Noxious Creeping Part V: PA legislators to other states- "Please decide our laws for us"

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses a proposal to allow Pennsylvania courts to consider wiretaps that were legally made under other states laws, even if they would have been illegal in Pennsylvania.

Part V: PA Legislators to other states—“Please decide our laws for us”

HB 2400 would require Pennsylvania courts to consider recordings that were legally made in jurisdictions other than Pennsylvania. For example, if a person legally recorded another in New Jersey, a Pennsylvania court would have to accept the recording as evidence. The Pennsylvania court would have to allow the recording, even if the recording would have been illegal if it had been made here.

Pennsylvania has a tradition of granting broader privacy rights than many other states. Even the United States Constitution offers less protection for personal privacy than does Pennsylvania law. Our state constitution’s guarantee against unreasonable searches is older than the Fourth Amendment in the Bill of Rights. In our wiretap statutes, Pennsylvania long ago decided that all parties to a conversation must consent to recording. In contrast, many states require only one party to consent. Our commonwealth’s robust privacy protections make a strong statement: We helped give birth to American liberty, and we want to enjoy as much of it as we can.

Unfortunately HB 2400 would contradict our tradition of assuring strong privacy rights. The bill would force Pennsylvania’s judges to open their courtrooms to recordings that would be illegal and inadmissible if they had been made here. The all party consent rule—a fundamental protection for all who appear in Pennsylvania’s courts—could disappear for some defendants.  Admissibility would depend merely on where their conversations were intercepted. The legislators of other states, as well as members of Congress, would have the authority to decide when Pennsylvania courts would have to admit certain recordings.

Our legislators in Harrisburg can talk a good game about states’ rights and Pennsylvania’s authority to govern itself. But when it is time to step up to the plate, do their votes follow their rhetoric? The supporters of HB 2400 must be hoping the answer is “No.”

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

Noxious Creeping Part IV: By reading this, you've consented to audio surveillance

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses a proposal to add a notice exception to the definition of “oral communications.” The new exception would allow anyone who gives notice of surveillance to record otherwise private conversations.

Part IV: By reading this blog post, you have consented to audio surveillance.

One of the most far-reaching proposals of HB 2400 creates a “notice exception” to the definition of oral communications.  Currently, the wiretap law bans recording most private oral communications. HB 2400 proposes a new rule that an oral communication isn’t private if the speaker has notice that it might be recorded.  In other words, as long as someone has notified you that surveillance may happen, you have no right to expect that your conversation is private.

This includes “actual notice,” which means you actually are aware that you may be recorded. It also includes “constructive notice.” That’s a jargony term meaning, “it’s written down on something that you were supposed to read.” Like a sign in the front office of a building, or in the back of the employee handbook. If HB 2400 passes, we can expect to see “you may be under surveillance” signs popping up all over. And you can expect to be under surveillance whenever you are not at home, whether you are out in public or not.

The notice exception makes it easy for anyone to remove any expectation of privacy in public and private space. Let’s consider a couple examples. An employer could post a sign about audio surveillance in the front office or in an employee handbook. Then the employees’ private conversations could be recorded in elevators, offices, shop floors, and lunch rooms. Don’t criticize the boss, and don’t talk about unionizing at work. 

The exception would apply in schools as well. The meetings of student groups such as the Gay-Straight Alliance might be recorded. Or administrators might decide to listen in on school newspaper meetings or student government meetings to make sure no one criticizes school policies.

             

Instead of the notice exception, the ACLU of Pennsylvania supports a different definition of “oral communications” that protects privacy rights. We ask the legislature to define “oral communications” as, “Any oral communication uttered by a person possessing a reasonable expectation of privacy in such communications.” Our proposal clarifies the current law rather than changing it significantly. Since 1998, Pennsylvania Courts have interpreted “oral communications” to cover only situations where the parties to a conversation had a reasonable expectation of privacy. See Agnew v. Dupler, 553 Pa. 33 (Pa. 1998). Our proposal would rewrite the current statute to make it crystal clear that a person’s “reasonable expectation of privacy” should remain the cornerstone of privacy rights in the wiretap act.

The “reasonable expectation of privacy” rule protects privacy where HB 2400 would threaten it. Instead of looking only to whether someone posted notice somewhere, courts interpreting the “reasonable expectation of privacy” rule look to all the circumstances surrounding a conversation. So even if the front office had a sign about audio recording, students might still be able to have a private conversation in a closed classroom, or employees might still be able to speak in an otherwise empty elevator without the boss listening. 

All of us—whether as employees, students, or in some other role—should have the right to hold private conversations from time to time, even if we are not at home. HB 2400, as it is currently written, would make this right a rare one. 

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

Noxious Creeping Part III: You can record if you think they might admit to thinking about doing something bad in the future

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before the state budget passes, which is due at the end of June, and before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses the proposal to allow anyone to record private conversations if they believe they will capture evidence of a crime of violence or first degree felony.

