SB21, a California state ordinance that will mandate extensive oversight of police surveillance technology, is just two votes from being penned into law.
Restore the Fourth is urging all Californians, on behalf of Oakland Privacy, to contact state representatives by Friday to urge them to bring the bill out of suspense for Gov. Brown to sign.
You can contact the governor and your state representative here. But more importantly, we urge you to reach out to the following representatives by phone or on Twitter – especially ones marked with an asterisk(*).
PLEASE CALL OR TWEET and tell them to vote FOR SB 21.</span?
*Lorena Gonzalez-Fletcher (chair) – Tel: (916) 319-2080
Frank Bigelow (vice chair) – Tel: (916) 319-2005
*Richard Bloom – Tel: (916) 319-2050
*Raul Bocanegra – Tel: (916) 319-2039
*Rob Bonta – Tel: (916) 319-2018
William Brough – Tel: (916) 319-2073
Ian Calderon – Tel: (916) 319-2057
Ed Chau – Tel: (916) 319-2049
*Susan Talamantes Eggman – Tel: (916) 319-2013
Vince Fong – Tel: (916) 319-2034
*Laura Friedman – Tel: (916) 319-2043
James Gallagher – Tel: (916) 319-2003
*Eduardo Garcia -Tel: (916) 319-2056
*Adam Gray – Tel: (916) 319-2021
Reginald Jones-Sawyer – Tel: (916) 319-2059
Jay Olbernolte – Tel: (916) 319-2033
Eloise Gomez Reyes – Tel: (916) 319-2047
(Tweets to cut and paste):
Please release #SB21 from suspense to end secret mass police #surveillance in CA @LorenaAD80 @JonesSawyer59 @AsmRichardBloom @AsmBocanegra
Please release #SB21 from suspense to end secret mass police #surveillance in CA @RobBonta @IanCalderon @AsmEdChau @AsmSusanEggman
Please release #SB21 from suspense to end secret mass police #surveillance in CA @AsmEGarciaAD56 @AdamGrayCA @reyes4assembly
Please release #SB21 from suspense to end secret mass police #surveillance in CA @laurafriedman43 @FrankBigelowCA @vfong @J_GallagherAD3
Please release #SB21 from suspense to end secret mass police #surveillance in CA @JayObernolte @BillBroughCA
Tuesday, August 8th, 2017 – Restore the Fourth has filed an amicus curiae in the case of Timothy Ivory Carpenter v. United States of America. In this case, cell-site location information (CSLI) was obtained by subpoena from a cellphone carrier pertaining to the suspect’s cellphone.
In submitting this brief, we seek to urge the court on the following points:
- From the nature of CSLI, it can be derived that privacy is relational: That is, that even when people disclose their information to third parties, that should not mean that they do not have a reasonable expectation of privacy.
- CSLI will become more revealing over time: This is due to the increasing density of tower locations, and the increased power of computers to algorithmically parse a given set of information on people’s locations to predict where they will be in the future.
- Police use of CSLI comes with a high risk of abuse: Such as, usage for LOVEINT (ie. officials with access to government surveillance and data collections utilizing it to spy on lovers, exes, etc.), police concealment of stingray use, and precedents for CLSI used to harass political dissidents abroad.
For these reasons, we urge that the Court should adopt a warrant standard for governmental searches and seizures of CSLI. We hope that the Court will see Carpenter v. USA as an opportunity to make a much-needed reexamination of the ‘third-party doctrine.’
Restore the Fourth would like to thank our counsel, Mahesha Subbaraman, of Subbaraman PLLC, for contributing this brief.
UPDATE: (5/31/17) SB21 passed the California State Senate 21-15, and now will move on to the Assembly.
SB 21 was filed in December by state Sen. Jerry Hill (D-San Mateo), proposing that all new law enforcement surveillance equipment to be first approved by local government. The approval process would require agencies to submit a Surveillance Use Policy at a meeting open to the public. They would have to specify the type of technology to be use, data to be collected, who would have data access, storage duration, and the steps taken to ensure security and privacy. The bill had initially been approved by the Judiciary Committee.
- Separate use policies for each kind of equipment
- Affirmative legislative approval required for use policies and impact reports or use ceases
- Ongoing usage reporting no less than every two years
- Amendments required due to requesting funds for acquiring, using, or accessing information from any new technology
- Private right of action for those harmed by violation of the policy
- Limitations on exigent use
- Inclusion of district attorneys
The bill, in its latest incarnation, has now passed through the Budget Committee (aka. Appropriations), and can now move on to the State Senate and Assembly.
