Right to Record, a website devoted to the legal aspects of recording police officers, has the scoop. A panel of the First Circuit Court of Appeals affirmed the right of citizens to openly record police officers.

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’” This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.

Read the whole thing. It provides a great discussion of the developing legal landscape, as well as some juicy details — like the fact that the attorney defending the statute for Massachusetts wrote her student note about how the Massachusetts wiretapping law is unconstitutional.

This decision is a big deal. The case comes from Massachusetts, one of two states (the other being Illinois) that continues to criminalize recording audio in public. It’s the latest in a string of victories against the Massachusetts wiretapping law that has become a useful tool for police who want to shield their actions from public scrutiny. A Massachusetts District Attorney recently refused to proceed with charges against a woman who recorded a vicious police beating, the D.A. declaring that police officers have no reasonable expectation of privacy while on duty and in public. Cop Block founders Pete Eyre and Adam Mueller were just acquitted on felony wiretapping charges for openly recording their encounter with police officers Massachusetts.

Moving on to the other holdout, Illinois, a woman who surreptitiously recorded Chicago Police Internal Affairs officers trying to persuade her not to file a sexual harassment complaint against police officers was acquitted of felony wiretapping charges. All of this sets the stage for the ACLU v. Alvarez, a lawsuit seeking to prevent future wiretapping charges against citizens who record on-duty police in public.

For more Cato work on the right to record police, take a look at this video and this post on Anthony Graber’s victory over abuse of the Maryland wiretapping statute. Speaking of which, Right to Record provides a page on the Maryland wiretapping statute, supplying the decision in Graber’s case for anyone who faces similar charges in the future.

First Circuit Affirms Right to Record the Police is a post from Cato @ Liberty - Cato Institute Blog

The New York Times‘s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing.

This comes just three years after the last major revision of FBI manual, which empowered agents to employ a broad range of investigative techniques in exploratory “assessments” of citizens or domestic groups, even in the absence of allegations or evidence of wrongdoing, which are needed to open an “investigation.” The FBI assured Congress that it would conduct intensive training, and test agents to ensure that they understood the limits of the new authority—but the Inspector General found irregularities suggestive of widespread cheating on those tests.

Agents can already do quite a bit even without opening an “assessment”: They can consult the government’s own massive (and ever-growing) databases, or search the public Internet for “open source” intelligence. If, however, they want to start digging through state and local law enforcement records, or plumb the vast quantities of information held by commercial data aggregators like LexisNexis or Acxiom, they currently do have to open an assessment. Again, that doesn’t mean they’ve got to have evidence—or even an allegation—that their target is doing anything illegal, but it does mean they’ve got to create a paper trail and identify a legitimate purpose for their inquiries. That’s not much of a limitation, to be sure, but it does provide a strong deterrent to casual misuse of those databases for personal reasons. That paper trail means an agent who might be tempted to use government resources for personal ends—to check up on an ex or a new neighbor—has good reason to think twice.

Removing that check means there will be a lot more digging around in databases without any formal record of why. Even though most of those searches will be legitimate, that makes the abuses more likely to get lost in the crowd. Indeed, a series of reports by the Inspector General’s Office finding “widespread and serious misuse” of National Security Letters, noted that lax recordkeeping made it extremely difficult to accurately gauge the seriousness of the abuses or their true extent—and, of course, to hold the responsible parties accountable. Moreover, the most recent of those reports strongly suggests that agents engaged in illegal use of so-called “exigent letters” resisted the introduction of new records systems precisely because they knew (or at least suspected) their methods weren’t quite kosher.

The new rules will also permit agents to rifle through a person’s garbage when conducting an “assessment” of someone they’d like to recruit as an informant or mole. The reason, according to the Times, is that “they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others.” Not keen into being dragooned into FBI service? Hope you don’t have anything embarrassing in your dumpster! Physical surveillance squads can only be assigned to a target once, for a limited time, in the course of an assessment under the current rules—that limit, too, falls by the wayside in the revised DIOG.

The Bureau characterizes the latest round of changes as “tweaks” to the most recent revisions. That probably understates the significance of some of the changes, but one reason it’s worrying to see another bundle of revisions so soon after the last overhaul is precisely that it’s awfully easy to slip a big aggregate change under the radar by breaking it up into a series of “tweaks.”

We’ve seen such a move already with respect to National Security Letters, which enable access to a wide array of sensitive financial, phone, and Internet records without a court order—as long as the information is deemed relevant to an “authorized investigation.” When Congress massively expanded the scope of these tools under the USA Patriot Act, legislators understood that to mean full investigations, which must be based on “specific facts” suggesting that a crime is being committed or that a threat to national security exists. Just two years later, the Attorney General’s guidelines were quietly changed to permit the use of NSLs during “preliminary” investigations, which need not meet that standard. Soon, more than half of the NSLs issued each year were used for such preliminary inquiries (though they aren’t available for mere “assessments”… yet).

