Disclosure: I am currently a Visiting Scholar at the ACLU.

Ars Technica has an interesting story concerning documents released under the Freedom of Information Act to the ACLU and EFF.

Courts in recent years have been raising the evidentiary bar law enforcement agents must meet in order to obtain historical cell phone records that reveal information about a target’s location. But documents obtained by civil liberties groups under a Freedom of Information Act request suggest that “triggerfish” technology can be used to pinpoint cell phones without involving cell phone providers at all.

Triggerfish, also known as cell-site simulators or digital analyzers, are nothing new: the technology was used in the 1990s to hunt down renowned hacker Kevin Mitnick. By posing as a cell tower, triggerfish trick nearby cell phones into transmitting their serial numbers, phone numbers, and other data to law enforcement. Most previous descriptions of the technology, however, suggested that because of range limitations, triggerfish were only useful for zeroing in on a phone’s precise location once cooperative cell providers had given a general location. (more…)

The New York Times has an interesting story on some privacy and civil liberty questions surrounding the National Security Agency’s warrantless wiretapping program that the Obama administration will face early on.

The Justice Department will be asked to respond to motions in legal challenges to the National Security Agency’s wiretapping program, and must decide whether to continue the tactics used by the Bush administration — which has used broad claims of national security and “state secrets” to try to derail the challenges — or instead agree to disclose publicly more information about how the program was run.

When he takes office, Mr. Obama will inherit greater power in domestic spying power than any other new president in more than 30 years, but he may find himself in an awkward position as he weighs how to wield it. As a presidential candidate, he condemned the N.S.A. operation as illegal, and threatened to filibuster a bill that would grant the government expanded surveillance powers and provide immunity to phone companies that helped in the Bush administration’s program of wiretapping without warrants. But Mr. Obama switched positions and ultimately supported the measure in the Senate, angering liberal supporters who accused him of bowing to pressure from the right. (more…)

In October, the Privacy Commissioner of Canada’s office announced it “has prepared a draft guidance document that sets out good practice rules for private sector organizations that are either contemplating or using covert video surveillance.” The Commissioner asked for public comment on the draft guidance, which sets out a test to determine whether an organization may use covert video surveillance. See my original post. The deadline for public comment is tomorrow, November 14.

Any questions about the draft guidelines or comments process can be sent via email to: consultation@privcom.gc.ca. Comments on the guidance document may be sent by postal mail to:

Covert Video Surveillance Consultation
Office of the Privacy Commissioner of Canada
112 Kent Street, 3rd Floor
Ottawa, Ontario
K1A 1H3

Both found via PogoWasRight.org.

Here are two academic articles about privacy issues that might be of interest to readers.

First, an article (pdf) by Jed Rubenfeld, Robert R. Slaughter Professor at Yale Law, entitled, “The End of Privacy.” Rubenfeld raises a number of questions, some of them surprising. I agree with some points but am skeptical of others. From the introduction:

This Article is about the Fourth Amendment. It is an attempt to recover that amendment’s core meaning and core principles.

Why has the Fourth Amendment, despite explicitly governing seizures of the person, played so minimal a role in the judicial response to the “unlawful combatant” detentions? What allows courts to find no Fourth Amendment search or seizure when the government obtains records from telephone companies or Internet service providers showing whom you have communicated with and when and for how long? What allowed the Sixth Circuit last summer to dismiss a challenge to the NSA’s covert wiretapping on grounds implying that the program might never be reviewed under the Fourth Amendment at all? What flaw, in short, in modern doctrine has made the Fourth Amendment so irrelevant to the present search and seizure debates — and how could it reclaim its relevance? This Article tries to answer these questions. (more…)

I am quoted in a DC Examiner story about Mayor Fenty’s plan for a city-wide surveillance system, “New rules proposed for spy net.”

The Fenty administration has proposed new standards for a consolidated spy network of more than 5,000 closed-circuit cameras that should take effect in time for the presidential inauguration in January.

The Video Interoperability for Public Safety system, or VIPS, links 5,200 District-owned closed-circuit television cameras within a single monitoring office under the Homeland Security and Emergency Management Agency. The goal: Assist Homeland Security “to rapidly identify and respond to emergency circumstances that occur within the District.”

Every camera in a school, in a jail cell, in a government building, outside a public housing project or attached to a traffic light has been integrated into the network. The police department’s crime cameras, which require passive monitoring only, are not included.

As I told the reporter, there are numerous problems with the proposed regulations (pdf) for the city-wide camera surveillance system. The proposed regulations have few changes from the emergency rules that were self-imposed by the Fenty administration in June. Those emergency rules were created without input from the public or the DC Council. After five months and much public and Council review and criticism of the emergency rules, the Fenty administration has not addressed the substantial privacy and civil liberty questions that have been raised.

The emergency regulations (pdf) set out in June were vague as to the purposes of the system, as are these current proposed rules. But notice that in June, the Fenty administration said that one purpose was to “enhance public safety.” The Fenty administration was questioned as to what measurements would be used to evaluate whether the centralized surveillance system could be judged effective at enhancing public safety. The “enhance public safety” purpose is gone from the new proposed rules. Why? Is it because numerous studies (pdf) by law enforcement officials have shown (pdf) that camera surveillance systems do not have a significant effect on crime, and the Fenty administration knew it couldn’t actually prove the massive camera system would actually enhance public safety? (more…)

A number of organizations have created documents to offer the Obama-Biden transition team guidance on priorities in the new administration. The issues are broad, including detainee rights, reproductive health, education, open government, security, and privacy, among others. This is Part Two of an unknown number of posts on such transition plans. I will post documents of interest as I find them. This post includes plans from CDT, Human Rights Watch, and the Cato Institute. Here is Part One.

The Center for Democracy and Technology focuses on, “The Internet in Transition: A Platform to Keep the Internet Open, Innovative and Free” in its document (pdf).

Restoring the Balance between Security and Liberty
[...] In order to restore the balance between security and liberty, the next President and Congress should take specific steps, including the following:

• [...] The next President and Congress should work together to enact legislation to update communications privacy laws to account for dramatic advances in technology.
• The next President and Congress should adopt a balanced framework for information sharing and analysis for counterterrorism purposes.
• The next President and Congress should revisit the REAL ID Act and ensure that all governmental identification programs are necessary and effective and subject to adequate privacy and security protections.
• The next President and Congress should work together to update the Privacy Act; the next President should assiduously enforce the Act’s protections.

Preserving Free Speech and Protecting Children Online
[...] In order to preserve free speech and protect children online, the next President and Congress should take specific steps, including the following: (more…)