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.
By Alex Marthews and Danielle Kerem
Late Monday night, surveillance activists learned that the FBI was asking for a two-week postponement in the Apple v. FBI case — vacating a highly-anticipated hearing scheduled for the next day. According to the government, the FBI needed time to explore a newly discovered method for unlocking the iPhone given to San Bernardino killer Syed Rizwan Farook by his employer. Early signs suggest that this “new” technique will work, and the FBI seems likely to drop the case.
So, did we win?
The short answer is, sort of; but the dispute has “been deferred, not resolved” and this latest chapter has provided valuable insights into the trajectory of the encryption debate.
The FBI has been searching for a case that would enshrine into law their expansive and specious interpretation of the All Writs Act — an interpretation that would force companies to ensure the readability of data on devices sold to criminal suspects. The agency seemed confident that the San Bernardino attacks offered a suitable pretext and that the climate of mourning and fear that emerged in the wake of the shootings could be effectively exploited to advance these spurious legal claims — evidenced, in part, by the government’s solicitation of amicus briefs from relatives of the San Bernardino victims.
Events obviously didn’t unfold exactly how the FBI anticipated. Instead of recoiling in patriotic horror at Apple’s contumacious stance, other technology firms and cryptography experts largely went to bat for Apple. These critics voiced arguments that managed to persuade some members of Congress, like Senator Lindsay Graham. Crucially, even prominent surveillance backers publicly questioned the wisdom of the FBI’s legal battle with Apple.
In addition, this week’s developments strongly indicate that the FBI’s declarations — under oath — that an Apple-created software degrade was the only possible solution to the San Bernardino predicament may have amounted to perjury. This allegation is further buttressed by the FBI’s apparent reluctance to seriously consult with the NSA and other intelligence community officials as well as statements by several security experts — and NSA whistleblower Edward Snowden — casting doubt on the veracity of the FBI’s claims that Apple had the exclusive technical means of unlocking the phone.
None of these developments are directly attributable to the awareness-raising efforts of activists, or to compelling commentary from public figures like John Oliver. However, the legal battle has provided civil liberties advocates with an opportunity to encourage the broader public to learn more about the privacy and security of their devices, and to make the case for greater skepticism of law enforcement claims. Yet, despite meaningful scrutiny of the FBI’s narrative in this case as well as the agency’s decision to temporarily withdraw from the Apple dispute, federal law enforcement has issued at least 12 similar, active All Writs Act orders involving iPhones and iPads running iOS 6 to iOS 9.
Moreover, in light of the greater than expected resistance to the FBI’s courtroom strategy, the agency may choose to gain traction by instead lobbying for Feinstein and Burr’s pro-backdoors bill in Congress. The lesson for the American public and our elected representatives is: Beware of the FBI’s claims, especially when those claims may be leveraged to set a troubling precedent with potentially wide-reaching, adverse consequences for consumer protection and the global privacy landscape.
By Danielle Kerem
On Tuesday, the Senate unanimously approved the FOIA Improvement Act, legislation that seeks to strengthen the open records law by limiting exemptions, digitizing documents, and expanding public access. In particular, the proposed statute would require that agencies prove specific, identifiable harm when justifying refusal to disclose documents.
The Senate voted in favor of the bill despite strong opposition from the Department of Justice. In a secret six-page memorandum released earlier this month, the Administration denounced the bill’s efforts to codify a foreseeable-harm standard, contending that attempts to legislate greater transparency and accountability would impose a “crushing burden on agencies” and irreparably damage “proper administration of FOIA.”
The Justice Department additionally lamented the ‘chilling effect’ that increased public scrutiny and agency answerability would have on government activity, writing:
By removing agency discretion to determine when a document covered by an exemption should be released, it would create massive uncertainty and would chill intragovernmental communication.
To be fair, the First Amendment does indeed recognize legitimate limitations to the public’s right to access governmental records. However, given the extensive evidence of agency abuse of FOIA exemptions, the Justice Department’s claim that the introduction of measures to restrict discretionary power constitutes a burdensome intrusion on governmental processes lacks credibility.
In 2011, New York’s Southern District Court rejected efforts by the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), and the Executive Office of Immigration Review (EOIR) to withhold documents that would reveal that the agencies “went out of their way to mislead the public” about a controversial immigration enforcement system. Judge Shira A. Scheindlin, in her strongly worded order, stated that FOIA exemptions “are not concerned with chilling agency efforts to obfuscate, which are anathema to the operation of democratic government.” The reform bill, despite having room for improvement, would facilitate meaningful progress towards constraining these excuses and obfuscations.
In recognition of Sunshine Week and the FOIA Improvement Act’s commendable contributions to government transparency, Restore the Fourth has added our name to a letter asking President Obama to “repudiate the positions taken by the Justice Department and instead publicly and unequivocally endorse the bipartisan FOIA Improvement Act.” The President’s support would be consistent with the promise he made on his first full day in office — a promise to renew the “commitment to the principles embodied in the FOIA” and usher in a new era of open government.
By Danielle Kerem
Over the past year, documents released under the Freedom of Information Act have revealed new details about the Federal Bureau of Investigation and Department of Homeland Security’s suspicionless surveillance of domestic advocacy groups. Significantly, the FOIA documents suggest that Black Lives Matter, Occupy Wall Street, School of the Americas Watch, and the anti-Keystone XL Pipeline movement were targeted based on these organizations’ First Amendment protected views rather than for valid law enforcement purposes. In light of the growing evidence of federal agency interference in constitutionally protected political activity, Restore the Fourth has joined with sixty seven other civil society organizations in calling on Congress to launch an investigation into the nature of, and justification for, F.B.I. and D.H.S. monitoring of non-violent activists and organizers.
