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This post announces an ambitious and possibly quixotic effort — the attempt of a legal layperson like myself to launch and carry on a discussion about Benjamin Wittes’ “Law and the Long War: The Future of Justice in the Age of Terror,” published in 2008.

Luckily, I’ll be joined in this discussion by my friend “The Talking Dog,” whose legal acumen and training — as well as self-deprecating wit and engaging writing — are always in evidence at his blog of the same name.  “TD’s” interviews of lawyers, policy makers, human rights leaders (most recently with NYU’s Karen Greenberg), and even Guantanamo detainees have been genuine journalism, and are among the finest things the American blogosphere has produced.

Our plan is to take the book chapter by chapter, at no precise schedule other than to take the chapters in sequence.  We hope readers will check Wittes’ book out from the library, borrow it from a friend, or buy a copy for themselves, so they can read along with us and join the discussions we hope for.

We’ve tentatively decided to divide the chapters up as follows:

Announcements - here at newsrackblog and the talking dog
Introduction - discussions at both newsrackblog and the talking dog
Chapter 1.  The Law of September 10 - discussion here at newsrackblog
Chapter 2.  The Administration’s Response - discussion at talking dog
Chapter 3.  The Real Guantanamo - discussion at the talking dog
Chapter 4.  The Necessity and Impossibility of Judicial Review - discussion here at newsrackblog
Chapter 5.  The Case for Congress - discussion here at newsrackblog
Chapter 6.  The Twin Problems of Detention and Trial - discussion at the talking dog
Chapter 7.  An Honest Interrogation Law - discussion at the talking dog
Chapter 8.  Surveillance Law for a New Century - discussion here at newsrackblog
Conclusion - discussions both at newsrackblog and the talking dog

To leave some time for readers to join in (and for me, at least, to gather my thoughts), our first posts about Wittes’ introduction will be sometime around the middle of next week.  At this blog, this post will serve as one “home page” for the overall effort, and the outline above will link to each post as it is written.  We’ll also try to provide “prior chapter” and “next chapter” and other useful navigational links within each post, time permitting.

===

Why is this worth doing?  I’m tempted to simply answer: what could be more important?  Whether it’s always clear or not, our lives and our rights are both at risk.  We have to evaluate those risks, and decide what to do about them.

For my part, though, this is also partly just an attempt to become more “fluent” in the legal underpinnings of the debates about the habeas corpus and other human rights of detainees, the costs and benefits of the expansion of executive powers,  and the conduct of international relations and military force in this so-called “long war” of ours.

There are also more immediate reasons to do so: Wittes and his book have proved quite influential, perhaps especially of late.  On its publication, the book merited extended discussion at numerous legal blogs, and gained respectful and often warm reviews in the popular media and the academic press.

Read the rest of this entry »

The Takoma Park Police Department has issued draft guidelines for the proposed license plate scanner system that are the next best thing to no scanner at all (still my preference): the default policy will be no storage of “scan files” once a given operator’s shift is over.  From the draft:

06 Limitations on Usage:
A. Only officers or employees certified by a Command level officer will be permitted to access the Extract Downloads, develop hot lists, or operate the device. Any such operator will be required to possess authorization to access NCIC and MVA files via the MILES system. Security of the extract downloads will be consistent with other directives, rules, regulations, laws and procedures applying to the use of information from those databases, and will be the responsibility of the operator.

B. Scanning Missions will not last any longer than the shift duration of the operator. If a successive officer takes over use of the vehicle in which the ALPR Scanner is mounted, or otherwise takes over use of the device, they will initiate a new scanning mission after development of a new hot list from the latest extract downloads.

C. Scan Files developed during the mission will be deleted from the device upon completion of the operators shift.

D. It will be a violation of this policy and procedure to download any scan file, without the expressed authorization of the Chief of Police.[...]

(Emphasis added.)  The draft policy was discussed at Monday’s Takoma Park City Council meeting (video link).  Chief Ricucci had courteously sent me a copy of the draft policy a few days earlier, and I was able to propose a few suggestions to strengthen the policy during the general public comment period (and by e-mail).

