Harvard University Berkman Center Criticizes FBI Concerns About Surveillance Capabilities

See also Marc Goodman's book, Future Crimes, in which he describes the exponential development of new technologies that are overwhelming laws, and government. Criminals adapt in ways that bureaucracies cannot. Politicians and journalists appear to be clueless about technology. Few politicians read. They remain focused on identity theft and cannot even protect citizens and corporations from that.  

[From article]
For more than two years the F.B.I. and intelligence agencies have warned that encrypted communications are creating a “going dark” crisis that will keep them from tracking terrorists and kidnappers. Now, a study in which current and former intelligence officials participated concludes that the warning is wildly overblown, and that a raft of new technologies — like television sets with microphones and web-connected cars — are creating ample opportunities for the government to track suspects, many of them worrying. “ ‘Going dark’ does not aptly describe the long-term landscape for government surveillance,” concludes the study, to be published Monday by the Berkman Center for Internet and Society at Harvard. The study argues that the phrase ignores the flood of new technologies “being packed with sensors and wireless connectivity” that are expected to become the subject of court orders and subpoenas, and are already the target of the National Security Agency as it places “implants” into networks around the world to monitor communications abroad. The products, ranging from “toasters to bedsheets, light bulbs, cameras, toothbrushes, door locks, cars, watches and other wearables,” will give the government increasing opportunities to track suspects and in many cases reconstruct communications and meetings. The study, titled, “Don’t Panic: Making Progress on the ‘Going Dark’ Debate,” is among the sharpest counterpoints yet to the contentions of James B. Comey, the F.B.I. director, and other Justice Department officials, mostly by arguing that they have defined the issue too narrowly.

[. . .]

The Harvard study, funded by the Hewlett Foundation, was unusual because it involved technical experts, civil libertarians and officials who are, or have been, on the forefront of counterterrorism. Larry Kramer, the former dean of Stanford Law School, who heads the foundation, noted Friday that until now “the policy debate has been impeded by gaps in trust — chasms, really — between academia, civil society, the private sector and the intelligence community” that have impeded the evolution of a “safe, open and resilient Internet.” 

[. . .]

Jonathan Zittrain, a professor of law and computer science at Harvard [. . .] noted that in the current stalemate there was little discussion of the “ever-expanding ‘Internet of things,’ where telemetry from teakettles, televisions and light bulbs might prove surprisingly, and worryingly, amenable to subpoena from governments around the world.” Those technologies are already being exploited: The government frequently seeks location data from devices like cellphones and EZ Passes to track suspects. The study notes that such opportunities are expanding rapidly. A Samsung “smart” television contains a microphone [. . .] and a Hello, Barbie brought out by Mattel last year records children’s conversations with the doll, processes them over the Internet and sends back a response. The history of technology shows that what is invented for convenience can soon become a target of surveillance. “Law enforcement or intelligence agencies may start to seek orders compelling Samsung, Google, Mattel, Nest or vendors of other networked devices to push an update or flip a digital switch to intercept the ambient communications of a target,” the report said. 

[. . .]

Apple users routinely back up the contents of their phones to iCloud — a service that is not encrypted and now is almost a routine target for investigators or intelligence agencies. So are the tracking and mapping systems for cars that rely on transmitted global positioning data. “I think what this report shows is that the world today is like living in a big field that is more illuminated than ever before,” said Joseph Nye, a Harvard government professor and former head of the National Intelligence Council. “There will be dark spots — there always will be. But it’s easy to forget that there is far more data available to governments now than ever before.”

http://www.nytimes.com/2016/02/01/us/politics/new-technologies-give-government-ample-means-to-track-suspects-study-finds.html?_r=0

New Technologies Give Government Ample Means to Track Suspects, Study Finds
By DAVID E. SANGER
JAN. 31, 2016

