Now the U.S. Supreme Court has ruled that’s unconstitutional. According to the story, “Justices even said police cannot check a cellphone’s call log, saying even those contain more information that just phone numbers, and so perusing them is a violation of privacy that can only be justified with a warrant.”

Chief Justice John Roberts wrote for the unanimous court:

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Right. The Fourth Amendment is clear:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Since 9/11, and even before, the Supreme Court has been too lax in protecting the Bill of Rights. Maybe things now are turning in a new direction, and away from the slippery slope toward a Stasi police state.

]]> https://calwatchdog.com/2014/06/25/no-more-cop-cell-phone-snooping/feed/ 19 65172 https://calwatchdog.com/2014/05/02/ca-lawmakers-look-to-pull-plug-on-nsa-snooping/ https://calwatchdog.com/2014/05/02/ca-lawmakers-look-to-pull-plug-on-nsa-snooping/#comments Fri, 02 May 2014 22:15:24 +0000 http://calwatchdog.com/?p=63181 Big Brother might have to close his eyes.

A new bipartisan bill would prohibit California’s cooperation with warrantless snooping by the National Security Agency.

Senate Bill 828 is by state Sen. Ted Lieu, D-Redondo Beach. Invoking the Bill of Rights’ Fourth Amendment protections against unreasonable searches and seizures, SB828 would affect the state, its employees, its governmental subdivisions and even corporations providing services for the state.

According to the language of the bill, all those affected are barred from “materially supporting or assisting” any “federal agency or federal agent in collecting electronic data or metadata of any person pursuant to any action not based on a warrant that particularly describes the person, place, and thing to be searched or seized.”

That broad wording would extend legal protections against surveillance to non-citizens and citizens alike. Snooping with a warrant still would be allowed.

Additionally, SB828 bans the use of electronic data and metadata obtained without a warrant in state and local criminal investigations or prosecutions.

Dubbed the “Fourth Amendment Protection Act,” the bill would put California on a collision course with a major federal policy for the second time in recent years. Last October, the lawmakers passed the Trust Act. It introduced sweeping measures to shelter illegal immigrants from federal action.

Over strenuous objections of those favoring tighter immigration laws, Gov. Jerry Brown signed the Trust Act with a suite of other bills that activists estimated would keep some 20,000 undocumented people out of federal detention every year.

Anti-surveillance momentum

Nationally, California legislators stuck their necks out with the Trust Act.

But with SB828, they wouldn’t be alone. One of the bill’s two co-sponsors, State Sen. Joel Anderson, R-San Diego, invoked similar measures passed by state legislatures in Arizona, Maryland, Tennessee, Utah and Washington.

Anderson explained the bill “would stop NSA access to DMV records, Covered California records, state records, even voting records that might otherwise be confiscated at will.” Although “unequivocally dedicated to stopping terrorism,” Anderson insisted that Americans “must be ever vigilant that our desire for safety does not come at the expense of the freedoms and liberty our enemies seek to destroy.”

A press release describing the impact of the bill was also issued by Lieu. “State-funded public resources should not be going toward aiding the NSA or any other federal agency,” he said, in “indiscriminate spying on its own citizens” that “violates the Fourth Amendment.”
 
Last year, the release noted, Lieu successfully spearheaded a bipartisan resolution “urging Congress to reconsider its vote for the NSA to stop its unconstitutional practices.” That resolution, SR16, also called on President Obama to end “the NSA’s blanket, unreasonable, and unconstitutional collection of all Americans’ telephone records,” singling out overbroad uses of the PATRIOT Act for reform.

Earlier this year, Anderson and Lieu teamed up to push Sacramento to cut off the NSA from access to basic utilities and services in California. Then as now, Lieu explicitly compared NSA surveillance to the federal government’s wholesale detention of Japanese-Americans during World War Two, warning that the “last time the federal government massively violated the U.S. Constitution, over 100,000 innocent Americans were rounded up and interned.”

California leadership

As the debate continues in Congress over the scope and force of federal law surrounding America’s surveillance regime, elected officials in California face an opportunity to take a notable lead on the issue.

Democratic Sen. Dianne Feinstein, head of the Senate Intelligence Committee, was recently at the center of an unusually fierce dispute with the CIA over detention and interrogation. The controversy came to a head when Feinstein discovered that the CIA had secretly spied on Senate staffers working on a committee report critical of the agency’s practices.