Chief among these was that the police notify the City Council when the chief of police “expressly authorized” exceptions to this and other default policies (having to do with database lists provided to the scanner, and sharing data with other agencies.)  I was pleased that councilmember Josh Wright and other councilmembers took up some of these suggestions, and that police officials attending the meeting (including Chief Ricucci and Captain Coursey, who attended the forum) appeared to have no problem with them.

I remain skeptical of the need for this system and question the civic wisdom of giving such potentially sweeping surveillance power to law enforcement.  But this outcome, if it holds, is the next best thing to no scanner system at all: one that forgets what it saw at the end of the day.  I don’t like the relatively unencumbered wiggle room for downloading scan files on authorization of the chief of police, but a reporting requirement would at least give people a chance to know that was happening so they could come to a judgment about that.

I may have more to say after reviewing the video of the meeting; it isn’t crystal clear to me what will happen next.  While I’m fairly sure there will be a revised draft policy incorporating some of the suggestions made during the work session, I’m less sure whether that will lead to an immediate vote on the purchase.  It appears that the grant money for the purpose must be collected soon, so that Council — by and large, more sympathetic to the system than I am — feels an incentive to move quickly.

For now, I guess I’ll call this a small win… tempered with regret that we’re choosing to surveille ourselves this way.  But I also appreciate that my concerns were listened to, both by the police and by the City Council.

Legislative efforts to prevent a repeat of the infamous Maryland State Police spying scandal are coming to a head this week.  Naturally, there are competing bills, and the founding fathers wouldn’t be surprised at how they compare — Governor O’Malley’s preferred bill (HB 311/SB266) stands for “we’ll handle this from here,” while the bill by progressive legislators like State Senator Jamie Raskin and Delegate Sheila Hixson (HB 182/SB256) stands for “no you won’t.”

While the Frosh/O’Malley bill would be better than nothing, it leans dangerously far in the direction of permitting a good deal of what occurred during Maryland State Police’s “amok years” in 2005 and 2006,* and in leaving the door as widely ajar as possible for as much future covert surveillance as possible, all under the catchall term “legitimate law enforcement.” For instance:

(D) The Department shall:
(1) conduct all investigations involving First Amendment activities for a legitimate law enforcement objective [...]

(F) An investigation involving First Amendment activities shall be terminated when logistical leads have been exhausted and no legitimate law enforcement purpose justifies the continuance of the investigation. [...]

(K) Nothing in this section may be construed to prohibit a Department employee, in the course of the employee’s duties, from visiting any place… that is open to the general public… if the Department employee has a legitimate law enforcement objective.

That might not sound so bad until you realize that what’s legitimate and what isn’t is precisely what was and is at issue — and that it remains completely undefined in this proposed legislation. The Baltimore Sun reported that State Senator Jamie Raskin, by contrast, rightly believes that police need an “explicit guide,” adding:

“Having them write their own rules is not the solution,” Raskin said. “That was the problem.”

Indeed, even “writing their own rules” is being generous — the O’Malley bill doesn’t even seem to require explicit State Police revised rulemakings, settling instead for vague directives about how it might go about its business. Raskin’s bill is better from start to finish, providing specific descriptions of covert surveillance, and requiring specific actions whenever covert surveillance of “protest or advocacy entities” or individuals is envisioned.  To wit,  the State Police chief would have to make “a written finding, including specific factual determinations… that the use of the covert technique is justified because (1) a reasonable, articulable suspicion of a present or planned violation of the law; and (2) a less intrusive method  is not likely to yield satisfactory results .”

As the ACLU of Maryland writes — in a form e-mail you can add your name and thoughts to –

It is disturbing that the Administration is promoting a bill (HB 311/ SB 266) that fails in numerous ways to set the necessary standards to protect the First Amendment while opposing legislation that does establish strong standards, HB182/SB256. In fact, the Administration bill would actually condone some of the worst spying that has occurred.

