The Lives of Others 2.0
Tattoo it on your forearm—or better, that of your favorite legislator—for easy reference in the next debate over wiretapping: government surveillance is a security breach—by definition and by design. The latest evidence of this comes from Germany, where there’s growing furor over a hacker group’s allegations that government-designed Trojan Horse spyware is not only insecure, but packed with functions that exceed the limits of German law:
On Saturday, the CCC (the hacker group) announced that it had been given hard drives containing “state spying software,” which had allegedly been used by German investigators to carry out surveillance of Internet communication. The organization had analyzed the software and found it to be full of defects. They also found that it transmitted information via a server located in the United States. As well as its surveillance functions, it could be used to plant files on an individual’s computer. It was also not sufficiently protected, so that third parties with the necessary technical skills could hijack the Trojan horse’s functions for their own ends. The software possibly violated German law, the organization said.
Back in 2004–2005, software designed to facilitate police wiretaps was exploited by unknown parties to intercept the communications of dozens of top political officials in Greece. And just last year, we saw an attack on Google’s e-mail system targeting Chinese dissidents, which some sources have claimed was carried out by compromising a backend interface designed for law enforcement.
Any communications architecture that is designed to facilitate outsider access to communications—for all the most noble reasons—is necessarily more vulnerable to malicious interception as a result. That’s why technologists have looked with justified skepticism on periodic calls from intelligence agencies to redesign data networks for their convenience. At least in this case, the vulnerability is limited to specific target computers on which the malware has been installed. Increasingly, governments want their spyware installed at the switches—making for a more attractive target, and more catastrophic harm in the event of a successful attack.
A Patriot Update
A few developments from a business meeting of the Senate Judiciary Committee held this morning. As I noted last month the new House Intelligence Chair, Rep. Mike Rogers (R-Mich.) has already introduced another one-year straight renewal without modification. Since then, Sen. Pat Leahy (D-Vt.) has introduced a bill that would renew the expiring Patriot Act surveillance provisions through 2013, but with some very basic additional safeguards and oversight requirements—many of which the Justice Department has already agreed to implement voluntarily—including most crucially added constraints and a new sunset for expanded National Security Letter powers, which have already been held at least partly unconstitutional in their current form by federal courts, and which the government’s own watchdogs have already found to be subject to widespread abuse.
Enter Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, who played a key role in killing the same mild reforms last year. She’s already introduced legislation of her own, which would provide for an extension through the end of 2013, without any modifications, of not only the provisions set to expire this year, but also the highly troubling FISA Amendments Act, which in effect legalized the Bush administration’s illicit programmatic wiretapping with an added sliver of judicial oversight. Even this was not quite enough for Sen. Chuck Grassley (R-Iowa), who announced he would introduce a bill making the expiring provisions permanent—effectively removing an important impetus to continuing oversight.
Feinstein, interestingly, purported to be theoretically supportive of Leahy’s reformist impulses, but argued that the “time crunch” created by the end-of-February sunset deadline makes this the wrong time to consider reforms. (In order to hurry things up, a Hill contact tells me, Feinstein’s bill will be fast-tracked to the floor under Senate Rule 14, circumventing the committee process.) This really makes very little sense. Leahy’s bill is essentially the same proposal reported out favorably by a bipartisan Judiciary Committee majority; the point of doing a one-year reauthorization in 2010 was supposedly to allow Congress to consider reform alternatives in the interim. Moreover, the Justice Department has already effectively agreed to accept the reforms that bill contains. If there’s nevertheless a need for further deliberation, Congress can do exactly what it did last time around and extend the sunset by a few weeks or months to allow for additional debate.
The time constraints here are wholly of Congress’ own making. And while the Leahy bill doesn’t go far enough by any means, there is just no good excuse to delay at least the beginning of needed reforms any further.
Cops on Camera
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.