After a preview on Radio Statler at the HOPE XI Conference this summer, Restore the Fourth launched their new podcast, “Privacy Patriots“. Hosts Fongaboo and Chuck Ritter discuss political and social policy issues regarding privacy and the 4th Amendment in the digital age.
Privacy Patriots is available on most major podcast directories as well as RSS feeds for both MP3 and OGG formats.
Yahoo compromised the security and privacy of hundreds of millions of users and all the people they communicate with by installing a secret software program that searched all incoming emails at the request of US intelligence officials.
Sign the pledge to dump Yahoo now and learn how you can send a clear message to email providers that this kind of secret surveillance won’t go unanswered.
Restore the Fourth had a strong showing from around the country at this year’s HOPE XI conference. Brian Hofer and aestetix of RT4 San Francisco hosted the talk ‘Spy Hard with a Vengeance: How One City Stood Up to the Department of Homeland Security‘ regarding their fight against a DHS Domain Awareness Center in Oakland, CA. RT4 Chairman Alex Marthews spoke on the chilling effects of government surveillance on citizens’ online activity in his talk ‘Surveillance Gives Me Chills‘. RT4 ally and ACLU lawyer Matt Cagle appeared on panel for ‘Only You Can Stop Police Surveillance‘. And RT4 launched ‘Episode Zero’ of the forthcoming RT4 podcast ‘Privacy Patriots‘ on Radio Statler, with host Fongaboo, Zaki Manian and Alex Marthews.
Spy Hard with a Vengeance: How One City Stood Up to the Department of Homeland Security
Brian Hofer & aestetix, RT SF
Surveillance Gives Me Chills
Alex Marthews, RT4 National Chair
Only You Can Stop Police Surveillance
Matt Cagle, Mariko Hirose, Jared Friend
— Privacy Patriots (@PrivacyPats) July 27, 2016
Archive is forthcoming at http://radio.hope.net/archive.html
The Fourth Amendment Applies More Broadly than the Government is Making Out
By Danielle Kerem
Restore the Fourth filed an amicus brief today at the United States Court of Appeals for the Ninth Circuit. The case, Araceli Rodriguez v. Lonnie Swartz, concerns the shooting death of 16-year-old Jose Antonio Elena Rodriguez and raises critical Fourth Amendment questions with potentially significant consequences for American law enforcement conduct both abroad and at home.
On October 10, 2012, Jose Antonio was gunned down by United States Border Patrol agent Lonnie Swartz while walking home following a game of basketball in his Nogales, Mexico neighborhood. As he walked along a public street parallel to the U.S.-Mexico border, the teenager was shot in the back approximately 10 times by agent Swartz, who fired multiple rounds through the border fence from his position on American soil. Jose Antonio bled to death a short time later.
In July 2014, Jose Antonio’s mother – Araceli Rodriguez – filed a civil lawsuit in Arizona against the agent responsible for his death, alleging that Swartz had violated her son’s Fourth Amendment rights by using excessive and unjustified force. In response, Swartz’s legal team moved for dismissal of the case on the grounds that Jose Antonio was a Mexican citizen killed on Mexican territory and consequently not protected by the U.S. Constitution.
The court, however, partially denied the defendant’s motion, instead affirming that “under the facts alleged in this case, the Mexican national may avail himself to the protections of the Fourth Amendment and that the agent may not assert qualified immunity.” In July 2015, Swartz appealed the district court’s decision. In February 2016, the United States filed an amicus brief objecting to the district court’s finding that Jose Antonio benefited from Fourth Amendment protections and supporting reversal of the ruling. The Department of Justice contended that the “Fourth Amendment does not extend extraterritorially to aliens without significant voluntary connections to the United States,” grounding this interpretation in the 1990 United States v. Verdugo-Urquidez Supreme Court decision.
In today’s amicus brief, Restore the Fourth – through our counsel at Subbaraman PLLC and the Harvard Law School Cyberlaw Clinic – advances two core arguments to address the Government’s misrepresentation of Fourth Amendment protections as well as misreading of the relevant case law. First, we contend that the Fourth Amendment, at a minimum, requires government searches and seizures of anyone to be reasonable. Second, we insist that the “substantial and voluntary connections” test articulated in United States v. Verdugo-Urquidez determines what constitutes a reasonable search or seizure only when this test can be administered:
Restore the Fourth files this brief in order to address the United States’s misreading of Verdugo-Urquidez. The plurality did not erase the Fourth Amendment’s core demand that all government searches and seizures be “reasonable”—even extraterritorial searches and seizures of aliens. See Boumediene v. Bush, 553 U.S. 723 (2008). Rather, the plurality merely established that the Fourth Amendment affords the government reasonable latitude when it is capable of reviewing an alien’s connections with the United States before searching or seizing him. Here, by contrast, Agent Swartz killed J.A. without any such review. His actions were thus patently unreasonable, even if one were to conclude that J.A. lacked substantial voluntary connections to the United States.
