A New York woman who valeted her car at Greater Rochester International Airport recently returned to find a notice on her car informing her that it had been searched without her consent. Furious, she got in touch with a local TV station, and the story went viral. TSA quickly put out a statement saying that its agents don't search cars—but searches can be included in a TSA-approved security plan. Mother Jones has found that not only does TSA approve searches of the trunks and interior of unattended cars in an undefined perimeter that's considered dangerously close to the airport—like a car left with valet parking—but if a valet attendant finds illegal drugs instead of bombs, they will call the police. Privacy experts say these searches could be a violation of a person's Fourth Amendment rights.
"We search every car, we open the trunk and take a look around," says Saour Merwan, a keymaster at the valet service at San Diego International Airport. "We were told by airport authority to do that, since about two years ago. [We] keep an eye out for something suspicious, like wires and cables. The airport has security regulations and we have to follow them." Merwan says the service doesn't inform anyone that they're checking out the inside of the vehicles, and when asked what he'd do if he found illegal drugs, he says, "Of course we'd call the police."
"This is exactly what the Fourth Amendment was designed to say the government can't do, generally search everything without suspicion," says Fred H. Cate, a professor at the Maurer School of Law at Indiana University. "At the same time, the Supreme Court has made an exception to searching items that you've voluntarily given to someone else—like a car. It's a crazy argument, but that's not bothered the courts before."
As David Castelveter, a spokesman for TSA explains, each airport in the United States is required to come up with a TSA-approved plan to deal with security risks. That includes "unattended vehicles parked curbside at the terminal." Approved measures to deal with that risk can include "searches of cars queued for curbside valet parking." (Not all airports have valet services, but those that do tend to leave the cars in lots close to the airport.) Mother Jones asked Castelveter whether the definition of "curbside" can include any parking lot close to the airport—including those that may contain locked, non-valet cars—but he said TSA looks at each airport security plan on a "case-by-case basis." Obviously, valet cars are easier to search than other vehicles, as the valet company has the keys.
"If TSA is made aware that evidence of illegal activity is discovered incidental to a search for explosives, that information will be relayed to law enforcement," Castelveter adds.
KTVU, the San Francisco TV station that reported offensive fake names of pilots involved in the Asiana Airlines crash earlier this month, has found a way to make the embarrassing mistake disappear from the Internet: US copyright law. As Media Bistro reports, YouTube videos documenting the broadcasting error made by KTVU are being taken offline, replaced with a notice that says they are no longer available because of KTVU's "copyright claim." But even KTVU admits that copyright violation isn't the real reason that it's taking the videos down:
"The accidental mistake we made was insensitive and offensive. By now, most people have seen it. At this point, continuing to show the video is also insensitive and offensive, especially to the many in our Asian community who were offended. Consistent with our apology, we are carrying through on our responsibility to minimize the thoughtless repetition of the video by others," KTVU vice president and general manager Tom Raponi told the news site.
KTVU reported the names of the pilots involved in the San Francisco crash as "Captain Sum Ting Wong," "Ho Lee Fuk," "Wi Tu Lo," and “Bang Ding Ow”—which an intern for the National Transportation Safety Board mistakenly confirmed. The news station, which is a Fox affiliate, has since apologized.
The law that KTVU is permitted to take the videos down under is the Digital Millennium Copyright Act (DMCA)—and coincidentally, this week, a subcommittee of the House Judiciary Committee is kicking off hearings that will focus on reforming it. As Mother Jonesreported last week in our roundup of outdated tech laws, DMCA—which was passed in 1998 with the aim of stopping copyright infringement—has been criticized by Internet freedom advocates as harmful to freedom of speech, because it allows companies to deliver take-down notices on any content that they don't like. Corynne McSherry, the intellectual property director for the Electronic Frontier Foundation, says that the fact that KTVU is able to take down the YouTube videos shows how the law makes it "very easy to get [fairly used] content taken down, and much harder to have it restored."
"Here, the law is being abused to try to shut down a political conversation—and in the process, targeting clearly noninfringing fair uses," says McSherry. "It's always particularly disappointing to see a news organization abuse copyright law in this way—they, more than most, should know how important it is to protect fair use and free expression."
