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The FBI Database: How the Government is Spying on You

Published
by
Michael Law
on November 12, 2007
in Constitutional Law and Weird Laws
. 0 Comments

The FBI is watching you.

Well, maybe not you in particular, but there’s a new technique they’re using that may have you concerned.

A brief description of the FBI

The FBI (Federal Bureau of Investigation (FBI) is the primary investigative arm of the United States Department of Justice (DOJ).  In basic terms, they are the lead agency in charge of law enforcement in the United States. Their motto is “Fidelity, Bravery, Integrity”.

The controversial government spying technique

There is a new Internet surveillance technique that the FBI is using to collect data on Americans. You might think they’re using this data collection in order to find out what a particular criminal suspect is doing and they are recording this for investigative and evidence purposes. The problem here is that FBI agents are collected data on the activities of thousands of users on the internet at one time. They are then placing these web histories of unsuspecting innocent people in huge government databases. These allegations have been collaborated by current and former government officials.

Types of data collected on citizens

The information they may have on you may include your name, email address and keywords you are searching for.

The FBI used to use the Carnivore surveillance system (renamed to DCS1000) but this new method of internet data collection is broader and more controversial than even that system.

This approach by the FBI is called the vacuum-cleaner approach by some. It is used when there’s a court order given to police to gather information on a suspect. However, if an ISP (Internet Service Provider, like AOL) can’t isolate that person due to technical issues, they use this type of shotgun-scanning system.

The FBI can then record this information, which will include all Internet traffic, at the ISP side. They can then set it up to collect data on web browsing habits, emails, or instant messaging.

The law school symposium that started the scandal

Stanford University law school had a symposium called “Beyond a Physical Conception of the 4th Amendment: Search & Seizure in the Digital Age”. Paul Ohm, a University of Colorado law professor who was a commenter at the symposium said that federal agents use this kind of “full-pipe recording” as a default method for surveillance.  “You collect wherever you can on the (network) segment,” Ohm said. “If it happens to be the segment that has a lot of IP addresses (Internet Protocol addresses; a computer’s unique numerical address), you don’t throw away the other IP addresses. You do that after the fact. You intercept first and you use whatever filtering, data mining to get at the information about the person you’re trying to monitor. The question that’s interesting…is whether this is illegal, whether it’s constitutional. Is Congress even aware they’re doing this?”

“What they’re doing is even worse than Carnivore,” said Kevin Bankston, a Electronic Frontier Foundation staff attorney. “What they’re doing is intercepting everyone and then choosing their targets.”

Carnivore version two

The federal bureau dropped the Carnivore project two years ago. The bureau then basically outsourced this by having the Internet Service Providers do the surveillance and then reimburse the companies for the costs of such an operation.

Federal law versus the FBI

Federal law states that the FBI must perform “minimization”. Minimization decrees that federal agents must “minimize the interception of communications not otherwise subject to interception” and keep the supervising judge informed. This gives some privacy by intending to limit eavesdropping on innocent conversations. The current rules allow FBI agents to listen to a phone call up to two minutes, with one minute in between the sessions. An interesting observation with this federal law is that it mentions real-time interception – meaning agents actively listening to calls at the moment they occur. The law does not authorize the collection of huge information databases on thousands of innocent people. The closest the law comes to mentioning such a practice is: “In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.”

Some government officials feel the language authorizes the database collection. “Take a look at the legislative history from the mid ’90s,” says DOJ assistant deputy chief Richard Downing. “It’s pretty clear from that that Congress very much intended it to apply to electronic types of wiretapping.”

The Electronic Frontier Foundation staff attorney disagrees with that assessment. Kevin Bankston feels the FBI is “collecting and apparently storing indefinitely the communications of thousands–if not hundreds of thousands - of innocent Americans in violation of the Wiretap Act and the 4th Amendment to the Constitution.”

There might be a middle ground in this debate. The director of the Electronic Privacy Information Center in Washington, D.C., Marc Rotenberg,  feels that a balanced way of conducting this is to require FBI agents to only come in contact with the information that is permitted by court order. “The obligation should be on both the (Internet provider) and the government to make sure that only the information responsive to the warrant is disclosed to the government,” says Rotenberg.