According to Alex Marthews, National Chair of Restore The Fourth, “since the misinterpreted Verdugo-Urquidez decision in 1990, we have built new and oppressive structures of immigration control, foreign policy and mass surveillance on the basis of being able to ignore some people’s unalienable rights, even in times of peace. The Fourth Amendment cannot be twisted to support this. Jose Antonio’s family, and every family affected by U.S. state power, deserve better.”
CVE Initiatives Perpetuate Discriminatory Law Enforcement Practices and Threaten Freedom of Expression
By Danielle Kerem
Belmont, MA – Today, Restore the Fourth and a coalition of civil rights organizations sent a joint letter to President Obama asking that he re-evaluate the ill-conceived and ineffective Countering Violent Extremism (CVE) program. According to the government, CVE is an interagency initiative designed to “develop and implement a full-range of partnerships to support and enhance efforts by key stakeholders to prevent radicalization and recruitment to violence by terrorist organizations.” However, in practice, the program undermines community trust and cohesion, stigmatizes Muslims and Arab Americans, as well as risks criminalizing First Amendment-protected speech.
In particular, the coalition’s letter to the President outlined concerns related to the CVE program’s planned establishment of Shared Responsibility Committees (SRCs) – committees that would task educators, health workers, and religious leaders with identifying and reporting ‘radicalized’ community members. According to Restore the Fourth National Chair Alex Marthews, the SRCs “make a mockery of professional confidentiality, because the people they interview don’t know that the professional they’re interacting with is feeding information back to the FBI.”
In addition to cultivating a climate of distrust, the CVE program also endangers freedom of expression. For instance, the FBI’s “Don’t Be a Puppet” website promotes the policing of ideas by encouraging “members of the public and particularly teenagers to identify and report language they regard as being ‘extreme’ or ‘radical’.” Moreover, the government has been working aggressively to enlist the cooperation of Silicon Valley technology firms in facilitating “counter-messaging and content monitoring initiatives” on social media platforms.
According to Sue Udry, Executive Director of the Bill of Rights Defense Committee / Defending Dissent Foundation, “CVE programs incorrectly, and unconstitutionally, focus on political and religious beliefs to cast suspicion on Muslims and dissidents. These programs are fanning the flames of Islamophobia, and must be opposed.”
In light of the lack of empirical research to support CVE programming as well as the serious concerns expressed in relation to the CVE initiative’s threats to freedom of expression, the letter to President Obama concluded with a call for the President to re-route “the funds for CVE to programs with better evidentiary basis for their positive effect on levels of violence.” The White House’s decision to do so would send an important “message to American Muslims and critics of the U.S. government’s foreign and domestic policies that you can indeed hold any belief that the First Amendment protects, without fear of U.S. government harassment.”
100 days have passed since a pro-encryption petition at SaveCrypto.org surpassed 100,000 signatures. According to the White House’s own terms of participation, petitions that have collected over 100,000 signatures can expect a substantive response from the President within two months. Today, after waiting 167 days for President Obama’s reply, Restore the Fourth — along with 36 other academics, NGOs, and companies — sent a letter to the President “to respectfully request that the White House specifically oppose legislation to undermine security and reiterate the need for a broad statement of support for encryption from the administration.”
The Hill‘s recent publication of draft anti-encryption legislation written by Senators Richard Burr (R-NC) and Dianne Feinstein (D-CA) elevated existing concerns about the Administration’s delay in addressing the petition. The Burr-Feinstein bill would viscerally undermine privacy, security, and innovation by “forcing nearly all U.S. companies to decrypt any encrypted data they may handle.” As the letter explains:
Last week, the text of a draft bill written by Senators Burr and Feinstein was published…It is difficult to take this draft seriously. It has been broadly written to require that all internet companies, and in fact ‘any person who provides a product or method to facilitate a communication or the processing or storage of data,’ either undermine the security features they offer users or offer lesser security so as to facilitate government access. This definition includes institutions that many, including government agencies and representatives, rely upon to protect our most sensitive data. It is beyond dispute that this bill would threaten the safety of billions of internet users, including journalists, activists, and ordinary people exercising their right to free expression, as well as critical infrastructure systems and government databases. However, it would likely to do very little to assist in investigations of crime or terrorism, since those who engage in illegal activities will have access to other means to protect their own devices and communications.
“We created We the People because we want to hear from you,” reads the introduction on the White House’s online petitioning platform. Restore the Fourth, our co-signatories, and tens of thousands of petitioners have spoken, and we would like to hear President Obama affirm his commitment to safeguarding American security and privacy by rejecting Burr and Feinstein’s dangerous proposal.