Previously, Feinstein herself had been criticized for a lax attitude toward surveillance issues. The last time the Foreign Intelligence Surveillance Court turned down a government request to conduct electronic surveillance was in 2009.

Events will unfold quickly in California once legislators determine whether or not to support the bill. If passed, SB828 would go into immediate effect as an “urgency statute.”

SACRAMENTO — Two Republican members of the California Assembly recently authored resolutions encouraging Congress to halt the eavesdropping on the America people by the National Security Agency. Both resolutions were smacked down Tuesday in the Assembly Judiciary Committee, whose hearings I attended. The Democratic majority refused even to vote on the resolutions, claiming more information was needed.

“What this says is, ‘We don’t want to error on the side of liberty,’” Assemblyman Tim Donnelly told me. A Republican from Twin Peaks, he authored Assembly Joint Resolution 27 to encourage Congress to pass and President Obama to sign into law the “Limiting Internet and Blanket Electronic Review of Telecommunications and Email Act.”

AJR 26, by Assemblyman Travis Allen of Huntington Beach, calls on the president and Congress to make the protection of civil liberties and national security equal priorities, and to immediately discontinue any practices contrary to the Fourth Amendment of the United States Constitution. That amendment allows searches only with a warrant from a judge.

Leading up to the hearing, both bills had bipartisan support, the backing of the American Civil Liberties Union, and a Democratic co-author.

However, Assemblyman Bob Wieckowski, D-Fremont, chairman of the Assembly Judiciary Committee, removed his name as co-author of Donnelly’s bill, and strongly recommended to committee members they not vote on the resolution.

Donnelly attributed Wieckowski’s change of heart to a case of partisan politics, specifically on orders “from the powers that be.” According to Donnelly, Assembly Speaker John Perez, D-Los Angeles, was not happy Wieckowski had his name on a Donnelly bill.

I called Wieckowski, who is an attorney, to discuss why he removed his name from AJR 27, but did not receive a return call.

What’s this all about?

In June, Edward Snowden, an American computer specialist who worked as a contractor for the NSA, admitted leaking secrets about classified U.S. surveillance programs, along with documents detailing U.S. telephone and Internet surveillance efforts, to the Washington Post and Britain’s Guardian newspaper. When the news broke, Americans were in an uproar. Charges of spying on Americans were levied against the NSA by politicians and civil libertarian groups.

The NSA had obtained direct access to Google, Facebook, Apple and other U.S. Internet companies, according to the documents first provided by Snowden to the Guardian.

The NSA’s extensive access was originally enabled by changes to U.S. surveillance law introduced under President George W. Bush following the terrorist attacks on the World Trade Center on Sept. 11, 2001. And NSA access was renewed under President Obama in December 2012.

The Fourth Amendment

The Fourth Amendment guarantees, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Donnelly called the NSA spying practice “abusive” and “tyrannical,” and said his LIBERT-E Act had bipartisan support from hundreds of groups, including the Electronic Frontier Foundation, the American Civil Liberties Union and the Republican Liberty Caucus.

NSA audit confirms excessive snooping

There have been countless news stories about the NSA collecting and storing Americans’ Internet, phone and financial data, while claiming the information is needed to prevent or stop terrorist activity.

A May 2012 audit of the NSA found 2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution of legally protected communications, the Washington Post recently reported. “The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents.”

Allen said, “This revelation that the NSA has been collecting these records from unaware American citizens and ignoring court orders to cease their activities is raising questions and distrust amongst the public regarding the constitutionality of the government’s actions. AJR 26 appeals to the federal government to equally prioritize the need for national security against terrorist threats and the protection of every American citizen’s Fourth Amendment right to be free from unreasonable searches.”

What’s a government to do?

According to several news stories, more than one billion records a day are collected by the NSA in the name of “national security.” The excuse is that all that data is needed to preempt terrorist attacks.

Yet with all the federal muscle and high-tech surveillance available to the NSA, it was a citizen who found the Boston Bombers after three people were killed, and more than 260 were injured.

Both Allen and Donnelly reiterated to the Judiciary Committee they understand the federal government is responsible for protecting Americans from threats to national security, but must balance that with also protecting citizens’ constitutional rights to privacy.

