden leaks. Here’s Dianne Feinstein making the argument that if we had that phone tracking program before September 11th, we could have stopped the attacks. And here’s former NSA top lawyer and still top NSA supporter Stewart Baker arguing that the program is necessary because the lack of such a program failed to stop 9/11.
Except, it turns out, the feds did have just such a program prior to 9/11 — run by the DEA. As you may recall, back in January it was revealed that the DEA had its own database of phone call metadata of nearly all calls from inside the US to foreign countries. Brad Heath at USA Today came out with a report yesterday that goes into much more detail on the program, showing that it dates back to at least 1992 — meaning that the feds almost certainly had the calls that Feinstein and Mueller pretended the government didn’t have prior to 9/11.
FBI would rather prosecutors drop cases than disclose stingray details
Not only is the FBI actively attempting to stop the public from knowing about stingrays, it has also forced local law enforcement agencies to stay quiet even in court and during public hearings, too.
An FBI agreement, published for the first time in unredacted form on Tuesday, clearly demonstrates the full extent of the agency’s attempt to quash public disclosure of information about stingrays. The most egregious example of this is language showing that the FBI would rather have a criminal case be dropped to protect secrecy surrounding the stingray.
Relatively little is known about how, exactly, stingrays, known more generically as cell-site simulators, are used by law enforcement agencies nationwide, although new documents have recently been released showing how they have been purchased and used in some limited instances. Worse still, cops have lied to courts about their use. Not only can stingrays be used to determine location by spoofing a cell tower, they can also be used to intercept calls and text messages. Typically, police deploy them without first obtaining a search warrant.