The State Department has plenty of important secrets—classified cables, foreign policy directives, embassy plans, and more. It also has a department (with a nine-word name) responsible for protecting those secrets from hackers: the Bureau of Information Resource Management's Office of Information Assurance. Yet according to an unusually scathing new report from the State Department's inspector general, this "lead office" for cybersecurity is so dysfunctional and technologically out-of-date that Foggy Bottom may be open to cyberattack.
The IG's audit of the cybersecurity office, which took place earlier this year, concluded that the office "wastes personnel resources," is unequipped to monitor $79 million in contracts, "has no mission statement," and "is not doing enough and is potentially leaving Department systems vulnerable." The report notes that department employees usually cannot find the head of the bureau because he's often not in the office, and as a result, they don't know what their work priorities are. The IG report notes that because of these problems, other parts of the department have to pick up the slack.
"This report reads like a what-not-to-do list from every policy, program, and contracting perspective," says Scott Amey, the general counsel for the Project On Government Oversight, a nonprofit watchdog group where I used to work. "With stories about foreign entities hacking US government systems and questions about non-authorized access to classified information, this latest IG report causes major concerns about the State Department’s ability to protect government systems."
Indigenous Ecuadorean leader Emergildo Criollo travels from the Amazon rainforest to California to deliver 325,000-plus letters urging Chevron to clean up its toxic oil.
Thanks to disclosures made by Edward Snowden, Americans have learned that their email records are not necessarily safe from the National Security Agency—but a new ruling shows that they're not safe from big oil companies, either.
Last month, a federal court granted Chevron access to nine years of email metadata—which includes names, time stamps, and detailed location data and login info, but not content—belonging to activists, lawyers, and journalists who criticized the company for drilling in Ecuador and leaving behind a trail of toxic sludge and leaky pipelines. Since 1993, when the litigation began, Chevron has lost multiple appeals and has been orderedto pay plaintiffs from native communities about $19 billion to cover the cost of environmental damage. Chevron alleges that it is the victim of a mass extortion conspiracy, which is why the company is asking Google, Yahoo, and Microsoft, which owns Hotmail, to cough up the email data. When Lewis Kaplan, a federal judge in New York, granted the Microsoft subpoena last month, he ruled it didn't violate the First Amendment because Americans weren't among the people targeted.
Now Mother Jones has learned that the targeted accounts do include Americans—a revelation that calls the validity of the subpoena into question. The First Amendment protects the right to speak anonymously, and in cases involving Americans, courts have often quashed subpoenas seeking to discover the identities and locations of anonymous internet users. Earlier this year, a different federal judge quashed Chevron's attempts to seize documents from Amazon Watch, one of the company's most vocal critics. That judge said the subpoena was a violation of the group's First Amendment rights. In this case, though, that same protection has not been extended to activists, journalists, and lawyers' email metadata.
The Electronic Frontier Foundation (EFF) represents 40 of the targeted users—some of whom are members of the legal teams who represented the plaintiffs—and Nate Cardozo, an attorney for EFF, says that of the three targeted Hotmail users, at least one is American. Cardozo says that of the Yahoo and Gmail users, "many" are American.
"It's appalling to me that the First Amendment has no bearing in this case, and that the judge simply assumed that all of the targets aren't US citizens—when in fact, I am," says a human rights activist from New York who has been advocating on behalf of the indigenous community, doing both volunteer and paid work, since 2005. He has never been sued by Chevron, nor been deposed. He wishes to remain anonymous—because his legal fight against the subpoena is still pending. The activist received a notice of the subpoena from Google last year (it has not been granted yet.) Chevron is seeking information including, but not limited to, the name associated with the account and where a user was every time he logged in—for the past nine years.
"Chevron is trying to crush, silence, and chill activism on behalf of the people they screwed over," the activist argues. Michelle Harrison, an attorney for EarthRights International, tells Mother Jones that her clients aren't comfortable going on record about the subpoenas they've received, because "Chevron's dogged pursuit of anyone that dares speak out against them is regrettably having precisely the chilling effect we warned the court it would."
