The Freedom Bulletin

As Congress is debating CISPA – the Cyber Intelligence Sharing and Protection Act – the Obama administration has, surprisingly, come out strongly against the bill. Although not (yet) as high-profile or as widely opposed as SOPA or PIPA, CISPA poses similar threats to privacy. According to Tech Dirt and the Electronic Frontier Foundation, it would allow companies to collect and monitor basically any of your communications and share them freely with the government or with other companies, as long as they meet the very vague definition of “cybersecurity threats.”

From a statement (PDF) by the Office of Management and Budget:

“The American people expect their Government to enhance security without undermining their privacy and civil liberties. Without clear legal protections and independent oversight, information sharing legislation will undermine the public’s trust in the Government as well as in the Internet by undermining fundamental privacy, confidentiality, civil liberties, and consumer protections.”

I was pretty surprised that the Obama administration opposed SOPA and PIPA, and I’m glad that they have the same opinion of CISPA. It is a pleasant surprise that the White House values privacy and civil liberties when it comes to Internet security. If only they could have the same values about airport security, jail security, and health care…

Naomi Wolf wrote a great piece in the Guardian about last week’s Supreme Court ruling allowing strip searches for people accused of even the most minor offenses. She compares this decision to many other instances of forced nudity by totalitarian regimes, mentioning Nazi Germany, the slave trade, Guantanamo, the imprisonment of Bradley Manning, and, of course, the actions of the TSA in airports around the country:

“Believe me: you don’t want the state having the power to strip your clothes off. History shows that the use of forced nudity by a state that is descending into fascism is powerfully effective in controlling and subduing populations.

The political use of forced nudity by anti-democratic regimes is long established. Forcing people to undress is the first step in breaking down their sense of individuality and dignity and reinforcing their powerlessness.”

I couldn’t agree more with her. If I had to choose the worst violation of freedom that a government could commit against people, forced nudity would be it. This ruling, or anything that expands the use of strip searches, is an affront to liberty and is exactly the wrong direction for our society to go in.

H/T: The Humble Libertarian

More on the strip search ruling:

• Noah Feldman on why Justice Kennedy (and so many others) are OK with this invasion of privacy
• Glenn Greenwald on how Obama’s DOJ advocated for the ruling
• Andrew Rosenthal on “the right to strip”
• The Silver Underground on how cops dress as bunnies to catch people not wearing seat belts so that they can be ticketed (and possibly strip searched?)

What a bad ruling the Supreme Court made yesterday. In 2005, Albert Florence was arrested and spent 7 days in jail because police officers accused him of failing to pay a fine, despite the fact that he was carrying proof  in his glove compartment that he had paid it, and the fact that failure to pay a fine is not considered a crime in his state of New Jersey. In the words of the Supreme Court decision (PDF), this is what happened to him:

“At the first jail, petitioner…had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner…had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to life his genitals, turn around, and cough while squatting.”

Florence’s lawyers argued that it violates the Fourth Amendment to conduct strip searches without reasonable suspicion that the inmate is hiding something. But 5 of 9 Supreme Court justices ruled today that what happened to Florence is completely fine.

I completely disagree with them. A strip search is a severe violation of a person’s privacy, freedom, dignity, and sexual integrity. It should never be done to anyone who has not been proven guilty of a crime beyond a reasonable doubt, and even among convicted criminals, it should be done only to inmates who are known to pose a specific, truly dangerous threat…if even then. But the Supreme Court decision, as Justice Breyer pointed out in his dissent, would subject people to strip searches for merely being accused of ”such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.”

Breyer also wrote (correctly) that invasive seaches are “inherently harmful, humiliating, and degrading… And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.”

Strip searches, body cavity searches, and mandatory showers are all things that it is inappropriate for one person to do to another (or the government to do to a person) in a free society. In my opinion, to force someone to expose the most private parts of their body constitutes a form of sexual assault. The job of the prison system is not to prevent disease, lice, drug use, and danger at any cost, but simply to punish people who have committed crimes, or make sure that detainees awaiting trial don’t escape, while preserving everyone’s dignity.

The ruling was 5-4, with Justices Kennedy, Roberts, Alito, Thomas, and Scalia in the majority and Justices Breyer, Ginsburg, Sotomayor, and Kagan (didn’t think I’d ever say this but…good for them!) dissenting.