Read the rest of this entry »

A forum about the civil liberties implications of a proposed license plate scanner system (announced here, on community listservs, and on fliers) was held in Takoma Park on Wednesday, February 25, 2009.  A video of that forum was recorded and uploaded by my friend Michelle Bailey (”Takoma Videotaping“).

Forum participants included:

• [02:30] Thomas Nephew (organizer)
• [06:47] Sharon Bradford Franklin (The Constitution Project)
• [21:10] David Zirin (The Nation, Campaign to End the Death Penalty)
• [30:23] Johnny Barnes (National Capital Area ACLU)

I’ve compiled a draft transcript of the forum.  The times there (and above) indicate the beginning of the speaker’s comments. A Q&A session began at around 42:23.

Takoma Park City Council member Terry Seamens, Public Safety Committee chair Chuck Thomas, and Takoma/Silver Spring Voice publisher/editor Eric Bond were in the audience, as were Takoma Park Police Department’s Chief Ronald Ricucci and Captain Edward Coursey.

Other resources for this forum:

• A resource page about the Takoma Park license plate scanner issue (press release, grant application, worksession video and documents, other links)
• My introduction to this forum, and my blog post about this forum
• Constitution Project’s “Guidelines for Public Video Surveillance” (.PDF, 104 pages)

The panel
From the left: me, Sharon Bradford Franklin, senior
counsel at the Constitution Project, David Zirin
(The Nation, Campaign against the Death Penalty),
Johnny Barnes, executive director of the National
Capital Area ACLU.
Originally uploaded by Thomas Nephew
For a slideshow of all forum photos, click here.
[All photos are by Madeleine Nephew
-- thank you, Maddie!]

As advertised, I was joined by Sharon Franklin, David Zirin, and Johnny Barnes on Wednesday evening for a forum about the TPPD license plate scanner proposal.  (For background, see my prior posts on this issue or this resource page.)  [UPDATE - video here] [UPDATE - transcript here]

I thank each of them very much again for coming; their discussions were on point and helpful, as was a lively question and answer period with the audience, which included one councilmember, a public safety committee chair, and — by advance request  — Chief Ricucci and Captain Coursey from the police department.

My publicity efforts were not as successful as I’d have liked, but both local press and friends were on hand; my friend Michelle videotaped the proceedings as did the ACLU; assuming there aren’t technical difficulties, that will eventually be online for others to view for themselves.

I prepared some introductory remarks.  An excerpt:

…So far, we have had an upside down process: a grant application for a device before a community decision to seek one, an agency drafting policy after the money is in hand rather than a legislative body doing so before, all before consideration of alternatives.

Some say I’m making “much ado about nothing.” I disagree, and I think after tonight many of you will as well. A decision to subject ourselves to automated surveillance ought to be a very, very hard decision, not an easy one. I think it moots the 4th Amendment and chills freedom of speech and of assembly — especially in a permissive legal environment where we will have little control or even knowledge of how that surveillance is expanded, reused, or shared with federal agencies armed with “National Security Letters.” Even if approved — as I personally hope it will not be — hard questions would remain: when and where to deploy it, which wanted tag databases to download, what kind of safeguards to set up and who will run them, what penalties to impose if those safeguards are violated.

We in Takoma Park do not need to look to what’s merely permissible to police departments. We can also say how we want our community to be, and what safeguards on our rights we will insist on.

The forum produced a few new points of specific information from my perspective.  First, Captain Coursey noted that the city attorney was looking into the question of whether data collected in this fashion could be compelled to be divulged to other agencies.

Second, Chief Ricucci and Captain Coursey appeared to me to be saying that (a) the grant application did not request funding for so-called “back office” hardware and software that would facilitate the reanalysis of stored data, and (b) that they were thereby saying they did not envision doing so.

While that was comforting to me, Captain Coursey also clearly wanted the door kept open for that, pleading for no “rush to judgment” on that score.  Also, the lack of dedicated funding for storage isn’t all that telling.  As the TPPD’s own press release last December stated, “50,000 and 60,000 plate reads equal one gigabyte of hard drive space.” Assuming the interface with the squad car device can be bridged, off-the-shelf PCs could store millions of images; assuming the scanned image tag/time/location records can be downloaded as well, even more simple data records could be stored.  The software requirements are probably not insurmountable either; a simple file/directory system might do, or records could be stored in a conventional database.

