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Righting Surveillance, Jonathan Stribling-Uss, 1320
Fri Jul 29, 2016 09:17

By Jonathan Stribling-Uss

This year’s electoral extravaganzas, the RNC and DNC, have seen extreme amounts of political repression. Even before the RNC began federal authorities announced a witchhunt for anarchists at the RNC where leaked documents claim that “anarchist extremists” pose a threat to the RNC convention. It seemed that the City of Cleveland and Federal Authorities, needed to find any excuse to justify all riot gear, night sticks, and barricades they obtained from the nearly $20 million in federal funds and thousands of extra officers they received to police the convention. Some of these funds seem to have also been spent on “fishing expeditions”, where a broad range of local activists were visited and questioned by local and federal authorities prior to the RNC.
In addition to the riot gear, and barricades is clear that federal agencies in charge of these events have some extreme forms of surveillance available to them. Newly leaked guidelines for the use of National Security Letters(NSL) have finally opened a window in to how little control 3rd parties, from Google, to the phone company, to Facebook have over the data of their users. NSLs allow for an FBI agent to request any type of data from a 3rd party provider, and then use a gag order to prevent the provider from speaking about the fact that the data has ever been requested. The newly leaked FBI guidance to these letters shows that NSLs are authorized without any judicial oversight. The letters only need the signature of a unit director at the FBI to obtain data from any provider, and are authorized explicitly for investigations that have nothing to do with national security, including FBI interest in journalistic sources. This type of surveillance has dubious legality, especially when utilized in pursuit of activist and sources that have nothing to do with terrorism or national security. It becomes even more dubious when evidence from these sources is used in criminal trials. The most striking use of information from these type of NLS may be its use when combined with “parallel construction”: the laundering of illegally acquired evidence into court proceedings.
Anyone who has watched the fifth Season of “The Wire” or season five of “The Good Wife” has seen fictional examples of how parallel construction may currently happen. But the most clear cut case of it use in current day prosecutions is through the Special Operations Division, a $125 million unit of the Drug Enforcement Administration (DEA), where Police officers are trained to utilize “parallel construction” to hide NSA data by covering it with fake witnesses. The use of this illegally acquired evidence in trials has therefore been hidden from attorneys, clients and the judiciary, threatening the integrity of the legal process as a whole. This startling practice undermines the Sixth Amendment right of defendants to know the evidence that is being used against them in an open court, and it destroys an attorneys’ ability to effectively serve their clients. The current vice chairman of the criminal justice section of the American Bar Association, James Felman, calls this domestic use of national security letters or NSA intercepts “outrageous” and “indefensible.” Nancy Gertner, a Harvard Law School professor and former federal judge, said that, “It sounds like they are phonying up investigations.” Prosecutors have begun investigation of clients based on this illegal electronic dragnet information. Unfortunately it is still unclear how many thousands of cases may be based on this type of illegal evidence.
But here in the Bronx the use of social media and conspiracy laws are taking a huge toll on black and brown youth. On the morning of April 27th, 2016 700 officers as well as helicopters and armored vehicles, from the NYPD gang squad, as well as the Drug Enforcement Administration, Immigration and Customs Enforcement, and the Bureau of Alcohol, Tobacco, and Firearms, swarmed the Eastchester Gardens projects and other public housing buildings in the Bronx. Eighty-eight, mostly young people were arrested in the sweep. The defendants were charged with racketeering conspiracy, narcotics conspiracy, narcotics distribution, and firearms offenses. This is the third raid of this type in as many years, with officers in riot gear raiding the Grant and Manhattanville Houses in West Harlem resulting in 103 indictments in 2013 and a similar raid months later which took place at East Harlem’s Taft, Johnson, and Lehman Houses in which 63 people were charged. This represents a practice that activists have begun calling “digital stop and frisk;” where questionable conspiracy charges, based on questionable social media evidence are combined into poorly constructed and overbroad gang conspiracy prosecutions.

It is not just young black and brown people who live in the projects that are being targeted with these questionable social media evidence and overbroad use of criminal charges for speech related crimes. People nationally active in the Black Lives Matter movement are also seeing a huge increase in police attention. Police nationally have begun campaign of arrests on the basis of social media posts concerning people allegedly threatening police or posting positively about self-defense, after the shootings in Dallas and Baton Rouge.

For example, in Detroit four men were arrested for posts on social media related to police violence including a tweet that said Micah Johnson, the man who shot police officers in Dallas, was a “hero.” Jenesis Reynolds, an Illinois woman, was arrested and charged with disorderly conduct for writing a Facebook post that allegedly stated “I have no problem shooting a cop for simple traffic stop cuz they’d have no problem doing it to me”.

What can activists or concerned citizens do to stop this overwhelming surveillance and broad attack on freedom of speech and association. This presents a huge task to anyone concerned with civil liberties, on the legal side there are local groups from the NLG to the ACLU that work on specific types of legal strategies. But on a more Individual level people need to understand that from a law enforcement perspective social media is public space. Although you may have privacy settings that can stop your mom or ex-partner from reading your posts, as far as Federal law enforcement is concerned every page, post, mail, like or click on Facebook, Twitter, or Google can be used as evidence against you in a court of law.
To properly deal with those concerns there are a number of excellent organizations who work to take user privacy seriously, don't collect data and refuse to comply with federal government requests for NSL information. For activist work where you want people to develop ideas and debate difficult topics freely it is important to protect everyone’s free expression, even when they say things that you may not agree with. There are a number of long running projects that exist to support activists maintain their constitutional rights while using digital communications. The first is, the second is Mayfirst (

Riseup has been active since after the WTO protests in 1999, they run an email service, a groupware network for organizing, pastebins for exchanging large files, a “google docs” type collaborative document writing and all of these are maintained by ensuring no data is saved. They have a warrant canary that they publish and update regularly, which will alert users they ever get significant requests for data or information from law enforcement. They also offer a VPN and allow people to sign up for and use services over Tor network to preserve their anonymity (something that Google, Facebook, Apple, and Twitter, don't allow.) Riseup is a non-profit collective that relies on individual donations to survive.

May first/Peoples link “engages in building movements by advancing the strategic use and collective control of technology for local struggles, global transformation, and emancipation without borders”. They redefines the concept of “Internet Service Provider” in a collective and collaborative way as a democratic membership organization with an elect a Leadership Committee and coop model where everyone pay dues collectively manage websites, email, email lists, and more.

    • Surveillance, Edit, 550 - jt.indypendent, Mon Aug 8 04:06
      By Jonathan Stribling-Uss Newly leaked guidelines for the use of National Security Letters (NSLs) have finally opened a window in to how little control third parties, from Google, to Facebook to the... more
      • Surveillance, 742 - jt.indypendent, Mon Aug 8 19:35
        By Jonathan Stribling-Uss Newly leaked FBI guidelines for the use of National Security Letters (NSLs) have finally opened a window in to how little control third parties, from Google, to Facebook to... more
        • Surveillance, 744 - jt.indypendent, Tue Aug 9 15:58
          By Jonathan Stribling-Uss Newly leaked FBI guidelines for the use of National Security Letters (NSLs) have finally opened a window into how little control third parties, from Google, to Facebook to... more
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