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FBI Threatens Man’s Family With Torture To Get Confession

Published
by
Michael Law
on October 31, 2007
in Constitutional Law and Criminal Law
. 0 Comments

From Boing Boing:

Long story short: Man is staying in hotel in NYC during the 9/11/2001 attacks. Hotel empties after attacks and device is found in man’s hotel room closet that allows communication with airline pilots. Man is Egyptian national, and FBI questions him. Man denies owning device.

FBI agent threatens that man’s family will be tortured in Egypt.

Man confesses, ultimately spending a month in jail before airline pilot shows up at hotel asking for radio left in man’s room back. Whoops! Lawsuits ensue.

From Steve Bergstein’s Psychosounds blog, where I found this:

“Higazy then realized he had a choice: he could continue denying the radio was his and his family suffers ungodly torture in Egypt or he confesses and his family is spared. Of course, by confessing, Higazy’s life is worth garbage at that point, but … well, that’s why coerced confessions are outlawed in the United States.”

Good thing the FBI doesn’t do this any more. Right?

We never would have known any of this as the US Court of Appeals in Manhattan redacted the description of the torture threats in its decision, but someone posted an unredacted decision on the web for a brief time. And a PDF of that is what’s making the rounds now.

Here’s the link to a story on the situation from the ABA Journal.

In it, the court claims it redacted the information about the torture threats to protect Higazy and his family. The story doesn’t say what they’re being protected from.

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Freedom of Speech Has Limits

Published
by
Michael Law
on October 30, 2007
in Business Law, Constitutional Law and Torts
. 0 Comments

From May it Please the Court:

You have a First Amendment right to say whatever you want, even if it’s critical, right?

Wrong.

There are limits. The typical example prohibits you from yelling “Fire” in a crowded theater. That limit exists because to do so is dangerous. But what happens if you just want to be critical?

And critical and critical and critical. Almost like a protest.

Anne Lemen, a self-described Christian evangelist, found out the hard way. She was apparently upset with a neighboring restaurant, the Balboa Island Village Inn, a small bar and grill just down the way from MIPTC in Newport Beach. Lemen lives next to the restaurant, which she defamed as part of her campaign to shut the bar down, telling anyone that the bar made sex videos, dabbled in child pornography, distributed illegal drugs, encouraged lesbian activities, had mafia links, was a whorehouse and sold tainted food. The trial court ruled all were false statements, and banned her from making them.

That’s not all Lemen said. She called customers “drunks” and “whores.” She told customers entering the Inn, “I don’t know why you would be going in there. The food is shitty.” She approached potential customers outside the Inn more than 100 times, causing many to turn away. Lemen had several encounters with employees of the Village Inn. She told bartender Ewa Cook that Cook “worked for Satan,” was “Satan’s wife,” and was “going to have Satan’s children.” She asked musician Arturo Perez if he had a “green card” and asked whether he knew there were illegal aliens working at the Inn. Lemen referred to Theresa Toll, the owner’s wife, as “Madam Whore” and said, in the presence of her tenant, Larry Wilson: “Everyone on the island knows you’re a whore.”

Aric Toll, who bought the business in 2000, saw his sales drop by 20%.

Despite these defamatory remarks, the Court of Appeals reversed the trial court’s injunction, leaving only minor restrictions in place (preventing her from videotaping patrons on their way in or out of the bar).

Last week, however, the California Supreme Court reversed the reasoning in the Court of Appeal’s decision, and ruled that a Court can stop Lemen’s defamatory statements and activities. In the Court’s words (despite two separate dissents and one concurring opinion), “. . . a properly limited injunction prohibiting [Lemen] from repeating statements about [the Village Inn] that were determined at trial to be defamatory would not violate [Lemen]’s right to free speech.”

There is a line, and Lemen crossed it. Now the case goes back to the lower court to redo the injunction and hold a trial on the damages Lemen caused the bar. That will be an expensive lesson in “free speech.”

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