Federal Agencies Ignore FOIA, Issue Administrative Orders

[From article]
Nobody knows how many administrative subpoenas are issued by government agencies. Administrative subpoenas are warrants for records such as private “papers” and emails. They are issued unilaterally by government bureaucrats and are impossible to reconcile with the Fourth Amendment’s requirements of “oath and affirmation” of “probable cause” before neutral judges.
Watson and The Daily Caller News Foundation have been doing the work that Congress has failed to do in its oversight functions and have issued multiple FOIA requests to various government agencies to get a sense of how many of these subpoenas are issued.
[. . .]
Reporting by the press, it appears, is really what the FTC believes is interfering with its law enforcement activities.
As I’ve written, administrative subpoenas are relics of the Star Chamber, the notoriously secretive and abusive king’s council that the English despised and eventually outlawed in 1641. And unilaterally issued warrants were considered unlawful even before the Fourth Amendment was written.
[. . .]
Administrative subpoenas are frequently used as bureaucratic weapons to punish or intimidate businesses and others. As reported at National Law Journal, one company “put out of business under the weight of a Federal Trade Commission data-privacy investigation is now suing three agency attorneys for allegedly bringing a case based on ‘fictional’ evidence.”
[. . .]
Bureaucrats need to comply with the Fourth Amendment. Warrants require probable cause and oath and affirmation before neutral judges.

http://www.americanthinker.com/blog/2015/11/ftc_goes_star_chamber_on_warrant_transparency.html

November 28, 2015
FTC goes 'Star Chamber' on warrant transparency
By Mark J. Fitzgibbons

No More Privacy For Medical Records, Including Psychiatry

Any notes made by therapists can and will be revealed to anyone who makes requests under this misguided program. It will enable not only prosecutors to use whatever you reveal to your therapist in court against you, but it will also allow the bureaucrats to divulge the same information to journalists who can humiliate and ridicule you for sport. Hear the loud silent objections from the alleged anti stigma lobbyists for the pharmaceutical industry and the psychiatric industry? 



[From article]
Administrative subpoenas are issued unilaterally by government agencies -- meaning without approval by neutral judges -- and without probable cause stated under oath and affirmation as required by the Fourth Amendment. There are now 336 federal statutes authorizing administrative subpoenas, according to the Department of Justice.
[. . .]



In U.S. v Zadeh, the DEA obtained the records of 35 patient files without showing probable cause or obtaining a warrant issued by a judge. Citing New Deal-era case law, Judge Reed O’Connor noted that “[t]he Supreme Court has refused to require that [a federal] agency have probable cause to justify issuance of an administrative subpoena,” and that they may be issued “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." (Emphasis added).
In other words, the government may now use “fishing expeditions” for medical records.
[. . .]
Only judges may hear oaths necessary to issue warrants. Administrative subpoenas issued unilaterally by bureaucrats and without probable cause directly violate the Fourth Amendment.

http://www.americanthinker.com/articles/2015/07/feds_get_the_power_to_seize_medical_records_on_fishing_expedition_investigations_with_no_subpoena_from_a_judge.html

July 20, 2015
Feds Get the Power to Seize Medical Records on 'Fishing Expedition' Investigations with No Subpoena from a Judge
By Mark J. Fitzgibbons

Police Use Secret Technology For Surveillance, Refuse to Admit It Exists and To Identify It

This is one of numerous high tech devices used by government for surveillance and for harassment. if this technology is for sale you can be certain that criminals have access to it, along with their government protectors. In recent months I have been unable to reach several government agencies to complain about police harassment and harassment by criminals. (Not that they will act or anything, but just so they cannot say I did not complain.) I suspect that technology is available and being used not only to listen in, to track and to gather meta data, but also to divert the calls. Land line calls can be diverted using computers, hacking into telephone company switches. This was reported several years ago by the New York Times. Criminals diverted calls to steal business from competitors. Over many years I would call a government agency and end up speaking to a Harvard University student. I suspect it is happening again. On occasion it is a Harvard University campus police employee. Other times it is an attorney employed by the university. And still others by persons pretending to be doctors. This is an area that most people can understand. But there are many other areas of technology used to inflict pain and to manipulate thought and human emotions. It is not written about and as in this case the government will deny it exists, do what it can to hide its existence, and its use. The ACLU is doing some work in this area. Their web site is at ACLU.org  