The letter and petition, addressed to the House and Senate Judiciary Committees, offer an outline of the F.B.I. and D.H.S.’s surveillance activities in relation to the four abovementioned advocacy groups. Evidence gleaned from the recently released documents indicates that in the aftermath of the police shooting death of unarmed African-American teenager Michael Brown in Ferguson, Missouri, both the F.B.I. and D.H.S. routinely tracked the physical movements and social media accounts of Black Lives Matter protesters – even soliciting intelligence on a planned, peaceful demonstration at the Mall of the Americas from a confidential informant. In recent years, New York City’s discriminatory stop-and-frisk program as well as expansive surveillance of Arab and Muslim Americans (whereby the NYPD spied on at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim Student Associations in New Jersey alone) offer additional examples of communities of color disproportionately shouldering the burden of arbitrary law enforcement surveillance.
As the FOIA documents further detail, the F.B.I. – leveraging the agency’s counterterrorism authority despite acknowledging School of the Americas Watch’s peaceful organizational mission – actively monitored and infiltrated the human rights group. Similarly, in the absence of any suspicion of criminal activity, the FBI also surveilled and interrogated climate change activists coordinating efforts to oppose the construction of the Keystone XL pipeline.
The federal government does, of course, have a lengthy history of targeting racial justice advocates and political dissidents, a history that extends back to the F.B.I.’s Counter Intelligence Program (COINTELPRO). Established in 1956, COINTELPRO instituted a destructive regime of government surveillance, infiltration, and covert action aimed at obstructing and discrediting diverse expressions of domestic dissent. Martin Luther King Jr., in addition to other prominent civil rights leaders, was relentlessly surveilled and harassed by government agents in an effort to silence critiques of racial and economic inequality. Reverend Jesse Jackson, commenting on COINTELPRO’s onerous impact on civil rights advocacy at the time, remarked:
“When you have this feeling that the government really is watching you, you know, taps your telephone, maybe in your text files, it has a chilling effect. It takes away your freedom. And often for leaders, none of us are perfect, it neutralizes people.”
In spite of the renewed commitment to the protection of citizens’ First and Fourth Amendment rights that emerged out of the landmark findings of the Church Committee’s 1975 investigation, the F.B.I. and D.H.S.’s persisting surveillance of citizens engaged in lawful political expression highlights the continued need for greater transparency and oversight to mitigate the chilling effect that surveillance overreach has on political participation and counter the erosion of Americans’ civil liberties. A congressional inquiry into the revelations of government spying on Black Lives Matter, Occupy Wall Street, School of the Americas Watch, the anti-Keystone XL Pipeline movement, and other non-violent political activists is a key step towards ushering in the legal and institutional reforms needed to prevent the misuse and abuse of law enforcement power.
The Wall Street Journal, not having the benefit of a near-pathological obsession with all things surveillance-related, has done some goldfish reporting on how shocked, shocked they are that the NSA may have “inadvertently” and “incidentally” gathered up some communications of US elected representatives, during the course of closely scrutinizing the communications of Binyamin Netanyahu.
It’s goldfish reporting because it exhibits no long-term memory of the history of political surveillance; and more particularly, of recent domestic political surveillance stories.
In 2009, liberal Congresswoman Jane Harman was caught in an almost identical scandal, having likewise been a vehement defender of the NSA, and reacted in the same way, denouncing mass surveillance only when it was turned her way.
From 2009 to 2012, the CIA spied on staffers for Senator Dianne Feinstein and other Democratic Intelligence Committee senators, in order to monitor, and to attempt to discredit, their efforts to hold the CIA accountable for horrific and repeated acts of torture; leading Senator Rand Paul to describe the CIA as “drunk with power” and to talk about the “real fear in Senators’ eyes”.
After the Snowden revelations, speculation ran rampant that Supreme Court Justice John Roberts’s last-minute and unexpected change of his key vote on the constitutionality of Obamacare, had been influenced by the NSA’s possession of information on him derived from its mass surveillance systems.
In April 2015, Congressman Jason Chaffetz had personal information from his past leaked by the Secret Service in order to discredit his efforts to investigate the Secret Service for a series of scandals involving drunk driving, hiring sex workers, and failing to protect the White House from trespassers.
The testimony of NSA whistleblower Russell Tice suggests that these are not just isolated cases that happen to have come to light. Instead, they are likely to be the visible portions of an active practice of surveillance of elected officials and jurists with decision-making authority over the budgets and activities of the surveillance state. It’s not an accident that Congress keeps voting in favor of substantive NSA reforms in public, that then mysteriously get stripped in committee. Surveillance power is blackmail power; it’s been used before in the US, is being used now, and will be used in the future, until we stop it.
Saying this is not paranoia; it’s only to be expected. Set up a mass surveillance system, and it will inevitably be turned against its own overseers. That’s a major reason to adhere to the Fourth Amendment and refuse to set one up.
Of course the NSA will spy on their alleged political overseers. Who the hell would stop them? The FISC? Congress itself, which just gleefully expanded surveillance because somebody said “ISIS, ISIS, ISIS, Boo!”? The President?
I think not.