A Surveillance State Coda
The program of warrantless NSA wiretapping (and data mining) authorized by President George W. Bush shortly after the 9/11 attacks prompted a flurry of intense debate over its legality when it was disclosed by The New York Times back in 2005. Those arguments have, by now, been so thoroughly rehearsed that there’s not a whole lot new to say about it.
But like Monty Python’s Black Knight, some of those old arguments keep popping up — as evidenced by John Eastman’s contribution to the Cato Unbound roundtable on the digital surveillance state we held last month. So while the roundtable’s over, I thought it would be convenient to round up a compact version of the main arguments in one place, for the convenience of folks who might not want to slog through the many law review articles that have been written on the subject.
Maryland Attorney General Sides with Anthony Graber
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.
Collateral Murder, Indeed
I finally found the time to go through the WikiLeaks’ Afghan War Diary entries containing accounts of my 2004 tour in Afghanistan (my third tour; appropriate bio and disclaimer can be found here).
I am underwhelmed. I am not sure what Julian Assange thought the release of these documents would tell people about the war in Afghanistan, beyond the fact that people are shooting at each other and that, generally speaking, war is Hell. If I identified the entries associated with my service in Afghanistan, you would read summaries of the firefights and rocket attacks that my unit faced, with metrics of rounds fired and received and associated casualties.
Parallel to Noah Schachtman’s excellent write-up contrasting his experiences while embedded with Marines in Helmand Province versus what WikiLeaks provides, you would have little visibility on the actual maneuver of troops, the relationship that they have with the populace, and the effectiveness of Afghan forces. Reading WikiLeaks alone would give you a picture of the Afghan War that falls short of what you can get from normal press outlets.
This skewed portrait of our policy comes at no small price. The identification of our intelligence contacts and sources is sure to put their lives in danger, as Steve Coll and (more importantly) Taliban spokesmen point out.
Unfortunately, Assange has taken Afghan War policy as an acceptable loss as well, no matter how you define it. Whether you support a COIN-centric approach, a reduced footprint in Afghanistan, a counterterrorism model, or even letting the CIA run the war, this is a disaster. This release of information is actually more damaging to downsizing strategies, since we will end up leaning on tribal alliances and intelligence assets more, not less.
Assange is facilitating the deaths of our intelligence contacts because he believes that the benefits outweigh the cost of their lives. That’s mighty rich, coming from a guy who labeled a 2007 case of mistaken identity in Iraq that resulted in the death of civilians as “collateral murder.” In that case, helicopter pilots misidentified a reporter’s zoom lens as the tail end of an RPG launcher, but armed men were in the reporters’ entourage that may have independently met the criteria for using force under the rules of engagement.
That’s (possibly) a mistake in the distinction of combatants, not an intentional approval of the loss of innocent life that is deemed acceptable in proportion to the direct military advantage anticipated. The latter is the definition of collateral damage, and Assange seems to have no problem with asserting his moral judgment in this realm.
Collateral murder, indeed.
Cops and Cameras: The Future of Policing
The USA Today editorial board is criticizing the use of state wiretapping laws to prosecute citizens who tape on-duty police officers. I have written on this extensively: here, here, here and here. The editorial joins the Washington Examiner and Washington Post in this critique.
USA Today’s opposing view (presented by two AFL-CIO police union officials) provides this comment:
In today’s environment, police officers have to assume that every action they take is captured on tape, somewhere. They must be comfortable that everything they say or do in the course of their duties may be shown on the 5 o’clock news.
Our problem is not so much with the videotaping as it is with the inability of those with no understanding of police work to clearly and objectively interpret what they see. Videotapes frequently do not show what occurred before or after the camera was on, and the viewer has no idea what may have triggered the incident or what transpired afterwards.
This is often true. The recordings that prompt public outcry are sometimes “gotcha” moments where the camera only captures the use of force with no context.
Here is an example from Maryland that shows officers arresting a woman during the Preakness Stakes. At the end of the video, an officer says to the person recording the arrest: “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.”