But given the open, frank, and cooperative impression both officers made on me and the rest of the audience, perhaps both the press release and the worksession discussion of storage and reanalysis were more about capabilities than firm intentions.  I’m willing to believe they don’t seek this, and that they can support an explicit “no storage” provision by City Council for the device.
Read the rest of this entry »

The Washington Post’s lead editorial today is “Mr. Lahood’s Good Idea” — a followup to last week’s news that Transportation Secretary Lahood discussed a “mileage tax” in an AP interview as a new means of paying for the country’s transportation system. The Obama administration rather firmly shot down the idea: “It is not and will not be the policy of the Obama administration,” White House press secretary Robert Gibbs said when asked at his daily briefing about LaHood’s remarks, which were made in an interview with the Associated Press.

The Post’s editorial board is concerned that the Obama administration was too hasty:

As automobiles become more efficient and make use of new fuels, the gas tax — which, we note here for the umpteenth time, should be raised — will be less effective in capturing revenue. Mr. LaHood’s comments reflected what many transportation experts and economists are coming to believe: A tax on vehicle miles traveled, or VMTs, is the most promising, fairest, most environmentally responsible replacement for the gas tax.

It’s hard to figure how any replacement of a gasoline tax would be environmentally responsible, but a tax on VMT — the same whether you’re driving a Hummer or a smart car — would be among the least attractive options, it seems to me.  It’s also par for the Post in disingenuousness to “note for the umpteenth time” that gas taxes should be raised …when Lahood himself ruled that out in the very same interview.  You’d think that might have been their topic du jour if they actually gave a hoot.

But for me, the real kicker is how the tax could be levied:

Most proposals require a GPS-like “mileage-counter” to be installed in vehicles. When drivers stop to fill up, a tax based on the miles they’ve driven would be added to their bill in place of a gas tax. The tax rate could be adjusted based on whether someone was driving in rush hour or off-peak times, on clogged freeways or less busy roads.  [...]

Some opponents fear that the government could use the mileage counters to monitor drivers.

As Dr. Watson is rumored to have said from time to time: no sh*t, Sherlock. Lahood and the Post’s brain wave is based on a 2007 feasibility study done in Oregon at the behest of Democratic governor Ted Kulongoski.  The point of the GPS system (as opposed to just reading the car’s odometer in some fashion) is mainly to help tell vehicle miles traveled in Oregon from those traveled elsewhere, but determining the particular roads traveled (for rate adjustment purposes) could be determined with the same technology.

Now it appears to be true that the on-board device designed for the purpose really only stores the “Oregon miles traveled.”  But no self-respecting surveillance system would focus at that end of the transaction anyway.  As the Seattle Times’s Eric Pryne reported in 2004:

Such assurances don’t satisfy David Sobel, general counsel for the Electronic Privacy Information Center in Washington, D.C. Oregon’s prototype probably presents little threat to privacy, he says — but government officials almost certainly would want something more. The state would need a record of a car’s movements to document the mileage-tax assessment if someone contested it, Sobel says: “Just from a due-process perspective, there will be pressure to retain data.“

And thanks to our ever expanding views of what the federal government is entitled to secretly acquire and peruse, those data might as well then be emailed directly to the Department of Homeland Security or the FBI, to be easily matched up with credit card, financial, DMV, and/or any other data these agencies get their hands on for whatever flimsy reason.

Is there a problem to be solved?  Sure; even if you’re a vigorous advocate of mass transit, you may well agree that we have to keep a lot of major, existing roads in good repair — and apparently the federal Highway Trust Fund piggy bank for that is running dry.  But if so, there are a number of non-surveillance based solutions: increase the tax base for the fund, stop building new roads and think hard about which existing ones to prioritize, access other taxes, or — I’ve got it! — set up something I’m going to call “toll booths”, an admittedly science-fictiony idea where people would stop and pay for the wear and tear they cause to the road they’re on.