This case highlights a frustrating fact about today’s political landscape: neither the so-called “liberal” justices nor the so-called “conservative” justices are truly pro-liberty. I found myself agreeing with the skeptical questions that Alito, Scalia, Kennedy, and Roberts asked during the ObamaCare arguments last week, but vehemently disagree with the stance they took in the Florence case. It is strange that Justice Breyer, for example, could treat it as obvious that the government can force everyone to receive vaccines, but then so eloquently take the pro-liberty point of view about strip searches. We need to have more people in law and politics who are pro-liberty about everything – opposed to mandatory purchase of health insurance, mandatory vaccination, and suspicionless searches.

Read the decision and all the briefs here.

Sources: AP, Reuters, Washington Post

If you haven’t already, check out this viral video of a TSA agent patting down and swabbing a 3-year-old boy with a broken leg in a wheelchair. It was taken a couple of years ago but was just posted this weekend.

The boy’s father, Matt Dubiel, said to CNN:

“There is another human being putting their hands on my child. That is not acceptable. If he was putting his hands on my child at McDonald’s or anyplace else, we would immediately have him arrested and call the police…

I think the whole exercise was intrusive and disrespectful to a human being, and a 3-year-old human being.”

I couldn’t agree with him more.

I’m a little late with this news, but it’s too awesome not to point out. The blog TSA Out of Our Pants released a video showing how basically anyone can bring basically anything through a nude body scanner without detection. The trick? Carry it on your side.

So basically, not only is the government violating the Fourth Amendment, taking away the privacy and dignity of travelers, and spending huge sums of money on these scanners, but they don’t even work!

Visit TSA Out of Our Pants for the original post, FAQ, how the TSA is trying to stop the media from covering the story, and more. He totally deserves support for his activism and lawsuit against the TSA, which he hopes will go all the way to the Supreme Court.

After reading this article in the New York Times Magazine, I will never feel the same way about shopping at Target again.

“The desire to collect information on customers is not new for Target or any other large retailer, of course. For decades, Target has collected vast amounts of data on every person who regularly walks into one of its stores. Whenever possible, Target assigns each shopper a unique code — known internally as the Guest ID number — that keeps tabs on everything they buy. ‘If you use a credit card or a coupon, or fill out a survey, or mail in a refund, or call the customer help line, or open an e-mail we’ve sent you or visit our Web site, we’ll record it and link it to your Guest ID,’ Pole said. ‘We want to know everything we can.’

Also linked to your Guest ID is demographic information like your age, whether you are married and have kids, which part of town you live in, how long it takes you to drive to the store, your estimated salary, whether you’ve moved recently, what credit cards you carry in your wallet and what Web sites you visit. Target can buy data about your ethnicity, job history, the magazines you read, if you’ve ever declared bankruptcy or got divorced, the year you bought (or lost) your house, where you went to college, what kinds of topics you talk about online, whether you prefer certain brands of coffee, paper towels, cereal or applesauce, your political leanings, reading habits, charitable giving and the number of cars you own.”

When Target faced some backlash about this invasion of privacy (for example, after it sent baby coupons to the home of a pregnant teen whose family didn’t know she was pregnant), they decided not to scale back their information-collecting but to hide it from customers:

“The question became: how could they get their advertisements into expectant mothers’ hands without making it appear they were spying on them? How do you take advantage of someone’s habits without letting them know you’re studying their lives?”

The answer that Target devised was to send people combinations of behaviorally-targeted coupons and coupons that they knew the customers would never use, so that it would look like a standard, non-targeted set of coupons. As a Targer executive explained, “We started mixing in all these ads for things we knew pregnant women would never buy, so the baby ads looked random. We’d put an ad for a lawn mower next to diapers. We’d put a coupon for wineglasses next to infant clothes. That way, it looked like all the products were chosen by chance.”

Creepy, huh? What makes it creepier is that according to the article, all of this tracking is within the law.