As the USA Today editorial notes, this is a misreading of Maryland law that is kept alive by the prosecution of Anthony Graber and others who record the police. My commentary on the issue is here. As Carlos Miller points out, Maryland prosecutors come to different conclusions about the scope of the state’s wiretap law.
“Privacy” v. Justice: Wiretapping Case Update
Anthony Graber, the Maryland motorcyclist being prosecuted on state felony wiretapping charges for recording his traffic stop and posting the video on YouTube, is the subject of an article in today’s Washington Post. I have said (again and again) that this is a misreading of the Maryland wiretapping statute, which is not supposed provide grounds for prosecution where there is no “reasonable expectation of privacy.”
Graber was on the side of the highway, and the police officer asserting this expansive reading of the wiretap statute while making an arrest at the Preakness was in the middle of a large crowd. There is no reasonable expectation of privacy in either of those places. The Post article provides the other side of the argument:
The attention the Graber case is receiving has surprised Harford prosecutor Joseph I. Cassilly, who said his office has prosecuted similar cases before, including one within the past year against the passenger of a car that was stopped during a drug investigation who started taping officers with a cellphone camera. Cassilly said he didn’t know the status of the case because the prosecutor handling it has been out sick.
“The question is: Is a police officer permitted to have a private conversation as part of their duty in responding to calls, or is everything a police officer does subject to being audio recorded?” Cassilly said.
Cassilly thinks officers should be able to consider their on-duty conversations to be private.
I disagree. The injustice of the Maryland wiretap law was demonstrated earlier this week when Rep. Bob Etheridge assaulted a student who asked him a question while recording the encounter. The students were lucky that they were in the District of Columbia.
If the scuffle had been in Maryland, Etheridge could have been prosecuted for misdemeanor assault (this remains true for D.C., but I am not aware of any charges that have been made). In contrast, the students would have been on the hook for a felony violation of the wiretap law for recording the event, another violation for posting the event on the internet, and an additional charge for possession of the device used to intercept the conversation. I’m not agreeing with that reading of the law, but that’s the interpretation being used to prosecute Anthony Graber.
Whatever your views on privacy are, that’s not justice.
Baltimore Police Officer Fires 13 Shots, Kills Unarmed Man
An off-duty Baltimore police officer and a former Marine had a disagreement about the Marine’s advances toward the officer’s girlfriend. The officer ended it with thirteen rounds fired from his service pistol, six hitting the Marine and killing him. Baltimore police have confirmed that the Marine was unarmed. The officer refused a breathalyzer at the scene. (HT Instapundit)
It gets better. The officer was involved in another shooting five years ago, which was determined to have been justified, but the officer was disciplined… for being intoxicated.
I suspect that if your average citizen had defended his significant other’s honor with a dozen or so bullets, he would be in jail. Not so for the officer, who remains on administrative leave.
Of course, anyone recording the exchange that led to the shooting could be prosecuted for a felony under Maryland’s wiretapping law. Just ask Anthony Graber.
Revise the Maryland Wiretap Law?
As I said in this piece in the Baltimore Sun, Maryland police officers are misusing that state’s wiretap law to deter anyone who would film them performing their duties. Maryland officers have asserted that any audio recording of a conversation, even in a public place, is a violation of the state’s wiretapping law and a felony punishable by five years in prison and a $10,000 fine. Officers made this claim to deter filming of an arrest at the Preakness, and when motorcyclist Anthony Graber videotaped his traffic stop.
As Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and Maryland rulings interpreting the scope of the law. Is it time for a revision of this law, or is it just the officers’ interpretation that is the problem? I discussed this on the Kojo Nnamdi Show with the prosecutor pressing charges against Anthony Graber, State’s Attorney Joseph Cassilly, and Graber’s lawyer, David Rocah of the Maryland ACLU.
Police Accountability in Maryland
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.
Collecting Dots and Connecting Dots
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.
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