The FBI, of course, prefers to emphasize all the restrictions that remain in place. We’ll probably have to wait a year or two to see which of those get “tweaked” away next.

FBI’s New Guidelines Further Loosen Constraints on Monitoring is a post from Cato @ Liberty - Cato Institute Blog

My latest op-ed, now available at Politico, highlights the continued militarization of American police forces. I focus on the statements of officers involved in the fatal shooting of Marine combat veteran Jose Guerena.

After the SWAT team entered Guerena’s home, the supervisor left one or two “operators” with the body while the rest searched the house.

What did he mean by operator? Well, a police officer. But the term connotes something entirely different.

“Operator” is a term of art in the special operations community. Green Berets, SEALs and other special operations personnel often refer to themselves as operators. It’s a recognition of both the elite standards of their units and the hybrid nature of their duties — part soldier, part spy, part diplomat. But importing operator terminology into domestic law enforcement is not a benign turn of the phrase.

Perceiving yourself as an operator plasters over the difference between a law enforcement officer serving a warrant and a commando in a war zone. The former Mirandizes, the latter vaporizes, as the saying goes — and as the recent Osama bin Laden raid vividly illustrated.

Language matters, and importing military terminology into peace officer lingo contributes to police militarization. There are plenty of alternative terms for SWAT officers that would carry elite connotations, such as “tactical officer,” as in the National Tactical Officers Association. Unfortunately, the NTOA website could use a good operator scrubbing (start here, here, and here).

Video of the Guerena raid:

The Guerena raid is posted over at the Raidmap, and Radley Balko provided an excellent write-up. Balko’s Overkill is essential reading on this topic.

Operator Disconnect is a post from Cato @ Liberty - Cato Institute Blog

High drama in Miami. Carlos Miller provides a good summary (H/T Radley):

Miami Beach police did their best to destroy a citizen video that shows them shooting a man to death in a hail of bullets Memorial Day.

First, police pointed their guns at the man who shot the video, according to a Miami Herald interview with the videographer.

Then they ordered the man and his girlfriend out the car and threw them down to the ground, yelling “you want to be fucking paparazzi?”

Then they snatched the cell phone from his hand and slammed it to the ground before stomping on it. Then they placed the smashed phone in the videographer’s back pocket as he was laying down on the ground.

And finally, they took him to a mobile command center where they snapped his photo and demanded the phone again, then took him to police headquarters where they conducted a recorded interview with him before releasing him.

But what they didn’t know was that Narces Benoit had removed the SIM card and hid it in his mouth, which means the video survived.

Here is the video:

There’s more at the Miami Herald. For more on this trend, check out Reason’s coverage of the war on cameras and this Cato forum with the Maryland prosecutor who tried to prosecute a motorcyclist for recording a state police officer that performed a traffic stop at gunpoint. Cato’s video Cops on Camera discusses the accountability that citizen journalism can bring to law enforcement.

The War on Cameras Continues is a post from Cato @ Liberty - Cato Institute Blog

The police in Austin, Texas will be testing nine different body-mounted cameras over the next 30 to 60 days. This is a positive development for both officers and citizens. It’s good legal defense for officers against false claims of excessive force and a training tool to show trainees best practices. It’s good incentive for officers to act within the bounds of the law. Video also makes for solid evidence in court. Many jurisdictions require law enforcement officers to record confessions and/or interrogations. Steve Chapman argued last year that the FBI should adopt such a policy.

Recording should be mandatory in SWAT raids, the most intense law enforcement encounters. I make the case for recording SWAT operations with Radley Balko and Clark Neily in this video:

Cop-Cams on the Rise is a post from Cato @ Liberty - Cato Institute Blog

The L.A. Times has an article highlighting the twentieth anniversary of the Rodney King beating and how video of that event introduced the LAPD to modern citizen journalism.

Today, things are far different and the tape that so tainted the LAPD has a clear legacy in how officers think about their jobs. Police now work in a YouTube world in which cellphones double as cameras, news helicopters transmit close-up footage of unfolding police pursuits, and surveillance cameras capture arrests or shootings. Police officials are increasingly recording their officers. Compared to the cops who beat King, officers these days hit the streets with a new reality ingrained in their minds: Someone is always watching.

“Early on in their training, I always tell them, ‘I don’t care if you’re in a bathroom taking care of your personal business…. Whatever you do, assume it will be caught on video,’ ” said Sgt. Heather Fungaroli, who supervises recruits at the LAPD’s academy. “We tell them if they’re doing the right thing then they have no reason to worry.”

That’s progress, and as I’ve said before, a video camera is an honest cop’s best friend.

There’s still plenty of room for improvement. The LAPD paid $1.7 million to a news camera operator injured by its officers at the 2007 May Day melee. LAPD officers have also been caught on camera assaulting a bicyclist and illegally detaining a man for taking photographs on a public sidewalk. You can track police intimidation of citizen journalists at Cop Block’s War on Cameras interactive map, patterned after Cato’s own Raidmap.