This demonstrates to me, at least, that we need stronger laws against behavioral tracking, not only on the Internet but in physical stores like Target as well. Stores need to collect some information in order to function, for example, they need to run credit cards through a computer in order for people to pay, and cashiers need to see what a customer is purchasing inorder to ring up the transaction. It also makes sense for stores to track which items are the most popular, which items are returned the most often, in which seasons certain items are most frequently bought, and other general statistics. But in my opinion, unless customers consetnt, it is not okay for stores to create profiles of individuals, in other words to connect information about what a particular customer purchased from one visit to the next. If someone wants to consent to being tracked, perhaps in exchange for coupons or other discounts, fine. (Although there is a fine line between this and punishing people who do not want to be tracked by charging them higher prices, which is not fine.) But for businesses to track personal information about their customers without giving them any meaningful choice in the matter violates people’s rights to privacy and liberty.

The Federal Bureau of Investigation and Department of Justice have been distributing flyers to various businesses warning them about things that they should consider “suspicious” and alert law enforcement about. You can view them all at Public Intelligence. Some examples of actions considered suspicious:

• “Using cash for large transactions or a credit card in someone else’s name”
• “Travels illogical distance” (to stores, Internet cafes, etc.)
• “New customer who is not from the area”
• “Reluctance to provide complete personal information” or “demands identity ‘privacy’”
• Purchasing unusual combinations of items
• Purchasing large quantities (or small quantities on multiple occasions) of items
• Storing items in unusual containers
• For beauty/drug suppliers: “Only chemicals and no other beauty supplies purchased,” or “asks about boiling or making liquid more concentrated.”
• For electronics stores: “Purchases quantities of prepaid or disposable cell phones,” or shows “unusual interest” in voice or data encryption, VOIP, voice privacy, means to shield IP address, or tracking of phone locations.
• For farm supply stores: “Possessing little knowledge of crops, soil composition, field size, application methods, or fertilizers” or “failing to state legitimate agricultural use for product.”
• For financial institutions: “A lack of evidence of legitimate business activity,” “unusual mixed deposits of money orders, third-party checks, and/or payroll checks into a business account,” “transactions being conducted in bursts of activities,” or “bulk cash and monetary instrument transactions.”
• For hobby shops: “Inquiring about remote controls and model aircraft payload capacity and maximum range,” “possessing little knowledge of the activity for which the purchase is intended,” or “demonstrating no interest or enthusiasm for the hobby or sport.”
• For home improvement stores: Purchasing “large quantity of watches, electronic timers, or kitchen timers,” “night-vision equipment and camouflage apparel,” or “pipe(s)…when vague about their use.”
• For hotels, “Requests specific room assignments or locations,” “refuse cleaning service over an extended time,” “use entrances and exits that avoid the lobby,” and “do not leave their room.”
• For Internet cafes: “Are overly concerned about privacy, attempts to shield the screen from view of others,” “always pay cash,” or “signs on to Comcast, AOL, etc.”
• For military surplus stores: “Make bulk purchases of items to include weatherproofed ammunition or match containers, Meals Ready to Eat, night vision devices, night flashlights, gas masks, high capacity magazines, bi-pods or tri-pods for rifles.”
• For rental properties: “Refuse maintenance or service over an extended time” or “receive an unusual amount of package deliveries.”
• For storage facilities: “Discarding clothing or shoes in new condition,” “entering or leaving storage facility at unusual times,” or “avoiding contact with rental facility personnel.”

Under this initiative, called Communities Against Terrorism, store owners are also encouraged to “require valid ID from all new customers” and “keep records of purchases.”

At least they remember to add, “Some of these activities, taken individually, could be innocent,” and “It is important to remember that just because someone’s speech, actions, beliefs, appearance, or way of life is different; it does not mean that he or she is suspicious.”

But still, people should not be as paranoid and nosy as these flyers encourage them to be. Terrorism does happen, but it is rare, and preventing it should not come at the cost of people’s anonymity and privacy. No one should have to present an ID to buy something in a store, and stores should not track what people purchase any more than is needed to keep track of their inventories or learn general sales trends. Stores, airports, banks, and the other establishments targeted by these flyers are public places, so no one can expect to have complete privacy there. But I would not want to live in a society where, whenever someone is out in public, their actions are scrutinized and monitored to make sure that they conform to what is considered “normal.” People already have too little privacy in what we do, what we say, where we go, and what we buy. We need to push back and demand a greater sphere of our lives within which we can act in anonymity and therefore true freedom.