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?)

The Boston Phoenix recently did an interesting front-page article about the police investigation into the “Craigslist killer” case three years ago. Among the most noteworthy (and creepy) things that came out in the article was the Boston Police Department’s subpoena of presumed (although never actually found guilty in court) killer Philip Markoff’s Facebook account.

The documents sent to the cops include all the wall posts that Markoff made, all the photos he uploaded or was tagged in, a list of his friends, and all of the times he ever logged in and IP addresses he used. What makes it even worse is that, if the Markoff case is any example, subpoenas don’t just invade the privacy of the person under investigation, they also reveal information about that person’s friends, who most likely have nothing to do with the suspected crime.

As Chris Matyszczyk at CNET points out,

“The joy of Facebook — for those who find it joyous — is that it provides a vehicle for the sheer spontaneity of communication. You want people to make contact with your life, your friends, your happenings, your feelings, even. You want them to do it as soon as possible.

However, it’s not like normal human spontaneity, which can dissipate and become a memory. It’s recorded.”

Facebook does not notify users when their information is subpoenaed, nor is it even willing to say how many subpoenas it has received or responded to over the years. In other words, law enforcement could be poring through your Facebook data right now, and you wouldn’t even know it.

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

On Friday, a jury in New Jersey convicted Dharun Ravi of several counts of invasion of privacy, bias intimidation, and witness and evidence tampering for spying on his college roommate, Tyler Clementi. The case would be nowhere near as highly-publicized as it is, and likely would never have become a criminal case at all, if it weren’t for Clementi’s suicide shortly after the spying, in September 2010. Because Clementi was gay and Ravi had spied on him kissing another guy, his death became symbolic to many gay rights and anti-bullying advocates who demanded (rightly) that something be done to fight back against bullying and harassment. Was Ravi’s conviction – which could result in deportation and/or jail time – the right way to fight back? In some respects, yes; in other respects, no.

Ravi faced 13 main charges and was convicted on all of them. Two invasion of privacy charges were for using a webcam to spy on Clementi and his guest engaging in intimate contact without their consent, two more invasion of privacy charges were for making it possible for others to view the webcam feed, and four attempted invasion of privacy charges involved trying to do the same on a different occasion. Seven additional counts involved deleting tweets and text messages, lying to police, and trying to influence others in what they told police, in order to impede the investigation.

On top of all these charges, the invasion of privacy charges carried various counts of bias intimidation, alleging that either Ravi’s goal was to intimidate Clementi because of his sexual orientation, or that he knew Clementi would be intimidated because of his sexual orientation, or that Clementi ended up being intimidated and reasonably believed that he had been targeted because of his sexual orientation. The jury convicted Ravi of at least one of these bias intimidation counts for each invasion of privacy charge, for a total of 24 convictions on 35 total charges.

See a breakdown of all the charges here.

First of all, I agree with the prosecutor’s and the jury’s harsh response to Ravi’s actions to the extent that it is important to treat mental and emotional harm as seriously as physical harm. Legal systems tend to treat things as a violation of a person’s rights only if they physically hurt the person or cause them to lose property or money. But harassment, humiliation, exclusion, and insults can be every bit as harmful as theft, vandalism, or assault, and perpetrating them against innocent people is equally horrible. Bullying violates the rights of its victims, and the legal system should act accordingly.

In Ravi’s specific case, I think it is completely appropriate for him to be punished for watching Clementi (above) and his guest kissing without their permission, and especially for inviting others to do the same. The details of the case are not as clear cut as many initially believed (including myself when I first blogged about it). Ravi’s defense team suggested that he was worried about theft because Clementi’s male friend was a few years older and looked “creepy.” And as Ian Parker at the New Yorker pointed out, no video was actually posted on the Internet, and there was no sex shown on the webcam, just kissing. But the evidence showed that Ravi intended to watch, and invite others to watch, Clementi and his male friend hooking up. He texted about a “viewing party with a bottle of Bacardi and beer,” tweeted, ”anyone with iChat, I dare you to video chat me,” and made sure the camera was pointing at Clementi’s bed. Ravi’s actions were simply wrong. People have a right to live free from secret surveillance, especially in their own rooms.

The one thing that I disagree with about this verdict is that it treats the crimes against Clementi as especially bad because he was gay. The basic principle behind hate crimes, of which the bias intimidation charges are an example, is that it is especially wrong to commit crimes against a person if you are motivated by hatred of them based upon a certain group that they belong to, such as their religion, race, nationality, gender, or sexual orientation. First of all, the phrase “hate crime” is a bit of a misnomer because it equates “hate” with prejudice against a group. But it is certainly possible to hate a person for reasons other than their membership in a historically-disadvantaged group. And if directed at a person who does not deserve it, this is every bit as horrible as group prejudice. For example, I was bullied in middle school because I preferred to wear dresses and skirts instead of jeans, was shy and quiet, didn’t listen to “cool” music, didn’t use the latest slang, and was interested in “geeky” things like history and books. As far as I know, I was not the victim of any crimes currently on the books, but had I been, this would not meet the criteria for a hate crime, and so the perpetrators would not face an enhanced sentence. The fact that I was targeted because of who I am as an individual, as opposed to a group that I belong to, does not make the bullying any less hurtful, the motivations behind it any less heinous, or the bullies any less deserving of punishment.

The bottom line is that bullying innocent people and violating their privacy should be treated harshly by the legal system, no matter what the victim’s religion, race, nationality, gender, or sexual orientation.

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.