Here is the Cato video, Cops on Camera:

For more on cops and cameras, check out the event Cato hosted last year and Radley Balko’s feature at Reason, “The War on Cameras.”

Cops on Camera: LAPD Edition is a post from Cato @ Liberty - Cato Institute Blog

The DEA and San Francisco Police Department conducted a really wrong door raid:

The SFPD and DEA found no piles of marijuana money at 243 Diamond St., one of six addresses raided simultaneously in San Francisco that morning. Instead, they found Clark Freshman, who rents the penthouse at the two-unit building. Freshman, a UC Hastings law professor and the main consultant to the television show Lie to Me, was put into handcuffs while in his bathrobe as agents searched, despite Freshman’s insistence that they had the wrong place and were breaking the law…

Soon they may be called defendants in a lawsuit. A furious Freshman has pledged to sue the DEA and the SFPD for unlawful search and seizure of his home…

[Officer] Biggs describes 243 Diamond as a “two-story, one-unit” building in the warrant. There’s no mention of Freshman or Larizadeh’s son-in-law or seven-months pregnant daughter who were detained in the downstairs unit that morning. But property records — and a quick visual scan of the property — reveal it to be a three-story, two-unit building. That mistake alone may be enough to invalidate the search warrant.

Read the whole thing. Professor Freshman’s closing quote is priceless. (H/T Uncle)

Really Wrong Door Raid is a post from Cato @ Liberty - Cato Institute Blog

The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.

Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.

As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:

In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.

After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.

The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.

Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.

So, here’s a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress’ power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow’s aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That’s a tool first responders can use.

Miranda Ain’t Broke is a post from Cato @ Liberty - Cato Institute Blog

Building on Ilya Shapiro’s post on the sealed grand jury proceedings against Siobhan Reynolds, founder of the Pain Relief Network, and the sealed Reason Foundation/Institute for Justice amicus brief, here is some more background on the Wichita witch hunt:

The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynolds’s advocacy. The presiding judge denied the gag order.

When the judge denied Treadway’s gag order, Treadway instead subpoenaed Reynolds for records related to Reynolds’s PR campaign against the prosecution of the Scheiders. Ms. Reynolds resisted the subpoena and tried to challenge it in court, but the $200 daily fine intended to ensure compliance with the subpoena has left Reynolds pretty much bankrupt.

This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Façade: How the Grand Jury Was Captured by Government.

Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build-up from years of untreated pain.

Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!’” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).

More on the Siobhan Reynolds Case is a post from Cato @ Liberty - Cato Institute Blog

UPI is reporting that the Taser Corporation is selling cameras that mount on their stun guns.

The cameras automatically turn on when the Taser is removed from its holster and its safety device is released.

“Video is going to help the officer,” said Cmdr. Steve Wilkinson, internal affairs investigator for the West Melbourne (Fla.) Police Department. “And if you don’t record it, the kid down the street with a cellphone is going to use it.”

As I wrote in this post and said in this video and this forum, this is the future of law enforcement. Taser-mounted (or handgun-mounted) cameras can show the circumstances leading up to a use of force and prevent lawsuits where force was justified. The camera’s presence on a weapon, however, can provide officers an incentive to present the taser or handgun sooner rather than later. Departments would be better served with head-mounted cameras, which are also likely to capture more of the events before an officer employs physical force. Expect more of this as these devices become cheaper (and tamper-proof).

Regardless of the form, use of recording technology to provide more transparency and accountability in law enforcement is a good thing.

Taser Cameras is a post from Cato @ Liberty - Cato Institute Blog

Cato Fellow Radley Balko highlighted the trend toward heavy-handed police practices in Overkill: The Rise of Paramilitary Police Raids in America. Radley continues to chronicle police abuses at The Agitator and Reason. Recent examples of police excesses include the unnecessary death of seven-year old Aiyana Jones in Detroit and this raid on an innocent elderly couple in Chicago (immigrants who fled the Soviet Union because of oppression).

One of the fruits of Radley’s research was the Raidmap, a Google map application that allows you to see the scope of this epidemic of “isolated incidents.” You can also sort botched raids by category: death of an innocent, raid on an innocent suspect, death or injury of an officer, death of a nonviolent offender, unnecessary raids on doctors and sick people, and other examples of paramilitary police excess.

View Original Map and Database

Now you can embed the Raidmap on your website or blog as seen below. The code is on the Raidmap page.

Pass it on.

Embed the Raidmap is a post from Cato @ Liberty - Cato Institute Blog

Maryland Circuit Court Judge Emory A Pitt, Jr. has ruled that motorcyclist and Maryland Air National Guardsman Anthony Graber did not violate the Maryland wiretapping statute when he recorded his traffic stop. The wiretap law does prohibit the recording of audio where there is a “reasonable expectation of privacy,” but Judge Pitt found that a police officer performing a traffic stop has no such expectation of privacy.