“Our country was founded on the principles of protecting individual liberties and the inalienable rights of the people from the infringement of overreaching governments,” Allen said at the hearing. “Government should be transparent, strive for the highest level of integrity, and be held accountable to the public.”

But Assemblyman Ed Chau, D-Monterey Park, said there just wasn’t sufficient information for him to be able to make a decision. Other Democratic members of the Assembly Judiciary Committee echoed this sentiment, including Assembly members Roger Dickinson, D-Sacramento, Al Muratsuchi, D-Torrence and Wieckowski — all attorneys.

LOS ANGELES — Revelations about the federal government’s data mining through PRISM, the clandestine electronic surveillance program operated by the National Security Agency, have prompted a debate about possible government overreach and intrusion. The question about privacy is hardly new, but as we continue to create a de-facto surveillance society through every online purchase and Twitter post, intrusion has only become easier and expected.

In 1890 Louis Brandeis, a future Supreme Court justice, and Boston attorney Samuel Warren published an article, “The Right to Privacy,” in which they argued U.S. law should recognize privacy as a right and impose liability for violations of privacy. Brandeis and Warren, who decried the “yellow journalism” of the day, found much support because the public was learning to cope with new forms of technology. In a passage sounding as if it were written today, they explained:

“Now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation.”

An explicit right to “privacy” does not actually appear in the U.S. Constitution. There are, however, clear constitutional limits to intrusion into a person’s right to privacy.

The Fourth Amendment of the Constitution guarantees:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

Due to Supreme Court recognition, the Fourteenth Amendment also provides considerable due process right to privacy.

Trade secrets

The Supreme Court also recognizes rights in trade secrets and non-published literary materials, irrespective of whether or not those rights are intentionally or unintentionally infringed upon. Further, the court has no regard for the value these materials may have.

Brandeis and Warren contend that the recognition of this right stems from the protection of a private individual’s “thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts.” These items are described as private diaries or letters that need protection from unwarranted searches. The authors quote a Supreme Court case that considers a violation of privacy on these items to be a “breach of confidence” and an “implied contract.” In other words, individuals who send letters have an expectation that the letters will remain private.

The Supreme Court also defines violation of this idea as a breach of trust, because one person has trusted another not to publish private writings, pictures, or art, without their consent. The court, the authors write, attempts to protect an individual from having “facts relating to his private life, which he has seen fit to keep private” published by another, whether for personal gain or another intention.

As early as 1834, the United States Supreme Court is quoted recognizing that a “defendant asks nothing — wants nothing, but to be let alone until it can be shown that he has violated the rights of another.”  This idea is paraphrased as “the right to be let alone.”

Louis Brandeis also used the phrase “the right to be let alone” in his famous dissent in Olmstead vs. U.S. in 1928, the first wiretapping case heard by the U.S. Supreme Court. The court ruled in favor of the government in the wiretapping case, but proponents who claim a right to privacy from the government or other entities cite the “right to be let alone” till this day. U.S. Supreme Court decisions, moreover, show that this phrase has come to be associated specifically with preventing the government from invading privacy.

Modern rulings

Modern court rulings have not always abided by these rights. One such court ruling in 1983 permitted police, without a warrant, to plant a tracking device on a person suspected of drug possession to track the suspect without his knowledge. Courts today use the ruling, United States vs. Knotts, as a precedent to lend credibility to unwarranted GPS tracking. A suspect, therefore, does not have a recognized right to privacy in his or her car.

New electronic surveillance technologies over the last century have greatly reduced a person’s “right to be let alone.” Pervasive societal use of video surveillance technologies has virtually eliminated the expectation of privacy in many public locations, while video surveillance systems in private spaces continue to encroach upon rights. Consider, for instance, that some states will record individuals in a clothing store fitting room (to prevent thefts).

In the United States today, “invasion of privacy” is often a basis for court cases and legal pleadings. Modern tort law illustrates four categories that encompass the notion of privacy invasion:

* Intrusion of solitude: physical or electronic intrusion into one’s private quarters.

* Public disclosure of private facts: the dissemination of truthful private information that a reasonable person would find objectionable.

* False light: the publication of facts that place a person in a false light, even though the facts themselves may not be defamatory.

* Appropriation: the unauthorized use of a person’s name or likeness to obtain some benefits. 