[From article]
But before trial, his defense team detected investigators’ use of a secret surveillance tool, one that raises significant privacy concerns. In an unprecedented move, a state judge ordered the police to show the device — a cell-tower simulator sometimes called a StingRay — to the attorneys.
Rather than show the equipment, the state offered McKenzie a plea bargain.
[. . .]
McKenzie’s case is emblematic of the growing, but hidden, use by local law enforcement of a sophisticated surveillance technology borrowed from the national security world. It shows how a gag order imposed by the FBI — on grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public and criminal defendants in the dark on how the tool works.
[. . .]
The Tallahassee police used the StingRay or a similar device in more than 250 investigations over a six-year period, from mid-2007 through early 2014, according to a list of cases compiled by the Tallahassee Police Department and provided to the American Civil Liberties Union.
[. . .]
In Baltimore, a judge is pushing back against the refusal of police officers to answer questions while testifying. In Charlotte, following a newspaper investigation, the state’s attorney is reviewing whether prosecutors ­illegally withheld information about the device’s use from defendants.
In Tacoma, Wash., after a separate newspaper investigation found that judges in almost 200 cases had no idea they were issuing orders for the StingRay, the courts set new rules requiring police to disclose the tool’s use. The state legislature is weighing a bill to regulate police use of the equipment.
[. . .]
The FBI and Tallahassee police say that the device is used only with an appropriate court order and that they do not collect the content of calls or text messages. The FBI also said it retains only location data that is relevant to an investigation and immediately discards all other data.
So far, there is virtually no case law on how the Fourth Amendment — which prohibits unreasonable searches and seizures — should apply to this technology.
[. . .]
In March, the defense team deposed police investigator Robert Newberry. The lawyers tried to get Newberry to explain how the police zeroed in on 3197 Springhill Rd. He mentioned the cell-tower records and then, under probing, acknowledged that they had not been sufficient on their own to locate the suspect.
He said a “Sergeant Corbitt” in the department’s technical operations unit had identified the phone’s location. “He would have to tell you how he got to that,” Newberry said, referring to Christopher Corbitt, who handles electronic surveillance operations.
[. . .]
Newberry could not fully explain how Corbitt determined the phone’s location. “I can’t address it because I don’t know the magic behind it,” he said.
[. . .]
But how did he know that the phone was in the house at 6 in the morning? The phone was a “burner” — one not registered under McKenzie’s name.
“We do have specific equipment that allows us to . . . direction-find on the handset, if necessary,” Corbitt said.
“What is that, and how does that work?” McMullen asked.
“I can’t go into that,” he said. “Due to [a] nondisclosure agreement with the FBI, we’re not able to get into the details of how the equipment operates.”
He acknowledged that the device was a cell-tower simulator.
[. . .]
He said that if the defense wanted more specific information, then he had “a specific protocol” to follow requiring him to notify the FBI and the Justice Department.
[. . .]
In June, in response to a motion for public access by the ACLU, the state released a transcript from a closed court hearing in 2010 relating to a Tallahassee rape case in which Corbitt testified that he had used a cell-site simulator to identify a suspect in an apartment complex. “In essence, we emulate a cellphone tower,” he said. “We force that handset to register with us. We identify that we have the correct handset and then we’re able to — by just merely direction-finding on the signal emanating from that handset — we’re able to determine a location.”
[. . .]
“Using portable equipment,” he said, “we were able to actually basically stand at every door and every window in that complex and determine, with relative certainty . . . the particular area of the apartment that that handset was emanating from.”
He said the Tallahassee police began using the device in the spring of 2007. From that point until August 2010, he said, the police had used it “200 or more times” to locate a cellphone.
How reliable was it? “Truthfully,” he said, “100 percent.”
[. . .]
The state’s attorney, Courtney Frazier, argued that details of the equipment’s operation were protected from disclosure under a law enforcement exception to the state open-records law.
Sheffield broke in. “What right does law enforcement have to hide behind the rules and to listen in and take people’s information like the NSA?” he said.
Frazier protested that the information about the device was sensitive and that disclosure could inhibit the police’s ability to catch criminals.
“Inhibiting law enforcement’s rights are second to protecting mine!” Sheffield thundered, gesturing with both hands and fixing his gaze on the prosecutor.
[. . .]
On Dec. 2, Sheffield signed the subpoena forcing Tallahassee police to show the device they used.
Two days before Corbitt was due to show up with the device, McMullen received notice of the plea deal from the prosecutor. She had never gotten such a sweet deal on a case.