Part III: The Evidence Exception, or You can record if you think they might admit to thinking about doing something bad in the future.

Pennsylvania’s wiretap law requires that everyone in a private conversation consent before anyone can record it. The law protects everyone’s privacy by making sure that everyone has a chance to keep a private conversation private.

Legislators are proposing to create a new exception that punches a massive hole in the “all-party consent” rule—a hole with ragged, unraveling edges. This “Evidence Exception” would allow any person to record anything if they have a reasonable belief the recording will capture evidence of a past, present, or future crime. For now, at least, the exception is limited to “crimes of violence” and first degree felonies.

On its face, the law would give individuals permission to secretly record each other in many private conversations. For example, one person’s malice towards another can be good evidence in an assault case. Under this law, a person might record another person badmouthing a third person, just in case the third person was ever the victim of a violent crime sometime in the future.

The proposed law also puts a confusing burden on civilians to decide when the exception actually applies. You would only be allowed to record if you thought you would find evidence of a “crime of violence” or a first degree felony. Otherwise recording without consent is still a crime. Quiz: Sometimes burglary is a first degree felony and sometimes it is not; and sometimes it is a crime of violence and sometimes it is not. Do you know the difference?[1] How many people will be able to say whether the proposed law would allow them to record a private conversation or not? Not many, I suspect, without seeking advice from a lawyer first.

If this proposed exception seems broad by itself, consider also that it would be very likely to expand. Once we allow recording to capture evidence of “crimes of violence” and felonies of the first degree, preventing the exception from sweeping in other offenses as well will be almost impossible. Discharging a firearm into an occupied structure is pretty awful, but it is only a felony of the third degree. 18 Pa.C.S. 2707.1(b). If a legislator in the future votes against expanding the Evidence Exception to include that offense, is he or she supporting discharging firearms into occupied structures? Casting votes to keep the exception where it is would be politically very, very difficult. Inevitably, some legislator or some prosecutor will cite an emotional case to justify further expansion of this exception.

As it is now, the Evidence Exception is so large it could nearly swallow all-party consent by itself. And once created, it could easily grow even larger.

Instead, we should keep it off of Pennsylvania’s law-books entirely.

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[1] Does it help if I tell you that burglary is only a second degree felony “If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry”? 18 Pa.C.S. 3502. The definitions of “crimes of violence” are at 42 Pa.C.S. 9714(g).

Noxious Creeping: Amending the PA Wiretap Act (Part I)

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. In this post, I discuss the proposal to allow law enforcement to secretly intercept and send text messages using cell phones they obtain from civilians.

Part 1: Who is that text message really from?

Overturning Cruttenden

One of the changes they want would overturn the Pennsylvania Superior Court’s decision in Pennsylvania v. Cruttenden.  The case involved an informant who turned his cell phone over to police when he was caught with drugs in his car.  The police intercepted text messages from the informant’s alleged supplier and sent replies without revealing their identities. The supplier, thinking he was still talking to the informant, set up a meeting. But when he got there, instead of meeting the informant he was arrested and charged with criminal attempt, conspiracy, and other offenses.  On appeal, the Superior Court held that police violated the Wiretap Act when they failed to get a court order for using the cell phone. If police want to take a person’s cell phone, intercept text messages, and send text messages from the phone while pretending to be the intended recipient, they must get a court to say okay. 

Prosecutors want to pass a law to overturn the case.  They want to allow law enforcement to receive and send text messages on any phone that they “lawfully obtain.” They want law enforcement to be able to do this without any court oversight and without revealing their identities to the people they are communicating with.

Even if you think police should be allowed to use a phone that an informant voluntarily hands over for police to use, the proposed bill would go much farther. Police could intercept and send messages on any phone they “legally obtain.” This appears to allow police to seize the phones of people they arrest, and then use those phones to try to trick others into sending incriminating messages.  It even seems to create an incentive for law enforcement to arrest people in order to seize and use their phones. 

Prosecutors say that the court order requirement gets in the way of law enforcement.  That’s true. “Getting in the way of law enforcement” is also the purpose of the Fourth Amendment and much of the Wiretap Act.   It would be convenient for law enforcement to be able to read any text message anyone sends.  But we don’t want to live in a society where we are never sure if our private text messages will end up in a police dossier or if text messages we receive come from our friends or from the government.

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

Beware the puppet

"If I did one thing I'm proud of, it's to make people feel that together they count."
- Studs Terkel

Sigh. It never ends. Yet another story on a bunch of over-zealous cowboys, this time in Maryland, going undercover to spy on such threats to society as peace groups, puppet-makers and Quakers.

As the L.A. Times reports:

Maryland officials admit that faulty undercover operations let state police to wrongly list at least 53 Americans as terrorists in a criminal intelligence database -- and shared some information about them with half a dozen state and federal agencies, including the National Security Agency.