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” the judge wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”

As I said in this op-ed, and as Clark Neily, Radley Balko and I pointed out in this video, Maryland police officers have used the “expectation of privacy” claim as a tool to deter anyone from recording on-duty police officers. In Anthony Graber’s case, a Maryland state trooper cut off Graber in an unmarked car and emerged from the driver’s side door in jeans and a gray pullover, gun drawn and badge not visible. It looked like a carjacking, and Graber was not charged for recording the encounter until he posted it on YouTube. The message to other Marylanders was clear: record the police, and you will face arrest and felony prosecution.

The prosecutor behind the case against Graber, Joseph Cassilly, spoke on a panel last week at Cato. He made clear that he disagreed with the structure of the Maryland wiretapping law, and was using the case to push the legislature toward a single-party consent wiretap statute. While I agree with a move to a single-party consent law, it is satisfying to see the charges against Anthony Graber reduced to the traffic violations that instigated the encounter in the first place.

Judge Dismisses Wiretapping Charges against Motorcyclist for Recording Traffic Stop is a post from Cato @ Liberty - Cato Institute Blog

The past six months have given us a number of police excesses caught on camera. Police officers savagely beat University of Maryland student John McKenna and filed false felony assault charges against him. Video of the event set the record straight. Prosecutors dropped the charges against McKenna, and four officers have been suspended and are facing state and federal investigations.

The McKenna case showed the value of video as an honest witness. Yet Maryland police officers continue to make the claim that the state wiretapping law forbids recording in public. I discuss this issue in a new Cato video, Cops on Camera, along with attorney Clark Neily of the Institute for Justice and Cato adjunct scholar Radley Balko.

We are hosting an event next Wednesday, September 22, on the right of citizens to record on-duty police, and the prosecutor in the high-profile Maryland wiretapping case against Anthony Graber will be on the panel. Registration available here.

Cops on Camera is a post from Cato @ Liberty - Cato Institute Blog

You may remember the case of Anthony Graber, the Maryland motorcyclist charged with violating the state’s wiretapping statute for recording his traffic stop and posting it on YouTube. I’ve said several times over the last few months that these charges are based on a misreading of the law; minus a “reasonable expectation of privacy,” recording an oral communication does not violate the wiretapping statute.

As it turns out, the Maryland Attorney General agrees.

The Maryland Attorney General has released an opinion advising a state legislator that, contrary to the claims of Harford County State’s Attorney Joseph Cassilly, a traffic stop is probably not an instance where a police officer can claim a reasonable expectation of privacy.

The AG’s opinion provides a thorough survey of Maryland’s and other states’ decisions on the issue, giving three possible interpretations of the wiretap statute as applied to a citizen recording a traffic stop.

First, a court might agree with the theory that police encounters are private conversations, but the AG found that this “seems an unlikely conclusion … particularly when they occur in a public place and involve the exercise of police powers.” That sounds familiar.

Second, a court might conclude that the Maryland statute forbids only the surreptitious recording of a police stop. The opinion deems this an unlikely outcome due to differences between the language of the Maryland law and the wiretapping statutes of Massachusetts and Illinois.

The opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the Maryland Attorney General’s previous opinions have said: the Maryland wiretap statute does not permit the prosecution of citizens for recording the actions of public officials in public places.

Graber’s court date is set for October. The AG’s opinion should halt his prosecution and further abuse of the Maryland wiretap statute.

Maryland Attorney General Sides with Anthony Graber is a post from Cato @ Liberty - Cato Institute Blog

From the Washington Post:

Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.

D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said…

The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.

This is the same jurisdiction where a woman who had a single glass of wine with dinner and a Blood Alcohol Concentration (BAC) of .03 was arrested for being under the influence in 2005. The national standard for a DWI arrest is .08, and anyone testing below .05 is presumed not to be intoxicated. The District of Columbia’s standard for arrest was anything above .01 if the officer deemed the driver intoxicated. Public outcry over the strict policy, particularly in a town built on tourism, prompted the D.C. Council to temporarily amend the law. The D.C. Police website still says that police can charge DUI (Driving Under the Influence, not Driving While Intoxicated) for a BAC of .07 or lower.

There is good reason to question the foundation of DWI laws and enforcement. Radley Balko makes the case that the federal push for reducing the national DWI BAC standard from .10 to .08 achieved little for public safety in Back Door to Prohibition: The New War on Social Drinking. Even Mothers Against Drunk Driving (MADD) founder Candy Lightner regrets the no-tolerance direction her organization has taken: “[MADD has] become far more neo-prohibitionist than I had ever wanted or envisioned… I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”

DWI Convictions Due to Faulty Breathalyzer Calibration is a post from Cato @ Liberty - Cato Institute Blog

Kirk Adams, speaker of the Arizona House of Representatives, has an article in today’s Washington Post on the controversial Arizona immigration law.  Here’s an excerpt:

Under the law, officers can only attempt to determine a person’s immigration status during “lawful contact,” which is defined as a lawful stop, detention or arrest. Any “reasonable suspicion” can be derived only through the investigation of another violation or crime. Those who are concerned that law enforcement can simply walk up to a person and say, “Can I see your papers?” should keep this in mind.