Advocates for the plaintiffs in the Chevron case say that subpoenaing the email records is the company's latest nuclear tactic to win a lawsuit it keeps losing. Chevron was ordered to pay $9 billion in damages in 2011 and to issue a public apology. After the company refused, a judge ordered the damages to double. The Supreme Court has declined to hear Chevron's appeal. The extortion case is set to go to trial on October 15, after Kaplan—whom the Ecuadorean plaintiffs once asked to be removed from the case—refused to delay it.
Cardozo says there are 101 email addresses listed in the subpoenas to the three tech companies, but EFF has found only two that are owned by actual defendants in the lawsuit. "Subpoenas of nonparties are generally quite routine," says Eugene Volokh, a professor at the University of California-Los Angeles School of Law. But Karl Manheim, a professor at the Loyola School of Law in Los Angeles, notes, "The parties seeking the info have to establish its relevance to the case; you can't just go on a 'fishing expedition' or on a hunch."
Julian Sanchez, a research fellow at CATO, says that "even assuming the account holders aren't citizens, it doesn't automatically follow that the First Amendment is irrelevant." But he notes that while anonymous speech made by Americans is protected under the Constitution, "courts have been inconsistent in applying that protection against civil subpoenas aimed at identifying anonymous internet users." In the case Dendrite International, Inc. v. Doe No. 3, for example, an appellate court held that a company was not allowed to unmask users who had criticized the company on a Yahoo message board.
Manheim says the judge's invocation of citizenship is "wrong" in this case and the users should appeal. "The US Constitution applies to all persons (even foreign nationals) within US borders and to US persons abroad. While the targets of the subpoenas are outside of US jurisdiction, the subpoena itself is operative within the US. So the Constitution should apply." (Chevron did not respond to request for comment.)
"I think if the NSA scandal has taught us anything, anyone who says that 'it's just metadata' doesn't know what metadata is—if I want to spend the night at my friend's house and use his computer, that's my business," Cardozo says. "And if Judge Kaplan thinks seizing metadata is routine, he doesn't know how powerful it can be." The activist adds, "It's a slippery slope. Once one thing is granted, it will only be easier to ask for more."
A US appeals court has ruled that the First Amendment does not protect New York Times national security reporter James Risen from revealing the sources that gave him information about the CIA's plan to disrupt Iran's nuclear program. Risen has been issued a subpoena by the Obama Administration to testify at the trial of former CIA officer Jeffrey Sterling, who allegedly leaked unauthorized information about the program.
In a 2-1 decision, the US Court of Appeals for the Fourth Circuit overturned a 2011 ruling by a lower court that Risen had journalist's privilege to protect his sources. It also reaffirmed that the CIA can take special measures to hide the identity of current and former CIA agents who provide witness in the trial. Agents can hide their real names from the jury when testifying, and can take other security measures such as hiding behind " a screen between the trial participants and the public seating section of the courtroom" or wearing "light disguises (wigs, false beards, half glasses.)"
The majority opinion said: "There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive."
The information in question is part of Risen's 2006 book, State of War: The Secret History of the C.I.A. and the Bush Administration. In it, he described the CIA operation against Iran's nuclear program as poorly run and wrote that it potentially gave valuable information to the Iranians. Risen told The Times in 2011 that, "I am going to fight this subpoena...I will always protect my sources, and I think this is a fight about the First Amendment and the freedom of the press.”
In a dissenting opinion, Circuit Judge Roger L. Gregory agreed with Risen: "The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders."
The Obama Administration indicted Sterling under the Espionage Act, a law it has wielded more than any other presidential administration. Critics of Risen's subpoena say that forcing Risen to testify, and cracking down on a national security whistleblower, is setting an alarming precedent. "I think it's possible we're headed toward a genuine crisis, where a New York Times reporter is in jail for publishing the news," says Steven Aftergood, director of the Project on Government Secrecy, a government watchdog group. He would like to the Obama Administration to withdraw the subpoena, but notes, "I'm not sure where things go from here. It's hard for me to imagine Risen saying, 'OK, I give up. Sterling was my source.' Will he go to jail? I don't know."