California privacy

The good news is that some states explicitly recognize privacy. California is among these states. For instance, Article 1, Section 1 of the California Constitution describes privacy as an “inalienable right.” California’s SB 1386 goes further to guarantee that, if a corporation exposes a California resident’s information, this exposure must be reported to the citizen. Other states, such as Montana, have come up with similar measures in the privacy protection arena.

However, the state’s acknowledgement of privacy can only go so far.

On May 9, a California district court dismissed with prejudice a complaint against Delta Air Lines filed by California Attorney General Kamala Harris that alleged violations of the California Online Privacy Protection Act. The case, concerning Delta’s mobile app, was dismissed due in large part to the federal Airline Deregulation Act, which preempts Delta from adhering to California’s privacy law because the app constitutes a “service” that “is related to price, route, or service of an air carrier.”

California continues to pursue privacy policies, especially with wearable computers (particularly with regard to mobile apps). In January, Harris issued guidance on expectations of privacy from mobile applications.

But, as made clear the in the case with Delta, there are exemptions.

New threats

The new threat to privacy is going to be linked to wearable computers or devices carried on one’s person, such as Google’s Glass. These technologies constantly record and store information. Currently, there are no statutes or decisions directly regulating a wearable computer’s intrusion into personal privacy rights.

Brandeis and Warren called for new laws to catch up with new forms of technology and their infringement on privacy in the 1890s. More than 100 years later, the same concerns remain. Computers, mobile phones, online applications and CCTV cameras are just a few of the widespread technological innovations that raise questions about privacy.

Most phones boast touch display menus, wireless Internet dating networks, GPS sensors, voice recognizers and cameras. There are no laws that prevent companies from sharing information about a person’s browsing habits, telephone calls and locations.

By John Seiler

Some good news: Nullification is spreading. AP reports:

“JEFFERSON CITY, Mo. (AP) — Imagine the scenario: A federal agent attempts to arrest someone for illegally selling a machine gun. Instead, the federal agent is arrested – charged in a state court with the crime of enforcing federal gun laws.

“Farfetched? Not as much as you might think.

“The scenario would become conceivable if legislation passed by Missouri’s Republican-led Legislature is signed into law by Democratic Gov. Jay Nixon.

“The Missouri legislation is perhaps the most extreme example of a states’ rights movement that has been spreading across the nation. States are increasingly adopting laws that purport to nullify federal laws – setting up intentional legal conflicts, directing local police not to enforce federal laws and, in rare cases, even threatening criminal charges for federal agents who dare to do their jobs.

“An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver’s licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.”

Right on! And I’m proud that left-wing California took the lead in nullification with Proposition 215, way back 17 years ago.

Now, there’s more our state could do. Here are the very first words of the California Constitution:

“ARTICLE 1 DECLARATION OF RIGHTS

“SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

Note the last word: “privacy.”

As everyone has been learning from the recent scandals, the U.S. government has been spying on all of us continually, in complete violation of the Bill of Rights. What the California Legislature should do is pass a law implementing the “inalienable right” to “privacy” in our state by banning our high tech companies — Apple, Google, Facebook, Twitter, etc. — from cooperating with the U.S. government unless the Fourth Amendment is strictly followed. That amendment mandates:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

And the state law should specify that the last words, “particularly describing the place to be searched, and the persons or things to be seized,” ban the NSA, FBI and other Stasi Super Snooper State agencies from grabbing any Big Data, such as all phone and other records from Verizon, Google, etc.

And the law should specify that, if the NSA, FBI, etc. do not comply, then the California Highway Patrol and the California National Guard will arrest the police-state Stasi offenders and prosecute them under our state laws.

By John Seiler

The fascist USA Patriot Act (really, TRAITORS’ Act) was imposed on us in 2001, when President Bush and the Republicans and Democrats in Congress panicked after 9/11. It lets the government listen to your conversations or read your emails any time it wants, with out a search warrant, in blatant violation of the Fourth Amendment right to protection against “unreasonable searches and seizures.”

We need to go back to having police like the great Sheriff Andy of the “Andy Griffith Show.” He just died. I miss him.

Why can’t our cops be like him, instead so many being like these?

Here’s Sheriff Andy explaining privacy rights and due process to his son, Opie:

H/T to LewRockwell.com