The police are going to ask questions and request to see papers in a variety of circumstances — whether they have reasonable suspicion or not.  From a legal, constitutional, and practical perspective, the key issue is this: What are the consequences, if any, for the person who stands his ground and declines to answer questions or declines to produce identification papers?  If a person declines, will the police back off and say, “Well, that is your right, sir, you may go” or will the police escalate the situation by ordering the person to answer questions, ordering the production of identification, detaining the person, or threaten the person with arrest on bogus charges?

The police are trained to blur the line between “voluntary” interactions with people (perfectly lawful) and “involuntary” interactions with people (where police power is limited by the Constitution).  So, for example, if a police agent says, “Okay pal, let’s see what’s in the backpack!”  it is unclear whether the officer just made a request (lawful) or issued an order (for my purposes here, unlawful).  The onus here is on the layperson to speak up if he does not wish to voluntarily consent to a search: “Officer, I don’t consent to any searches.”  Upon hearing that, the officer will either (a) retreat; (b) clarify that he was ordering, not asking; (c) press the person some more to consent.  A dishonest officer can just lie and deny what you said — and if that matter goes to court the outcome will depend on who the judge believes.  That’s a severe practical disadvantage for laypeople.

With that background in mind, check out this video footage taken by a guy who seems to know constitutional law and immigration law inside out.

The vehicle is not stopped on a warrant, probable cause, or reasonable suspicion.  As far as I can tell, all the cars are being stopped.  The police ask about his immigration status and the driver declines to answer.  The man in the car knows the law well and quickly makes it crystal clear that he’s not interested in a “voluntary” encounter with the police — he wants to be on his way.  The police repeatedly evade his attempt to clarify the situation.  That is, if the police are detaining him, the driver does not want to flee or resist the officers (that’s a crime) — but if the police are not detaining him, the driver does not wish to hang out with them and talk — he wants to be on his way.  Watch the police lie and/or illegally threaten that he will be detained — until he answers their questions.  Watch the police threaten to arrest the man for causing a “safety” hazard, or for “impeding” or obstructing their “work.”  Given those police actions, most people will come to the conclusion that they have no choice in the matter — answer the questions and produce the ID papers.  These are the situations that the courts rarely see.  The citizen who was understandably intimidated by the threats may get mad, but it is not worth it to sue.  If an illegal is discovered, he would be deported in a matter of hours.  This video is thus a real public service announcement — whatever your view is on the immigration matter, do understand clearly how the police will be are interacting with people.

Note also that the police in the video clip work for the federal government, not Arizona.   So those concerned about the Constitution should remain on guard when they hear the claim that “Arizona is only doing what the federal government is already doing.”  Further,  it is doubtful that the Obama administration intends to roll back or reform the powers of the federal police.  Instead, it is trying to retain federal police powers while trying to find a way to challenge Arizona’s methods on racial/ethnic grounds.  The Arizona law is quite misguided, but so too is the president’s legal challenge.

For a terrific video that instructs people on how to deal with the police, go here.

For related Cato work on immigration law, go here, here, and here.

Immigration Law — Up Close is a post from Cato @ Liberty - Cato Institute Blog

Several people videotaped the arrest of a belligerent woman at the Preakness Stakes and posted it online. The woman assaulted another patron of the race and two officers during her well-deserved arrest.

The criminalization of citizens’ recordings of the arrest, which culminates in the woman lying face down and bleeding, is a different matter.

Toward the end of the video, posted on YouTube (warning: violence and language), a police officer approaches the person filming the arrest and says, “Do me a favor and turn that off. It’s illegal to videotape anybody’s voice or anything else, against the law in the state of Maryland.”

Unfortunately, the officer was right.

The Maryland wiretapping law makes it illegal to record a conversation without the consent of all parties involved. The Preakness incident sparked a debate about the wisdom of a law that makes it illegal to provide public accountability of police actions.

This is the latest in a rash of incidents where Maryland police were recorded while using force or making arrests. While the Maryland law makes an exception for police to record their encounters with citizens, Maryland law enforcement officers will arrest and indict anyone who records their encounter with the police.

Case in point: Anthony Graber was riding his motorcycle and recording the experience with a helmet-mounted camera. He was riding recklessly and beyond the speed limit, which warranted a citation, but not his detention by a Maryland State Police officer at gunpoint and the trooper not first identifying himself as an officer of the law. The first few seconds of the encounter look like a carjacking, not enforcement of traffic laws. Graber posted his interaction with law enforcement officers on YouTube and was arrested for it. He now faces felony charges under the wiretapping statute, and prosecutors sought $15,000 bond for a crime that carries a maximum $10,000 fine. The judge reportedly questioned the charges at the bond hearing. Graber goes to trial on June 1st.