Signatories include: Access Now, Advocacy for Principled Action in Government, American Library Association, American-Arab Anti-Discrimination Committee (ADC), Bill of Rights Defense Committee/Defending Dissent Foundation, British Columbia Civil Liberties Association, Canadian Access and Privacy Association (CAPA), Canadian Institute of Access and Privacy Professionals (CIAPP), Center for Democracy and Technology, Center for Media Justice, Committee to Protect Journalists, Constitutional Alliance, CREDO, Demand Progress, Electronic Frontier Foundation, Engine, Fight for the Future, Free Press Action Fund, Hackers/Founders, IPVanish VPN, New America’s Open, Technology Institute, Niskanen Center, OpenMedia, PEN American Center, Privacy and Access Council of Canada – Conseil du Canada de l’Accès et la vie Privée (PACC-CCAP), La Quadrature du Net, Reinst8, Restore the Fourth, R Street Institute, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), the Tor Project, Venture Politics, X-Lab, and Eric Burger; Georgetown University, Ian Goldberg; University of Waterloo, James O’Keefe, and John Wunderlich
FBI’s Interactive ‘Anti-Extremism’ Website Stigmatizes Youth of Color and Deters Expression of First Amendment Protected Views
By Danielle Kerem
Restore the Fourth has joined a coalition of civil rights organizations in calling on the FBI to dismantle the agency’s “Don’t Be a Puppet” website and more broadly re-evaluate the FBI’s strategy for countering violent extremism. In a letter addressed to FBI director James Comey, Restore the Fourth – in conjunction with the Arab-American Anti-Discrimination Committee, American Civil Liberties Union, Bill of Rights Defense Committee, and ten other advocacy groups – expressed opposition to the “Don’t Be a Puppet” program’s promotion of ethnic, religious, and ideological profiling.
“Don’t Be a Puppet” is an interactive website that, according the FBI, aims to “open the eyes of teens to the devastating reality and deceptive messaging of violent extremism and to help strengthen their resistance to radicalization and possible recruitment. However, instead of effectively preventing extremist violence, the website “perpetuates profiling and negative stereotypes that Arabs, Sikhs, South Asians, Muslims and those perceived to be Muslim are prone to engage in extremist violence and encourages the policing of thoughts, ideas, and beliefs.”
The video game advises students to report acquaintances or friends who may be “traveling to places that sound suspicious.” As our letter notes, “this warning is extremely troublesome because of the subjective and vague concept of a ‘place that sounds suspicious’…there should be nothing inherently suspicious about traveling either to Saudi Arabia or Iraq, where some Muslim holy sites are located, bias could lead individuals to report innocent, constitutionally protected activity to law enforcement.” The website employs similarly ambiguous language in warning online visitors that the use of “code words or unusual language” may be a warning sign of someone planning to commit violent extremism.
Moreover, by deputizing teachers to look for “warning signs” in the classroom, the program risks undermining trust between students and instructors as well as hinders the “free exchange of speech, ideas, and debate on controversial topics because students are afraid of being labeled suspect and being reported to the police.” As Georgetown University Law Professor Arjun S. Sethi explains:
Teachers in classrooms should not become an extension of law enforcement. The program is based on flawed theories of radicalization, namely that individuals radicalize in the exact same way and it’s entirely discernible. But it’s not, and the FBI is basically asking teachers and students to suss these things out.
The website’s messaging is particularly troublesome given the chilling rise of Islamophobia in American schools. According to a California State University analysis, “hate crimes against Muslim Americans and mosques across the United States have tripled in the wake of the terrorist attacks in Paris and San Bernardino.” Sadly, children and adolescents have not been untouched by this spike in anti-Muslim bigotry. Last November, “a sixth-grade girl in the Bronx was reportedly attacked by three boys who tried to take off the hijab she was wearing, punched her and called her ‘ISIS’.”
In light of this intensifying climate of fear and suspicion, Restore the Fourth asks that Federal law enforcement not exacerbate religious and ethnic discrimination by perpetuating negative stereotypes of Arab and Muslim Americans. In addition to taking down the “Don’t Be a Puppet” website, Restore the Fourth urges the FBI to take into consideration the recommendations of a May 2015 9/11 Review Commission report that found that the FBI’s Countering Violent Extremism Office’s “current limited budget and fundamental law enforcement and intelligence responsibilities do not make it an appropriate vehicle for the social and prevention role in the CVE mission…such initiatives are best undertaken by other government agencies.” Accordingly, Restore the Fourth asks that the FBI instead invest in evidence-based investigations that protect public safety and don’t unjustly stigmatize communities of color.