Those on the list include:

...two Catholic nuns, a former Democratic congressional candidate, a lifelong pacifist and a registered lobbyist. One suspect's file warned that she was "involved in puppet making and allows anarchists to utilize her property for meetings."

Of course, these spying tactics are not new. This has been going on since the Sept. 11 terrorist attacks, across the country and right here in our backyard.

These cases serve as a reminder of the price of fear, of the danger in letting the government bully us into silence and submission. Over the weekend, I attended a memorial celebration for Studs Terkel, a man who could never be silenced and who would never submit.

As the New York Times described him, Terkel was "the father of oral history, the voice of the American worker, a pre-eminent listener, the sage of Chicago and a champion of the underdog."

"The pages of history are cluttered with the pronouncements of presidents and military heroes," Howard Zinn, the historian, told the crowd of 800 at the Great Hall at Cooper Union. "Studs brought people back onto the pages of history, people with feelings, people with anguish and their joys."

"He was always concerned with what he called the 'et cetera' of history," Mr. Zinn added. "The people left out."

Those at the memorial remembering Terkel told wonderful stories of his insatiable curiosity and compelling interest in all those around him. But there is a story, one that was also told at the celebration, that also so clearly illustrated his courage, and the courage of the great gospel singer Mahalia Jackson.

In the 50s, Terkel was one of many writers black-listed for his support of civil-rights issues and his refusal to denounce communism. Finally, he was able to land a job when Mahalia Jackson asked him to come write for her on a new show that was created for her. The day the show was to be aired, a corporate exec from the network presented him with a loyalty oath, explaining to him that it was just a formality, but he needed to sign it. Terkel asked the man, "If the communists are against cancer, do we have to be in favor of it?" The man told Terkel that if he didn't sign the paper, he'd be fired.

Jackson overheard the exchange and told the executive that if Studs didn't work, Mahalia wouldn't sing.

Here is a link to the blog Undercover Black Man, that includes a video of one of Terkel's last interviews with Democracy Now host Amy Goodman, in which he describes what happened that day. He begins telling the story at around 2:20.

"Somebody said no. Mahalia said no." Terkel says in the interview. "And you know what happened?" he asked Goodman.

"Nothing."

Lauri in York

I hate to say we told you so, but....

And they all said we were paranoid. Of course the government would never misuse the excessive powers given to them under the PATRIOT Act. Only a bunch of anti-American pinko commies would even suggest such a thing.

Except that now the Justice Department’s own Office of the Inspector General (OIG) has more than just suggested such a thing - it flat out said in a report issued today that the FBI has misused the provision of the PATRIOT Act that allows the agency to demand sensitive personal information without judicial supervision.

According to the Washington Post, the OIG "found that FBI agents used national security letters without citing an authorized investigation, claimed 'exigent' circumstances that did not exist in demanding information and did not have adequate documentation to justify the issuance of letters."

This is the part where we get to say "I told you so" (but in a really nice way, of course). Check out the ACLU's 2003 report, Unpatriotic Acts: The FBI's Power to Rifle Through Your Records and Personal Belongings Without Telling You.

Ya know, maybe that whole "checks and balances" thing wasn't such a bad thing after all. Congress, you might want to look into it.

Sara in Philly

We are shocked, shocked to find data-mining going on!

Guest Blogger: ACLU Member & Volunteer Herb Kestenbaum

Well, the feds are at it again, raking in billions of pieces of information on anyone entering or leaving the U.S. and somehow - we don't know precisely - deciding who among them could be today's or tomorrow's terrorists. And that data, about millions of American citizens as well as foreigners, will be kept for 40 years. It does not matter whether the data concerns those the government finds to be "innocent" or whether the information is accurate. And that mass of raw information held by Big Brother will be available - from our Department of Homeland Security - to other branches of government.

This is the Automated Targeting System. It was initially used to scan cargo. Now, it's being used on people, lumping people and products together as possible threats to national security.

So, when did this change happen? In 2002. When were we told? Last month. Can the data, if you could even get access to it, be checked for accuracy and be changed? No. Hell, you can check your financial credit rating, which affects part of your life, but you can't check your terrorist rating, which can affect your individual liberties and freedoms granted by the U.S. Constitution. Under the Bush regime, you have no right to review what may be inaccurate information, false accusations, discrimination based on race or religion or political beliefs or sexual preference. Nor can you limit who can use that information or to what purpose.

The feds just don't stop snooping, regardless of the cost to citizens. They tried to data-mine consumer and banking records to find patterns they said made people terrorist suspects. That was in 2002, and that program, the infamous Total Information Awareness, was killed. Undeterred, Big Brother - in that same year - just shifted its focus and created the latest outrage.

Where does this stop? When does the government start treating its citizens as private individuals, with the right to live their lives free of concern that the government not only is monitoring them but rating their loyalty and character as well?

More on the issue: ACLU press release; AP Story