This is a questionable policy in the same state where excessive use of force against a University of Maryland student resulted in discipline and possible criminal charges for three Prince George’s County officers. The same jurisdiction knew that Berwyn Heights Mayor Cheye Calvo may have had nothing to do with a drug trafficking ring, but raided his home at gunpoint anyway, terrorized his family, and shot his dogs. The result of the raid was that there was no wrongdoing by Calvo and his family.

The Maryland wiretapping law is itching for an update. It’s time for the Maryland code to stop acting as a barrier to transparency in law enforcement operations.

Police Accountability in Maryland is a post from Cato @ Liberty - Cato Institute Blog

As Jeff Stein notes over at the Washington Post, the declassified summary of the Senate Intelligence Committee’s report on the Christmas underpants bomber ought to sound awfully familiar to anyone who thumbed through the 9/11 Commission’s massive analysis of intelligence failures. Of the 14 points of failure identified by the Senate, one pertains to a failure of surveillance acquisition: the understandably vague claim that NSA “did not pursue potential collection opportunities,” which it’s impossible to really evaluate without more information. (Marc Ambinder tries to fill in some of the gaps at The Atlantic.)  The other 13 echo that old refrain: Lots of data points, nobody managing to connect them. Problems included myopic analysis—folks looking at Yemen focused on regionally-directed threats—sluggish information dissemination, misconfigured computers, and simple failure to act on information already in hand.

Yet you’ll notice that in the wake of such failures, the political response tends to be heavily weighted toward finding ways to collect more dots.  We hear calls for more surveillance cameras in our cities, more wiretapping with fewer restrictions, fancier scanners in the airport, fewer due process protections for captured suspects. Sometimes you’ll also see efforts to address the actual causes of intelligence failure, but they certainly don’t get the bulk of the attention.  And little wonder! Structural problems internal to intelligence or law enforcement agencies, or failures of coordination between them, are a dry, wonky, and often secret business. The solutions are complicated, distinctly unsexy, and (crucially) don’t usually lend themselves to direct legislative amelioration—especially when Congress has already rolled out the big new coordinating entities that were supposed to solve these problems last time around.

But demands for more power and more collection and more visible gee-whiz technology?  Well, those are simple. Those are things you can trumpet in a 700-word op-ed and brag about in press releases to your constituents. Those are things pundits and anchors can debate in without intimate knowledge of Miroesque DOJ org charts.  In short, we end up talking about the things that are easy to talk about.  We should not be under any illusions that this makes them good solutions to intel’s real problems. Hard as it is for pundits to sit silent or legislators to seem idle, sometimes the most vital reforms just don’t make for snazzy headlines.

Collecting Dots and Connecting Dots is a post from Cato @ Liberty - Cato Institute Blog

There are too few periodical venues for good short fiction these days, so I’d normally be enthusiastic about the Wall Street Journal‘s decision to print works of fantasy. Unfortunately, they’ve opted to do so on their editorial page—starting with a long farrago of hypotheticals concerning the putative role of the Foreign Intelligence Surveillance Court in hindering the detection and apprehension of failed Times Square bomber Faisal Shahzad. In fairness to the editors, they acknowledge near the end of the piece that much of it is unvarnished speculation, but their flights of creative fancy extend to many claims presented as fact.

Let’s begin with the acknowledged fiction. The Journal editors wonder whether Shahzad might have been under surveillance before his botched Times Square attack, and posit that the NSA might have intercepted communications from “Waziristan Taliban talking about ‘our American brother Faisal,’ which could have been cross-referenced against Karachi flight manifests,” or “maybe Shahzad traded seemingly innocuous emails with Pakistani terrorists, and minimization precluded analysts from detecting a pattern.”  Anything is possible. But it’s a leap to make this inference merely because investigators appear to have had fairly specific knowledge about his contacts with terrorists after he had already been identified.  They would not have needed to “retroactively to reconstruct his activities from other already-gathered foreign wiretaps:” Once they had zeroed in on Shahzad, his calling patterns could have been reconstructed from phone company calling records whether or not he or his confederates were being targeted at the time the communications occurred, and indeed, those records could have been obtained by means of a National Security Letter without any oversight from the FISA Court.

This is part of a more general strategy we often see deployed by advocates of expanded surveillance powers. After the fact, one can always tell a story about how a known terrorist might have been detected by means of more unfettered spying authority, just as one can always tell a story about how any particular calamity would have been averted if the right sort of regulation were in place. Sometimes the story is even plausible. But if we look at the history of recent intelligence failures, it’s almost invariably the case that the real problem was the inability to connect the right set of data points from the flood of data already obtained, not insufficient ability to collect. The problem is that it’s easy and satisfying to call for legislation lifting the restraints on surveillance—and lifting still more when intelligence agencies fail to exhibit perfect clairvoyance—but difficult if not impossible, certainly for those of us without high-level clearances, to say anything useful about the internal process reforms that might help make better use of existing data. The pundit in me empathizes, but these just-so stories are a poor rationale for further diluting civil liberties protections.