http://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html?hpid=z1

Secrecy around police surveillance equipment proves a case’s undoing
By Ellen Nakashima

February 22, 2015

Twenty Witnesses Lost Their Emails In A Timely Manner

[From article]
The revelation that Centers for Medicare & Medicaid Services administrator Marilynn Tavenner did not retain her e-mails means that more than 20 witness in the Obama administration to lose or delete e-mails without notifying Congress, according to the top House investigator.
“The Obama administration has lost or destroyed e-mails for more than 20 witnesses, and in each case, the loss wasn’t disclosed to the National Archives or Congress for months or years, in violation of federal law,” House Oversight and Government Reform Committee chairman Darrell Issa (R., Calif.) said ofTavenner’s lost e-mails.
“It defies logic that so many senior Administration officials were found to have ignored federal recordkeeping requirements only after Congress asked to see their e-mails,” he continued. “Just this week, my staff followed up with HHS, who has failed to comply with a subpoena from ten months ago.

http://www.nationalreview.com/corner/384906/issa-more-20-obama-officials-lost-or-destroyed-e-mails-after-house-launched-probes

Issa: More Than 20 Obama Officials ‘Lost or Destroyed’ E-mails After House Launched Probes
By Joel Gehrke
August 7, 2014 5:27 PM

Fox Reporter Subpoenaed to Reveal Source of CO Shooter's Notebooks

Jana Winter, Fox News New York

[From article]
Winter soon broke an exclusive story revealing that, prior to the shooting, Holmes had sent a package to a University of Colorado psychiatrist that included a notebook "full of details about how he was going to kill people," according to one of Winter’s sources. Her July 25 article on FoxNews.com also reported that the notebook contained illustrations of a massacre, including drawings of gun-wielding stick figures shooting other stick figures.
The package, sent to Dr. Lynne Fenton, is now in the hands of Holmes' defense attorneys,

http://www.foxnews.com/us/2013/04/05/free-press-fight-how-fox-news-reporter-wound-up-facing-jail-for-doing-job/

Free press fight: How Fox News reporter wound up facing jail for doing job
Published April 05, 2013
FoxNews.com

* * *
[Related story]

http://www.wsoctv.com/ap/ap/crime/school-faces-new-questions-in-colo-massacre/nXDHS/

Updated: 1:17 p.m. Friday, April 5, 2013 | Posted: 1:16 p.m. Friday, April 5, 2013
University says Holmes papers back its statement
By DAN ELLIOTT
The Associated Press

US House Files Lawsuit Against Holder

http://www.nypost.com/p/news/national/house_files_suit_against_holder_HugSK8PKOXJfvta9N9BrEL

House files suit against Holder over 'Fast and Furious' records
ASSOCIATED PRESS
New York Post
Last Updated: 2:22 PM, August 13, 2012
Posted: 1:30 PM, August 13, 2012

Obama Refuses Congressional Subpoena on Solyndra

Even is the vote to subpoena the records was partisan how does that give the Obama/Harvard/Chcago thugs the audacity to refuse to release the records? At least if they made the specious argument that Congress does not have the authority. Oh, isn't that what Watergate and Archibald Cox resolved in 1973?

http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/wh-rejects-subpoena-request-solyndra-docs

WH rejects subpoena request for Solyndra docs
by Philip Klein Senior Editorial Writer
Follow on Twitter:@PhilipAKlein
November 4, 2011 7:20pm
Washington Examiner

US Rep ISSA Subpoenas US AG Holder

[From article]
"In addition to the congressional investigation being led by Issa and Sen. Charles Grassley, R-Iowa, House Judiciary Committee Chairman Lamar Smith, R-Texas, is calling for a special counsel to look into the matter."

http://www.foxnews.com/politics/2011/10/12/issa-issues-subpoena-to-holder-in-fast-and-furious-investigation/

House of Representatives - POLITICS
Issa Issues Subpoena to Holder in Fast and Furious Investigation
Published October 12, 2011
FoxNews.com