The more I look around, the more keeping up with the million and three nitwit creeping surveillance ideas out there is looking like a full time job.   One advantage I’ll have, though, is that the Washington Post’s editorial board is sure to be touting the craziest ones in lead editorials.

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EDIT, 2/26: “you may well agree” for the presumptuous “if you’re honest with yourself you know”

I guess I thought this would get a little more attention than it has.  On Tuesday, the Washington Post’s Lisa Rein reported:

The U.S. Department of Homeland Security tracked the protest plans of a peaceful Washington area antiwar group and passed the information to the Maryland State Police, which had previously labeled the activists as terrorists in an intelligence file. The federal agency obtained two e-mails containing plans for upcoming demonstrations at a military recruiting center in Silver Spring in 2005, the first indication that DHS might have worked with the police to monitor advocacy groups.

While a DHS spokesman claimed the communications were “taken off the Internet,” that is disputed by Pat Elder, a leader of the group involved (the now dissolved DC Anti-War Network, or DAWN):

“They would have had to join our group as a member,” said Pat Elder of Bethesda, the leader of a national network that opposes military recruitment in high schools. He said he was in contact in 2005 with an activist in Atlanta about how to build the cardboard coffins frequently used by protesters against the Iraq war as a symbol of what activists have called needless military deaths.

The e-mails were forwarded to the Maryland State Police from a DHS office in Atlanta.

Nice database work!
It’s interesting how well coordinated the passage of information was.  It’s as if… as if… why, it’s as if there was some kind of federal database that would enable far-flung agencies to be aware of a mutual interest in a given “terrorist” like Mr. Elder once he was entered in the system.

Read the rest of this entry »

You had to live - did live, from
habit that became instinct - in
the assumption that every sound
you made was overheard, and,
except in darkness, every
movement scrutinised.
– “1984″, George Orwell

Suppose that the local police in
a particular jurisdiction were to
decide to station a police car at the
entrance to the parking lot of a
well patronized bar from 5:30 p.m.
to 7:30 p.m. every business day for
the purpose of making a list of the
license plates of cars that were
driven in and parked in the lot
during that time… I would guess
that the great majority of people
who might have the question
posed to them would say that
this is not a proper police
function…
– William Rehnquist, 1974

They who can give up essential
liberty to obtain a little temporary
safety, deserve neither liberty
nor safety.
– Benjamin Franklin

This page is a resource page about the proposed acquisition of a license plate scanner system by the Takoma Park Police Department.  I believe there are substantive civil liberties concerns with these systems.

Takoma Park

• Takoma Park City Council
• Press release, 12/17/08: “NEWS RELEASE - Takoma Park Police to Acquire License Plate Recognition Scanner“; my discussion.
• Grant application by TPPD to Maryland Governor’s Office of Crime Control and Prevention; my discussion.
• TPPD 2008 Annual Report: auto thefts down 24% from 2007 (before scanner proposal);  TPPD Bulletin summary: stolen cars rarely reported involved in other crimes; my discussion.
• City Council January 26 worksession:
  • Briefing memorandum (.PDF, 2 pages)
  • Video (worksession begins at 52:20); my discussion.
  • Transcript (partial: ~ first 17 minutes of the worksession)
• Selected relevant City Council resolutions:
  • October 28, 2002: opposing PATRIOT Act
  • November 3, 2008: re Maryland State Police spy scandal
• February 25 forum:
  • Video link; draft transcript
  • My introduction, my discussion
  • Coverage: Gazette, Takoma Voice
• April 13 worksession
  • Briefing memorandum; first draft policy proposed by TPPD
  • Video link (worksession begins at 1:09:11, my public comments at 16:48)

Civil liberties, civil rights, privacy

• The Constitution Project: “Guidelines for Public Video Surveillance: With Model Legislation” (.PDF, 104 pages)
• ACLU Privacy & Technology site
• The Fourth Amendment:
  
  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.