Let’s move on to the unacknowledged fictions, of which there are many.  Perhaps most stunning is the claim that “U.S. intelligence-gathering capability has been substantially curtailed in stages over the last decade.” They mean, one supposes, that Congress ultimately imposed a patina of judicial oversight on the lawless program of warrantless wiretapping and data program authorized by the Bush administration in the aftermath of the 9/11 attacks. But the claim that somehow intelligence gathering is more constrained now than it was in 2000 just doesn’t pass the straight face test. In addition to the radical expansion of the aforementioned National Security Letter authorities, Congress approved roving wiretaps for domestic intelligence, broad FISA orders for the production of “any tangible thing,” so-called “sneak and peek” searches, looser restraints on existing FISA wiretap powers, and finally, with the FISA Amendments Act of 2008, executive power to authorize broad “programs” of surveillance without specified targets. In a handful of cases, legislators have rolled back slightly their initial grants of power or imposed some restraints on powers the executive arrogated to itself, but it is ludicrous to deny that the net trend over the decade has been toward more, rather than less, intelligence-gathering capability.

Speaking of executive arrogation of power, here’s how the Journal describes Bush’s warrantless Stellar Wind program:

Via executive order after 9/11, the Bush Administration created the covert Terrorist Surveillance Program. TSP allowed the National Security Agency to monitor the traffic and content of terrorist electronic communications overseas, unencumbered by FISA warrants even if one of the parties was in the U.S.

This is misleading.  There was no such thing as the “Terrorist Surveillance Program.”  That was a marketing term concocted after the fact to allow administration officials to narrowly discuss the components of Stellar Wind initially disclosed by the New York Times.  It allowed Alberto Gonzales to claim that there had been no serious internal dissent about the legality of “the program” by arbitrarily redefining it to exclude the parts that had caused the most controversy, such as the vast data mining effort that went far beyond suspected terrorists. It was this aspect of Stellar Wind, and not the monitoring of overseas communication, that occasioned the now-infamous confrontation at Attorney General John Ashcroft’s hospital bed described in the editorial’s subsequent paragraph. We continue:

In addition to excessive delays, the anonymous FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks. FISA was written in an analog era and meant to apply to domestic wiretaps in the context of the Cold War, not to limit what wiretaps were ever allowed.

Forgive me if I’m a broken record on this, but the persistence of the claim in that first sentence above is truly maddening.  It is false that “FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks.”  Anyone remotely familiar with the FISA law would have known it was false when it was first bandied about, and a Justice Department official confirmed that it was false two years ago. FISA has never required a warrant for foreign-to-foreign wire communications, wherever intercepted, though there was a narrower problem with some e-mail traffic.  To repeat the canard at this late date betrays either dishonesty or disqualifying ignorance of elementary facts. Further, while it’s true that a great deal of surveillance has always, by design, remained beyond the scope of FISA, it is clearly false that it was “meant to apply to domestic wiretaps” if by this we mean only “wiretaps where all parties to the communication are within the United States.” The plain text and legislative history of the law make it clear beyond any possible doubt that Congress meant to impose restraints on the acquisition of all U.S.-to-foreign wire communications, as well as radio communications targeting U.S. persons. (The legislative history further suggests that they had hoped to tighten up the restraints on radio communications, though technical considerations made it difficult to craft functional rules.) We continue:

The 2008 FISA law mandates “minimization” procedures to avoid targeting the communications of U.S. citizens or those that take place entirely within the U.S. As the NSA dragnet searches emails, mobile phone calls and the like, often it will pick up domestic information. Intelligence officials can analyze, retain and act on true smoking guns. But domestic intercepts must be effectively destroyed within 72 hours unless they indicate “a threat of death or serious bodily harm to any person” or constitute “evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.”

This means that potentially useful information must be discarded if it is too vague to obtain a traditional judicial warrant. Minimization is the FISA equivalent of a fishing license that requires throwing back catches that don’t meet the legal limit. Yet the nature of intelligence analysis is connecting small, suggestive and often scattered clues.

The kernel of truth here is that the FISA Amendments Act did impose some new constraints on the surveillance of Americans abroad. But the implication that “minimization” is some novel invention is just false. Minimization rules have always been part of FISA, and they exist precisely because the initial scope of FISA acquisition is so incredibly broad. And those minimization rules give investigators enormous latitude.  As the FISA Court itself explained in a rare published ruling:

Minimization is required only if the information “could not be” foreign intelligence. Thus, it is obvious that the standard for retention of FISA-acquired information is weighted heavily in favor of the government.

Similarly, the redaction of identifying information about U.S. persons is not required when that information is needed to properly interpret the intelligence, so the idea that analysts would have scrubbed mention of “our American brother Faisal” from an intercept of Taliban communications cannot be taken too seriously.  It’s not entirely clear what the editors are referring to when they say “domestic intercepts must be effectively destroyed within 72 hours:” Do they mean “inadvertent” intercepts of entirely domestic communications, or one-end domestic communications legitimately acquired under the FAA, or what? Either way, that’s not really consistent with what we know about FISA minimization in practice: At least as of 2005, it appears that “minimized” communications were at least sometimes retained in ultimately retrievable form, though not logged.  In any event, if I’m reading them correctly, the Journal is suggesting that NSA should be broadly sweeping up and retaining even the apparently innocent domestic communications of Americans, on the off chance that they might later prove useful? I can imagine being that consumed by terror, but I think I would be ashamed to admit it in public.  Moving on:

Meanwhile, the FISA court reported in April that the number of warrant applications fell to 1,376 in 2009, the lowest level since 2003. A change in quantity doesn’t necessarily mean a change in intelligence quality—though it might.

As it happens, I covered this in a post just the other day.  As a Justice Department official explained to the bloggers at Main Justice, the numerical decline is “due to significant changes in the legal authorities that govern FISA surveillance — specifically, the enactment of the FISA Amendments Act in 2008 — and shifting operational demands, but the fluctuation in the number of applications does not in any way reflect a change in coverage.”  Finally:

These constraints are being imposed at the same time that domestic terror plots linked to, or inspired by, foreigners are increasing. Our spooks did manage to pre-empt Najibullah Zazi and his co-conspirators in a plot to bomb New York subways, but they missed Shahzad and Nidal Hasan, as well as Umar Farouk Abdulmutallab’s attempt to bring down Flight 253 on Christmas Day.

Abdulmutallab was a non-U.S. person who didn’t set foot in the country until after setting his underpants aflame; there is no reason whatever to believe that FISA restrictions would have posed an obstacle to monitoring him. As for Nidal Hasan, investigators did intercept his e-mails with radical cleric Anwar al Awlaki. While it seems clear in retrospect that the decision not to investigate further was an error in judgment, they were obviously not destroyed after the fact, since they were later quoted in various press accounts. Maybe those exchanges really did seem legitimately related to Hasan’s research at the time, or maybe investigators missed some red flags. Either way, the part of the process the Journal is wringing its hands about worked: The intercepts were retained and disseminated to the Joint Terrorism Task Force, which concluded that Hasan was “not involved in terrorist activities or terrorist planning” and, along with Army officials, declined to open an investigation. Rending already gossamer-thin minimization requirements is not going to avoid errors of that sort.

The Journal closes out their fantasy by melodramatically asking “whether FISA is in practice giving jihadists a license to kill.” But the only “license” I see here is of the “creative” variety; should they revisit the topic in the future, the editors might consider taking less of it.

The Wall Street Journal’s Surveillance Fantasies is a post from Cato @ Liberty - Cato Institute Blog

The attempted bombing in Times Square brought terrorism and the capabilities of surveillance cameras to the top of the headlines this week. As I pointed out in my Politico piece, cameras have not proven an effective deterrent to terrorist attacks. Cameras are generally useful in piecing together the plot after the attack (not so much in this case, since police were looking for a middle-aged white man and not a young Pakistani male) and helped in this capacity in the Madrid, London, and Moscow commuter system bombings.

I discuss the usefulness of cameras in this podcast:

Whether cameras are helpful enough to justify massive spending to install more of them in New York is another matter. NYPD Commissioner Ray Kelly seems to think so, even though it’s already been the site of significant surveillance funding from the federal government. Steve Chapman remains skeptical of them, and former NYPD counterterrorism cop Michael Sheehan is honest enough to admit that their value is in investigating attacks, not deterring them. London has a million cameras, making it the most heavily-surveilled city this side of Pyongyang. Though sold on a joint counterterrorism-crime rationale, they did not deter the 7/7 bombings and roughly 80% of crime in London goes unsolved. Of the cleared cases, roughly one in a thousand is a camera success story.

As Roger Pilon points out, cameras are useful in law enforcement operations outside of blanket surveillance. They can deter excessive use of force and other unlawful conduct by police officers or at least provide a means of punishing those responsible, as they did in the recent beating of University of Maryland student. Police officers realize this, and actively deter filming their questionable activities.

A camera is an honest cop’s best friend. It can provide a defense against groundless claims of brutality. At least eleven states and 500 local jurisdictions require that interrogations be videotaped. Beyond the protection of civil liberties and preventing false or coerced confessions, these videos make for highly probative evidence. The jury gets a window into the interrogation room. The defendant’s mannerisms, demeanor, and a lack of police coercion tied to the defendant’s statements make for good, and more transparent, policing.

Cameras, Crime, and Terrorism is a post from Cato @ Liberty - Cato Institute Blog