Relevant law

• Driver’s Privacy Protection Act (DPPA; Title 18, 2721 of U.S. Code)** and EPIC fact sheet
• Maryland 10-616 of State Government Article; MD DOT MVA “Protecting Your Privacy” **

Articles, opinions

• Mine, collected under the tag “license plate scanner” on this site
• Security expert Bruce Schneier “City Cops’ Plate Scanner is a License to Snoop” (Sep 2004); “Privacy in the Age of Persistence” (Feb 2009)

Technical

• Manufacturers: PlateScan (motto: “The License Plate is just the Beginning”), ELSAG
• Automatic number plate recognition (Wikipedia)*
• Evidence for counterfeit or stolen plates as car theft strategy and way of defeating scanners: UK Home Office Consultation Document, undated, response deadline 12/8/2008: “As regards misrepresentation of vehicle registration marks, we understand from the police that there has been a steady increase in the numbers using illegal number plates. Breaches of the legislation include altering the layout of letters and numerals, illegal fonts and the use of tape to change the appearance of the plate. This has significant implications for criminal investigations and crime detection, eg by Automatic Number Plate Recognition (ANPR) systems and automatic speed detection devices.” See also WSJ, BBC (via), CBS; more generally, vehicle cloning report by Natl. Insurance Crime Bureau.

=====
* Common acronyms for these systems include ANPR (automatic number plate recognition), ALPR, LPR, (license plate), and AVI (vehicle identification).
** DPPA and MD 10-616 are mainly relevant to invasions of privacy by non-law enforcement persons — but both disprove the widespread notion that there is no expectation of privacy for license plate information.

At my request, the city sent me a copy of the license plate scanner grant application made by the Takoma Park Police Department.  The application, made to the Maryland Governor’s Office of Crime Control and Prevention (GOCCP), can be seen below.

TPPD license plate recognition scanner grant application (click expansion icon at upper right for better view)

In the following, I make a few comments about the application. While I have criticisms, I don’t want readers to think I’m imputing bad motives or bad faith to the Takoma Park Police Department. The goal of recovering stolen cars is sensible, of course. But as written, the application goes beyond that in some ways, and makes no provision for civil liberties concerns or procedures.
Read the rest of this entry »

Another point of view about license plate scanners, followed by my response.

You’re going to have to come up with something better than the Fourth Amendment if you want the Constitution to support your position. Unreasonable search and seizure? I’m sure you’re not referring to “seizure” so “search” must be the issue. You want to try to craft a definition of “search” that fits here? I can’t.

=====

From my perspective, the license plate scanner issue is one of surveillance and data protection.  Those issues are not just about what is and is not narrowly permissible to the police and the state, but about what our rights should be. Those rights were not exhaustively described by the Constitution or the Bill of Rights — how could they have been, by people who had no inkling of computers, video surveillance, GPS systems, etc.

I believe that the plain spirit of the Fourth Amendment and the Bill of Rights supports my view that license plate scanners represent an unreasonable search or seizure of information.

But whether I’m right about that or not, we still have the right to choose a less-surveilled, less abuse-prone society over a more heavily surveilled one. We can decide what kind of community we want. And I should think the burden ought to be on those who want more surveillance, not those who want less of it.

I’m not a legal expert (obviously, many will snort). I just try to reason out how my fundamental rights are or are not protected by what I see happening. I understand the counterarguments — you won’t need to repeat them — but the “search” or “seizure” of my “effects” that I see happening takes place at the time my license plate identification is compared to a database, for no reason other than that a squad car rolled past my car. (I use both words only because while it seems more like a “search” to me, some legally trained people I’ve talked to say it’s perhaps more of a “seizure”.)

But even if license plate scanning is permissible under the 4th amendment, as narrowly understood and adjudicated today, I’m more concerned with the anti-surveillance spirit that caused them to be written. We fought a revolution once, among other things to be rid of unwarranted intrusions and chilling oversight, to be able to stand up and say we’re a free people, secure in the knowledge that we control and monitor our police and our government, not the other way around.

I like that spirit better than one seeking to justify “security” measures of little value. I hold out hope that we’ll either reject this particular security measure, or very, very strongly regulate its use.